Accidents on the highway—duty to maintain
Accidents on the highway—duty to maintain

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Accidents on the highway—duty to maintain
  • Types of accidents
  • Definition of the highway
  • Highways repairable at public expense
  • Private highways
  • The scope of the duty
  • Establishing liability
  • Essential evidence

Types of accidents

A personal injury claimant who has been injured in an accident on a highway may claim that the maintenance, or the lack of it, of the highway itself was to blame for the accident. The types of accidents that may occur in this context include:

  1. pedestrians tripping over uneven or broken paving stones

  2. pedestrians falling into trenches or other highways works that are not sectioned off

  3. motor vehicle collisions with other motor vehicles or stationary objects

  4. cyclists being thrown off their cycle when going into a pothole or other defect

  5. motor vehicles or pedestrians slipping on ice, snow, standing water, or gravel and loose debris

Definition of the highway

Section 328 of the Highways Act 1980 (HiA 1980) states that a highway is the whole or any part of a highway, other than a ferry or waterway, whether or not it passes over a bridge or through a tunnel. However this section fails to define what a highway is and as a result the common law is still important when determining whether the claimant has been injured on a 'highway'. At common law, a highway is a legal right: a way over which there existed a public right of passage. This definition has been described as 'uncontroversial [and] well-settled'.

Consequently, broadly speaking, the definition in the HiA 1980 covers any road, street, path, pavement, passage

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