RTA : Local authority – Highways Act 1980 – non-statutory code of practice - contributory negligence
TR v Devon County Council
30 April 2013
Court of Appeal
Of particular interest to local authorities in this Court of Appeal highways decision is the Court’s approach to the Code of Practice “Well Maintained Highways” and its reminder that its recommendations are not mandatory. John Morrell examines the approach taken in this case and the substituted finding of 50% contributory negligence for the driver’s significant failure to keep a proper look out.
In our April 2012 Legal Update we reported on the High Court decision in this case which involved a serious accident on a country road near Honiton. A Land Rover crashed while attempting an overtaking manoeuvre in the course of which the off-side wheels of the Land Rover encountered rutting at the right hand side of the carriageway which had been caused by previous over-riding by heavy vehicles. The driver of the Land Rover, TR, admitted liability to his passengers and claimed an indemnity from Devon County Council (DCC) as highway authority responsible for maintenance of the road.
At trial, Slade J held that Devon County Council was in breach of its duty to maintain the highway and awarded TR a full indemnity.
Court of Appeal findings
Lord Justice Lloyd, Lord Hughes of Ombersley and Sir Stanley Burnton:
Was there a failure to maintain the highway under Section 41 of the Highways Act 1980?
Yes. The Court of Appeal was in no doubt that the Judge had been entitled to find that the road was, in places at least, dangerous. DCC submitted that TR had to show that the road was dangerous where the accident occurred, attempting to draw an analogy with pavement tripping cases such as James v Preseli Pembrokeshire DC . The Court of Appeal took the view, however, that the circumstances were not analogous. TR‟s vehicle was travelling forward at 45mph. Although it entered the rut at the edge of the carriageway before its widest part, the vehicle passed quickly onto the widest part of the rut, which was, on any analysis, dangerous. The judge held that the rut caused TR to lose control and that this was enough to demonstrate a breach of s.41 which caused the injuries.
Did DCC have a defence under s.58 Highways Act 1980?
No. The Court of Appeal criticised Slade J‟s approach to this question, but agreed with her conclusion that the statutory defence had not been made out.
The principal issue was whether the road had been inspected frequently enough. The Code of Practice: “Well Maintained Highways” suggested a monthly inspection regime. In fact, DCC had a six monthly inspection regime for the road. The Code of Practice also provided that where highway authorities decide, in the light of local circumstances, to adopt standards which differ from those suggested in the Code: “It is essential for these to be identified, together with the reasoning for such differences.”
On the evidence, the six monthly inspection regime was long-standing. DCC did not carry out a risk assessment and there was no record of any consideration or review of its reason for departing from the regime in the Code of Practice.
In support of its case, DCC produced evidence from other highway authorities which departed from the inspection frequency set out in the Code of Practice for this type of road. They also pointed out that the neighbouring County, Somerset County Council, had a three monthly inspection regime for this same road when it entered their County.
Slade J had concluded that DCC failed to make out the statutory defence because it had not justified its departure from the recommended inspection interval referred to in the Code. Not only did she decide that six monthly inspections were insufficient, but also that only monthly inspections, as set out in the Code, would discharge the duty to take reasonable care.
The Court of Appeal criticised Slade J‟s approach. They drew attention to the fact that the Code of Practice is non-statutory and does not set out mandatory rules. It is evidence of good practice. In the view of the Court of Appeal:
“The advice [in the Code] to make explicit reasons for adopting different policies is clearly wise, given the exposure of highway authorities to the possibility of litigation. But, it is advice, not a rule. It cannotamount to a rule that it will of itself be a want of reasonable care to adopt a different inspection interval unless some particular process of reasoning is passed through, and set out somewhere in writing; if it did, that also would be to make the code a mandatory instrument.”
There was evidence that DCC had previously compared its road maintenance manual with the current Code, and this showed that DCC had asked itself whether it ought to alter its practice. Slade J had considered that evidence of a risk assessment was required to justify a departure from the Code, but this was too exacting a requirement. Similarly, her criticism that DCC had simply continued its previous inspection regime was not justified. It had been applied to this type of road for a significant period without problems, which was in itself some evidence that reasonable care was taken. In all the circumstances, the Court of Appeal considered that the judge’s finding that DCC‟s adoption of an inspection frequency of six months for this type of road generally was a want of reasonable care, could not stand as it was founded on an erroneous approach to the Code of Practice.
The Court of Appeal turned, however, to the Judge’s finding that this particular road called for greater frequency of inspection. Although, to some extent, this finding was based on her incorrect approach to the Code of Practice, nevertheless there was evidence that on almost all highway inspections of this road, significant safety defects calling for immediate or urgent repair had been found. There was also evidence that DCC knew that this road was subject to overriding damage of the kind which was involved in the present accident. In the circumstances, there was sufficient evidence to justify the Judge’s decision that this particular road needed inspection at shorter intervals than six monthly.
The Judge had held that there was no contributory negligence on the basis that there was no excessive speed and that TR‟s over steering in trying to escape from the rut did not amount to a lack of care on his part. The Court of Appeal held, however, that the poor condition of the road was visible and that TR had made an error in not seeing the damaged area of the road and avoiding it. This error amounted to a significant failure to keep a proper lookout and accordingly a finding of 50% contributory negligence was appropriate.
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