Wilkinson lives on in Crawley
Highway authorities face a bumpy road when attempting to establish a defence for failing to exercise reasonable care, thanks to recent case law, writes Ian Pennock
The case of Wilkinson v City of York Council  EWCA Civ 207 has rightly caused highway authorities difficulties. First, it made a lack of resources irrelevant in considering a highway authority’s defence under section 58 of the Highways Act 1980.
Second, it endorsed the highway authorities’ very own national code of practice as a benchmark in considering whether or not they have exercised ‘reasonable care’ for the purposes of section 58, by which they can be hoisted by their own petard.
Third, it reinforced the point that the correct interpretation of the interplay between sections 41 and 58 of the 1980 Act is that the highway authority has either exercised ‘reasonable care’ (within the meaning of section 58) or not, and it is not a defence to say that lack of ‘reasonable care’ did not cause or contribute to the claimant’s accident.
Highway authorities continue to try to hide lack of resources as a reason for failing to exercise reasonable care (for the purposes of section 58) in increasingly imaginative ways (see, for example, the proposed new national code of practice), and erroneously attempt to argue that the case of TR v Devon County Council  EWCA Civ 418 means the utility of the national code of practice, in the court’s consideration of the section 58 defence, is greatly diminished. They either do not understand the third point, or pretend not to.
The judgment in the recent case of Crawley v Barnsley Metropolitan Borough Council  EWCA Civ 36 was handed down on 2 February 2017. Other than the fact that it was not reasonable for the highway authority to provide an out-of-hours response to reports of dangerous defects from the emergency services only (and then only on certain highways) and not to respond to reports of such defects from members of the public, Crawley applies and confirms the three key points from Wilkinson.
In Crawley the highway authority received a report of (what transpired to be) a dangerous defect at 4.20pm on a Friday but an inspector did not attend until the Monday, when he considered it ‘dangerous/actionable’ and ordered a 24-hour repair. In the meantime, on the Saturday, the claimant injured himself upon it.
At first instance the district judge found it was a breach of section 41 but the highway authority had the section 58 defence available to it because, essentially, it was not unreasonable to restrict out-of-hours responses to reports from the emergency services only.
The claimant appealed before HHJ Robinson, who upheld that appeal on the basis that, among other things, if it was reasonable to deal with complaints reported on Monday to Thursday on the very next day, there was no justification, other than an invalid resource-based justification, for dealing with complaints made on a Friday any differently. The disgruntled highway authority appealed to the Court of Appeal.
Jackson LJ in the lead judgment (but dissenting on unrelated points) considered, essentially, that it was not unreasonable for the highway authority to allow its employees the weekend off work. Briggs and Irwin LJJ disagreed (no doubt recollecting their time on call during equally unsocial hours as duty judges) and considered that, essentially, the highway authority’s failure to provide any out-of-hours response whatsoever to a report from a member of the public (whereas it did so, in certain circumstances, for such reports from the emergency services) was flawed, and therefore deprived it of the section 58 defence because it had not exercised reasonable care within the meaning of section 58. Therefore the highway authority’s appeal was dismissed.
In this case the Court of Appeal has also reinforced its prior view in Wilkinson that a lack of resources is an invalid excuse for failing to exercise reasonable care within the meaning of section 58 (see Jackson LJ’s statements that ‘I readily accept Toulson LJ’s judgment [in Wilkinson] as accurately stating the law’ and ‘I readily accept that lack of resources is not a defence’).
National code of practice
As for the second point established by Wilkinson in relation to the national code of practice, Jackson LJ stated: ‘That contains helpful and well-informed guidance, but it has no statutory force.’
Despite that lack of statutory force, Jackson LJ relied heavily on the national code of practice to inform his consideration of the highway authority’s contention that it had exercised ‘reasonable care’ for the purposes of section 58.
Accordingly, this clearly establishes that the national code of practice gives much ‘helpful and well-informed guidance’ to judges throughout the country in assessing a defendant’s purported section 58 defence.
Issues of causation
The third point arising from Wilkinson derives from Toulson LJ citing Lord Denning, who in turn was citing Lord Diplock in Griffiths v Liverpool City Council  1 QB 374: ‘Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) [section 58] is not available to it. Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident.’
This can sometimes appear counter-intuitive but can be readily illustrated by the typical case where the frequency of inspection is challenged by a claimant who says the highway ought to have been inspected monthly but the highway authority only did so every three months. The claimant need only establish a ‘dangerous’ defect ‘caused’ their injury and a breach of section 41 usually follows. If it is found that a monthly inspection was required then the highway authority ought to be deprived of the section 58 defence (the burden of proof being upon it).
It is not a defence for the highway authority to say (as typically happens – and happened in a case where I represented a successful claimant the day before writing this article) that its routine three-monthly inspection was actually in the month before the claimant’s accident and so the question whether it ought to inspect the highway every three months or monthly is ‘irrelevant’ (presumably because such a failure to inspect at the correct monthly frequency could not have ‘caused’ the claimant’s accident).
Such a purported defence by a highway authority introduces issues of causation which have no place in the consideration of a section 58 defence. A claimant does not need to also establish that the highway authority’s lack of ‘reasonable care’ (within the meaning of section 58) ‘caused’ their accident.
Accordingly, a highway authority ought to remain deprived of its section 58 defence where it does not inspect the highway at the correct frequency, even if its infrequent inspection coincidentally fell within the time period of the correct (monthly, quarterly, or six-monthly) inspection period.In Crawley this correct interpretation and application of the interplay between sections 41 and 58 is not only confirmed by Jackson LJ’s affirmation of Toulson LJ’s judgment in Wilkinson, but also by Briggs LJ (with whom Irwin LJ agreed), where he stated:
‘There was some discussion during the hearing of the first appeal and in this court whether a system which had led to an inspection by the weekend on-call team, on the Saturday, would have prevented the claimant’s injury, if the pothole was repaired only on the following day, i.e. the Sunday. But a section 58 defence is not concerned with questions of causation in that way… In my judgment the council’s system failed the section 58 test not because, had reasonable steps been taken, the injury would definitely have been prevented. It failed because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by somebody with the requisite skill out of working hours unless they came from members of the emergency services.’
The cases of Wilkinson and Crawley should always be borne in mind by claimant personal injury lawyers when considering a highway case and form an essential part of their ‘toolkit’ for court.
Ian Pennock is a barrister at Parklane Plowden and represented the successful claimant in Wilkinson