With Lambeth Council’s redefinition of potholes, classifying them as shallower in nature, Hazel James (associate solicitor in the insurance team at DWF) warns of consequences that could occur following judgment in Wilkinson v City of York Council.
South London’s Lambeth Council has established a novel way to deal with its road maintenance. The council, by reclassifying the definition of a pothole, has deemed that some of the gaps in the road no longer exist. Lambeth’s move is an effort to save money after recent parliamentary research revealed that £13bn was needed to repair England’s pothole problem.
Last year, the government cut road maintenance budgets throughout England by £432m. However, Transport Secretary Phillip Hammond recently announced that the government is making £2.2bn available over the next four years for such maintenance.
A further £200m will be available for councils to deal with the costs of the extreme winters experienced in the past two years but there is still likely to be a huge shortfall.
As a consequence, councils like Lambeth are trying to find new ways of saving money by cutting road maintenance costs and adjusting their frequency of inspection.
A stark warning
The council recently announced that holes which are less than one and a half inches deep will not be repaired. Previously, holes that were one inch deep were marked for repair work. The council has also reduced the frequency of inspections from three times to twice a year. It is thought that many other authorities will follow suit in a bid to cut costs.
One case that every council risk assessor should bear in mind when considering this option is the Court of Appeal decision in Wilkinson v City of York Council (2011). The judgment offers a stark warning to all local authorities who may be considering cutting budgets by deviating from the 2005 published Well-maintained Highways: Code of Practice for Highway Maintenance Management, which provides guidance on this important issue.
In Wilkinson, the claimant sought damages arising from an accident that occurred in May 2006. She was injured when the front wheel of her bicycle hit a pothole along Whitby Drive in York. The claimant suffered a fracture to her chin and other injuries and subsequently brought a claim against York council.
Whitby Drive falls into a category of highways inspected on an annual basis. The last inspection prior to the accident occurred approximately 10 months before the claimant’s accident. Her solicitors argued that an annual inspection, given the character of Whitby Drive, was insufficient and that it should have been inspected on a quarterly basis. Furthermore, the claimant relied upon the fact that the council had deviated from the established code of practice, adopting a different regime from the one stipulated, and had failed to give satisfactory reasons for doing so. However, the council argued that the code of practice was only a guideline.
Under cross-examination, the council’s highway inspector admitted that Whitby Drive had been designated as a carriageway only requiring an annual inspection due to financial and manpower resources. Initially, the judge concluded that Whitby Drive was unsuitable for an annual inspection due to the guidance provided in the code of practice. The judge found that financial constraints were not a good enough reason for departing from the code.
The defendant appealed. The circuit judge took a different view and accepted that York council’s resources should be considered a mitigating factor and that a balance should be struck between what rate payers could bear and how the resources should be allocated.
The claimant appealed and the matter was heard by the Court of Appeal earlier this year. The court rejected the council’s arguments and restored the decision taken by the earlier judge. In reaching its decision, the Court of Appeal looked closely at s58 of the Highways Act 1980. This section offers a defence for local authorities provided they can demonstrate that they did all that was ‘reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic’.
Financial grounds
This is clearly an objective judgment based on risk. Resources are not a consideration under s58, whereas they are a matter to be taken into consideration in relation to other powers under the Act. For example, s150, which relates to the court’s power to make orders in relation to the removal of obstructions from roads, expressly allows the court to consider manpower and resources.
S58 offers a defence to highway authorities who are able to demonstrate they have done all that is reasonable to make the road safe for road users, not authorities that decide to allocate resources elsewhere due to budgetary restraints.
Any deviation from the code of practice by a local authority to cut costs, either on intervention levels or frequency of inspections, will not afford it a defence by merely saying that it did so due to financial and staffing constraints. It is not a defence to say that because of unprecedented budget pressures, it was forced to re-evaluate an increase in intervention levels and response times and cut inspection frequencies to achieve the saving required by the coalition government.
The focus of these authorities has to be to assess the risk. With more than four million accidents occurring on the highway per year, the cost of pedestrian highway litigation has spiralled to an average of £16 400 per case, plus average damages of £11 800. Therefore, the question of what savings can actually be made by cutting manpower and service will have to be assessed very carefully.
Local authorities seeking to deviate from the code of practice may well be hit with an increase in costs as more and more claims made against them are successful.
Source: PostOnline
