Establishing the dangerous condition of highways
Establishing the dangerous condition of highways

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

  • Establishing the dangerous condition of highways
  • Duty of care
  • Assessing the defect
  • Well-maintained Highways—Code of Practice: Well-Managed highway Infrastructure
  • Cases—council’s own criteria and inspector’s opinion
  • Causation—precise defect or general area
  • Duty to guard against snow or ice
  • No duty to warn regarding the condition of the road
  • Practical tips

Duty of care

The duty of care to highway users is set out in section 41 of the Highways Act 1980 (HiA 1980), which simply provides that the highway authority is under a duty to maintain the highway.

The question for practitioners is whether the particular defect constituted a danger to the pedestrian or other road user likely to use that part of the highway.

The duty was expressed in Rider v Rider:

'It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected.'

The test for dangerousness is objective.

Accordingly, the task for the claimant, as described by Steyn LJ in Mills v Barnsley Metropolitan Borough Council, was to show that:

‘…that the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public…’

Assessing the defect

When establishing whether a defect made a highway dangerous, the size of the defect, in all its dimensions, is crucial. However, other factors, such as the location of the defect and the volume, characteristics and speed of traffic are also considered.

A series of cases in the 1960s held that a defect over one inch high was

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