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Wilkinson Lives on in Crawley! (A Highway Authorities Lack of Resources Is Still Irrelevant to a Section 58 Defence) - Ian Pennock, Park Lane Plowden Chambers

12/06/17. The recent case of Crawley-v-Barnsley Metropolitan Borough Council [2017] EWCA Civ 36 confirms three main points established in the case of Wilkinson-v-City of York Council [2011] EWCA Civ 207 which has caused highway authorities difficulties because;

      1. It not only made a lack of resources irrelevant in considering a highway authority’s section 58 defence. But also;

      2. Endorsed the defendant highway authorities very own ‘National Code of Practice’ as a benchmark in considering whether or not they have exercised ‘reasonable care’ for the purposes of section 58 and by which they can be ‘hoisted by their own petard.’ As well as;

      3. Reinforcing the point that the correct interpretation of the interplay between sections 41 and 58 of the Highways Act 1980 is that the highway authority has either exercised ‘reasonable care’ (within the meaning of section 58) or not and it is not a defence to say that lack of ‘reasonable care’ did not cause or contribute to the Claimant’s accident.

Highway authorities continue to try and hide their ‘lack of resources’ as a reason for failing to exercise reasonable care (for the purposes of section 58) in increasingly imaginative ways (see, for example, the proposed new National Code of Practice) and attempt to argue that the case of TR v Devon [2013] EWCA Civ 418 means the utility of the National Code of Practice, in the courts consideration of their section 58 defence, is greatly diminished. They either do not understand the third point (or pretend not to understand it.)

The recent case of Crawley-v-Barnsley Metropolitan Borough Council [2017] EWCA Civ 36, was handed down on 2nd February 2017. Other than the fact that it was not reasonable for the highway authority to provide an out of hours response to reports of dangerous defects from the emergency services only (and then only on certain highways) and not to respond to reports of such defects from members of the public, “Crawley” applies and confirms the above three points from ‘Wilkinson.’

In ‘Crawley’ the highway authority received a report of (what transpired to be) a dangerous defect at 4.20pm on a Friday but an inspector did not attend until the Monday when he considered it ‘dangerous/actionable’ and ordered a 24 hour repair. In the meantime, on the Saturday, the Claimant injured himself upon it.

At first instance the District Judge found it was a breach of section 41 but the highway authority had the section 58 Defence available to it because, essentially, it was not unreasonable for the highway authority to restrict out of hours responses to reports from the emergency services only.

The Claimant appealed before H.H.J. Robinson who upheld that appeal on the basis that, amongst other things, if it was reasonable to deal with complaints reported on Monday to Thursday on the very next day, there was no justification, other than invalid resource based justification, for dealing with complaints made on a Friday any differently. The disgruntled highway authority appealed to the Court of Appeal.

Lord Justice Jackson in the lead judgment (but dissenting on unrelated points) considered, essentially, that it was not unreasonable for the highway authority to allow it’s employees the week-end off work. Briggs and Irwin disagreed (no doubt recollecting their time ‘on call’ during equally unsocial hours as ‘duty’ judges) and considered that, essentially, the highway authority’s failure to provide any ‘out of hours’ response whatsoever to a report from a member of the public (whereas it did so, in certain circumstances, for such reports from the emergency service) was flawed and therefore deprived it of the section 58 defence because it had not exercised reasonable care within the meaning of section 58. Therefore the highway authority’s appeal was dismissed.

In doing so the Court of Appeal has also reinforced it's prior view in “Wilkinson” that a lack of resources is an invalid excuse for failing to exercise reasonable care within the meaning of section 58. See paragraph 10 “I readily accept Toulson LJ’s Judgment [in Wilkinson] as accurately stating the law” or paragraph 34 “I readily accept that lack of resources is not a defence” per Jackson LJ.

As for the second point above established by ‘Wilkinson’ in relation to the National Code of Practice, Jackson LJ stated, (at paragraph 7) “That contains helpful and well-informed guidance but it has no statutory force.”

Despite that lack of statutory force Jackson LJ relied heavily on that "helpful and well-informed guidance" in the National Code of Practice to inform his consideration of the highway authorities contention that they had exercised ‘reasonable care’ for the purposes of section 58. See paragraphs 8 and 9 in “Crawley” where he actually sets out the provisions of the National Code of Practice.

Accordingly, this clearly establishes that the National Code of Practice gives much “helpful and well-informed guidance” to judges throughout the country in assessing a Defendant’s purported section 58 defence.

The third point in “Wilkinson” above derives from Toulson LJ citing Lord Denning, who in turn was citing Lord Diplock in Griffiths v Liverpool City Council [1967] 1 QB 374, at 391, where Lord Diplock stated;

“Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) [section 58] is not available to it. Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident."

This can sometimes appear counter-intuitive but can be readily illustrated by the typical case where the frequency of inspection is challenged by a Claimant who says the highway ought to have been inspected monthly but the highway authority only did so every 3 months. The Claimant need only establish a ‘dangerous’ defect ‘caused’ his injury and once he establishes that a breach of section 41 usually follows. If it is found that a monthly inspection was required then the highway authority ought to be deprived of the section 58 defence (the burden of proof being upon them).

It is not a defence for the highway authority to say (as typically happens - and happened in a case where the author represented a successful Claimant the day before the author wrote this article) that their routine three monthly inspection was actually in the month before the Claimant’s accident so whether they ought to inspect the highway every three months, or monthly, is ‘irrelevant’ (presumably because such a failure to inspect at the correct monthly frequency could not have ‘caused’ the Claimant’s accident).

Such a purported defence by a highway authority introduces issues of ‘causation’ which have no place in the consideration of a section 58 defence. A Claimant does not need to also establish that the highway authority’s lack of ‘reasonable care’ (within the meaning of section 58) ‘caused’ his accident.

Accordingly, a highway authority ought to remain deprived of its section 58 defence where it does not inspect the highway at the correct frequency even if it’s infrequent inspection co-incidentally fell within the time period of the correct (monthly, quarterly or six monthly) inspection period.

In “Crawley” this correct interpretation and application of the interplay between sections 41 and 58 is not only confirmed by Jackson LJ’s statement that "I readily accept Toulson LJ's judgment [in Wilkinson] as accurately stating the law" but also by Lord Justice Briggs (with whom Lord Justice Irwin agreed) at paragraph 43 where he stated;

"There was some discussion during the hearing of the first appeal and in this Court whether a system which had led to an inspection by the weekend on-call team, on the Saturday, would have prevented the claimant’s injury, if the pothole was repaired only on the following day i.e. the Sunday. But a Section 58 defence is not concerned with questions of causation in that way…In my judgment the council’s system failed the Section 58 test not because, had reasonable steps been taken, the injury would definitely have been prevented. It failed because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by somebody with the requisite skill out of working hours unless they came from members of the emergency services."

The cases of “Wilkinson” and “Crawley,” should always be borne in mind by all claimant P.I. lawyers when considering a highway case and form an essential part of their ‘toolkit’ for court.

Ian Pennock
Park Lane Plowden Chambers
(Ian Pennock is a Barrister specialising in Claimant Personal Injury work and represented the successful Claimant in the case of “Wilkinson.”)

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