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Local authority: Trip on cobblestone - Highways Act 1980 – s.58 defence – conscientious annual inspection

Barker v Lancashire County Council
23 May 2013
Court of Appeal

In order to establish a claim for breach of duty to maintain the highway under Section 41 Highways Act 1980, a Claimant must identify the particular defect which caused the injury. It is not enough to point to a generally unsatisfactory area of pavement. The Court of Appeal has now indicated that similar considerations apply to the statutory defence provided by Section 58 Highways Act 1980.


The Claimant tripped over a cobblestone which was protruding by about 25mm. The Judge held that this was enough to amount to a failure to maintain the highway and therefore a breach of Section 41 of the Highways Act 1980. The case turned on the statutory defence. The Council had an annual inspection system for the location which was considered adequate. The last inspection had taken place eleven weeks before the accident.

Findings at trial

The Judge accepted that at the time of the inspection, the cobblestone in question had been protruding by no more than about 15mm and had not represented a danger. The highway inspection had been carried out conscientiously and in the circumstances the Council’s statutory defence under Section 58 of the Highways Act 1980 succeeded.

The Judge, however, went on to comment that the area generally, namely cobblestones surrounding a “tree pit” in the highway, had contained several loose cobblestones which might have caused the highway inspector to arrange for the relaying of the area, including the cobblestone in question, before the date of the accident. The Judge said that if he had been entitled to take into account the state of the area of the highway as a whole, he might have held that the Council had failed to discharge its burden of proof under Section 58 of the Highways Act 1980. The Claimant appealed, relying on this comment by the Judge.

Court of Appeal findings

Longmore LJ , Mcfarlane LJ and Sir Stanley Burnton dismissing the Claimant’s appeal:

  • In an action alleging breach of duty to maintain the highway under Section 41 of the Highways Act 1980, Section 58(1) of the Act provides:

“…It is a defence…to prove that the Authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic”

  • The Claimant submitted that the Judge had been entitled to have regard to the general state of the highway in the area where the accident happened, and that in view of its overall poor state, at the time of the highway inspection, the Council had not made out its statutory defence under Section 58 of the Highways Act 1980. In fact, the Court of Appeal considered that the point was not open to the Claimant to argue in the light of the Judge’s clear finding that the highway inspectors were “diligent and experienced inspectors who would see and repair any dangerous defects”. How could it be argued that the inspectors could have missed any potential danger stemming from the untidiness of the tree pit?
  • In the circumstances, the Court of Appeal only commented on the Claimant’s submission “obiter”. They said that the phrase in Section 58(1) of the Highways Act 1980: “…the part of the highway to which the accident relates…” was more apt to describe the actual feature that caused the injury to the Claimant (the protruding cobblestone) rather than a wider or more generalised area of the highway (the area around the tree pit) which did not cause any injury in the case before the Court.


Technically, the point has not been decided by the Court of Appeal and remains open to argument at a later date. However, this case contains a useful indication from the Court of Appeal that, like Section 41, the aim of the statutory defence under Section 58 is directed at the particular defect which caused the Claimant’s accident.

For further information, please contact John Morrell, Director, Casualty team on 0207 645 9538 or at john.morrell@dwf.co.uk

By John Morrell

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.