Legal analysis: Councils should be forced to fix potholes immediately

Not quite true, but the headline was probably enough to grab the attention of The Daily Telegraph’s readers.

The Court of Appeal recently handed down judgment in Crawley v Barnsley Metropolitan Borough Council [2017] EWCA Civ 36, a case involving a jogger who tripped on a carriageway pothole which had previously been reported by a member of the public.

In a judgment which could put an increased strain on local authorities already stretched budgets, the Court of Appeal held that the Council’s failure to have an adequate system of dealing with complaints out of hours meant that it could not have the benefit of a section 58 defence.

The facts

• At 4.20pm on Friday 27 January 2012, a member of the public telephoned the Council to report the presence of carriageway potholes along a road categorised as a local access road, subject to annual inspection.
• The description given to the Council’s call centre was of “deep potholes” and the caller enquired as to when the road may be resurfaced.
• The Council’s system was to log the report on to the Council’s computer system and forward it on to the highways inspector.
• Only if the report came from the emergency services and the defect was on a main road, outside a school or hospital, would the complaint be referred to the emergency standby team.
• On the evening of Saturday 28 January 2012, the Claimant was jogging and as he crossed the same carriageway he stepped in the pothole and was injured.
• On Monday 30 January 2012, the highway inspector responsible for the carriageway read the message the call centre had recorded on the Friday evening, went to inspect the damage, noted the defect as a Category 1 defect and reported the defect for a 24-hour repair.
• On Tuesday 31 January 2012, the defect was repaired.

At first instance

The District Judge held that the pothole was “dangerous and actionable” but that the Council had a defence under section 58 Highways Act 1980 and dismissed the claim.

On appeal, the Circuit Judge held that the District Judge erred in finding that the report, by the member of the public, “did not give rise to any necessity to go out straightaway” and criticised the Council’s system of responding to reports of defects out of hours, finding that Council staff should be trained to evaluate reports from third parties about defects, and that, alternatively, they should be instructed to forward reports to an “on-call” highways inspector.

In the Court of Appeal

The Court of Appeal found, by a majority of two to one, in favour of the Claimant (with Jackson LJ dissenting).

What the Court agreed on

All three judges agreed that a lack of resources is not a defence, following Wilkinson v City of York.

Jackson’s dissenting judgment

Jackson LJ noted that section 58 requires the court to have regard to “all the circumstances”. He considered “the fact that most people do not work at weekends is a relevant circumstance, which the courts cannot ignore … A system whereby reported road defects are inspected the next working day (or immediately in cases of exceptional urgency) is not a perfect one, but in my view it is a reasonable one.”

The report of the potholes clearly called for action but this was not a matter which called for an overnight response, nor an urgent attendance by the emergency standby team during the weekend.

Responding to the report by inspecting the road the next working day and repairing the pothole the day after was sufficient, in his view, to satisfy section 58.

The majority judgment

The pothole was a Category 1 defect which required immediate attention, either by repair, or by being rendered safe, and repaired as soon as possible thereafter.

A system for responding out of ordinary working hours to reports of potentially serious defects may be reasonable even if it might not, on the facts, have prevented the injury.

The Council’s system failed the section 58 test not because, had reasonable steps been taken, the injury would have been prevented; rather, it failed because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless they came from members of the emergency services.

Having a less well-staffed system for responding to reports of highway defects out of working hours could be a relevant consideration under section 58, but the system needed to ensure there was some way to evaluate reports of potentially serious and dangerous defects received out of hours.

Implications for local authorities

The decision is on a relatively narrow point, considering the adequacy of a Council’s system for responding to reports of serious defects made out of hours.

The Court of Appeal found that the Council’s system of leaving reports of serious defects until the next working day, unless received by the emergency services, was inadequate, when the Code of Practice in force at the time required “prompt attention” for defects which represent an immediate or imminent danger.

The decision is a reminder to local authorities that they need to have a reasonable system in place for responding to reports made out of hours of defects which represent an immediate or imminent hazard.

In practical terms, local authorities will need to review their system for assessing and responding to out-of-hours reports of dangerous defects. This could mean an assessment being carried out by properly trained call-centre staff, an out-of-hours standby repairs team or an on-call highways inspector. This could have unwelcome budgetary implications at a time when most local authorities are looking to reduce, rather than extend, services.

Well-managed highway infrastructure

The decision considered the last edition of Well-Maintained Highways. With all authorities required to review their highways policies in order to implement the new Well-managed Highway Infrastructure, now would be a good time to consider what systems they have in place to deal with out-of-hours reports of serious defects.

The new Code implements the concept of affordability and while the issue of resources was not argued in the present case, the Court of Appeal was quite clear in restating that a lack of resources cannot justify a failure to provide a reasonable system. This is an argument that will undoubtedly be brought back before the courts and perhaps it is time for the courts to consider the practical effect that years of reduced budgets has had on highways authorities and the level of service they can be expected to provide.

The new Code also notes that feedback from members of the public, particularly with the use of smartphones, is an increasing source of information on the condition of all aspects of the highway network. Councils using information from members of the public are encouraged to ensure they have an efficient system for logging and managing reports as well as appropriate quality assurance measures in place to check reports by the public.

Perhaps if Barnsley Metropolitan Borough Council had already implemented the new Code, the decision would have been different.