Does your System of Inspection stand up to scrutiny?

Crawley v Barnsley Metropolitan Borough Council  -  [2017]EWCA Civ 36

Section 58 of the Highways Act 1980 offers a statutory defence for Highway Authorities if they can show that they had taken reasonable measures to ensure that problems such as potholes are found and dealt with swiftly. Wilkinson v. City of York Council [2011] EWCA Civ 207 established that lack of resources is not a good reason for having an inadequate system.

Your 'reasonable system' may be well established and follow national recommended standards for highway maintenance, but a recent case invites the question: is it robust enough?

In Crawley a member of the public reported a pothole to the highway authority at 4.20pm on a Friday.  The system was that defects are inspected on the next working day (in this case Monday), unless it was reported by the emergency services or was in a sensitive location. The decision to delay inspection was quite simply due to lack of resources.

On Saturday evening Mr Crawley was out jogging, fell in the pothole and was injured. The judge at the first hearing found that the pothole was "dangerous and actionable" but that Defendant's system was reasonable. Mr Crawley appealed. An appeal to a high court judge reversed that decision and found in favour of Mr Crawley.

The key question for the Court of Appeal was whether it was reasonable to have a 'next day' service for defects except at the weekend.

Jackson LJ’s view was that the system of inspection was reasonable, he highlighted that S58 refers to the of a system as being reasonable in all the circumstances, in this case a 'weekend' could be regarded as a 'circumstance'. 

He was however in the minority, and it was held that the system in place gave rise to a real risk that the pothole may have been a "serious and dangerous" Category 1 defect that needed immediate attention.  As such the system of inspection was defective - it had a built in flaw, i.e. that reports were not evaluated out of working hours. It was reasonable to have reduced staff and activity over a weekend, but there had to be some means of assessing the risk.

Matthew White of St Johns Chambers suggests that some Authorities might take the view that accidents happening between report of a defect and its examination by an inspector are sufficiently rare that they don’t need to do anything.

Perhaps a better solution would be for highway authorities to train staff to make an assessment of the danger over the phone. Call handlers will need to be trained to assess the accuracy of the report and/or to test it with probing questions.

Whichever solution is found, it will be an unwelcome decision in these increasingly austere times.