Local authority resources and section 58 of the Highways Act 1980Thursday 15th September 2011
The Court of Appeal judgement in the case of Wilkinson v City of York Council is, on the face of it, a crushing blow to highway authorities. The road in this case should have been inspected every three months. Due to limited financial resources, the local authority only inspected the road annually - the last inspection being 10 months before the accident.
S58 provides a defence to claims against a Highway Authority for failing to maintain the structural condition of highways. However, the defence will succeed only if the local authority can show that it has done all that was "reasonably required" to make the road safe for users.
In Wilkinson, the Appeal Court held that a local authority's resources should not be taken into account when deciding whether they have a defence under s58 of the Highways Act 1980. Toulson LJ considered that any reliance on limited resources would undercut the purpose of imposing an absolute duty of maintenance on a highway authority.
This judgment is inconsistent with previous decisions of the Court, which have favoured a more balanced approach between private and public interests in relation to the Highways Act. In particular, judges have in the past expressed the clear view that resources are a relevant consideration under s58. A discussion of what is "reasonably requird" has also been a prominent feature in the debate. In Wilkinson Toulson LJ concluded that this is an objective test based on the risk of injury arising from various factors set out in s58(2) (of which financial resources is not a factor). However, judges in previous cases have favoured a concept of reasonableness which balances all considerations, including the authority's financial constraints.
Even under Toulson LJ's strict interpretation of the s58 defence it seems that there may be room for financial resources and other similar considerations to be indirectly considered under s58 (2). It would seem illogical to try and assess, for example, "whether the authority knew or should reasonably have been expected to know of a relevant defect" without considering the labour force available and the budget at their disposal for carrying out inspections.
Local authorities must, however, pay attention to any codes of guidance when discharging the statutory burden under s41 of the Highways Act. If they wish to depart from the code of guidance they should ensure that these decisions have been properly recorded and passed through a thorough consultation process at an executive level.