Accidents on the highway

Accidents on the highway—duty to maintain?

The Highways Act 1980 (HiA 1980) 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'. Broadly speaking, the definition in the HiA 1980 covers any road, street, footpath, pavement, passage or right of way over which there is a public right of passage.

If an accident on the highway is caused by a defect resulting from a failure to maintain the highway under HiA 1980, s 41 practitioners will need to consider the following:

1. •

   did the accident occur on a public highway? This will depend on whether the highway was ‘a highway maintainable at public expense’ under HiA 1980, s 36

2. •

   did a defect on the highway cause the accident?

3. •

   was the defect due to a failure to maintain the highway contrary to HiA 1980, s 41?

4. •

   did the defect in question pose a reasonable foresight of harm to users of the highway and was it a real source of danger?—see Practice Note: Establishing the dangerous