Defences by the highway authority
Defences by the highway authority

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

  • Defences by the highway authority
  • The statutory defence
  • 1. Challenge the adequacy of the inspection
  • 2. Establish that the gap between the inspection and the accident was too great
  • 3. The authority should have taken action, but did not, following the inspection
  • Liability of other contractors
  • Common law defences

The statutory defence

As noted in the Practice Note: Establishing the dangerous condition of highways, the burden is on the claimant to establish a breach of section 41 of the Highways Act 1980 (HiA 1980) duty to maintain. However, once a breach has been established, a highway authority will have a statutory defence if it can prove it took such care as was reasonable in all the circumstances to ensure that the section of the highway was safe. The burden of proof is on the defendant.

HiA 1980, s 58(2) sets out the matters that the court will consider when assessing whether the defence will succeed:

  1. the character of the highway and the traffic that might be expected to use it

  2. the standard of maintenance appropriate for a highway of that character and used by such traffic

  3. the state of repair in which a reasonable person would expect to find the highway

  4. whether the highway authority knew, or ought to have known, that the condition of the highway to which the cause of action relates was likely to cause danger

  5. where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose what warning notices of its condition had been displayed

In the majority of highway claims, the key issue will be whether the council had

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