Claiming a breach of section 41 of the Highways Act 1980

Summary

The trial judge had been correct to dismiss the claimant’s claim as there was insufficient evidence that the alleged defect was a danger amounting to a breach of section 41 of the Highways Act 1980 (the Act).

Facts and evidence

The claimant cyclist broke her leg when she fell from her mountain bike after it encountered a defect in the carriageway. She brought a claim against the council on the basis that the defect was dangerous and amounted to a breach of section 41 of the Act. The council’s defence was simply that the defect was not dangerous. The highway had been inspected pre and post accident and no dangerous defects had been recorded at the location although the defect had been repaired after the claimant’s accident was notified to the council.

Trial and appeal

The trial judge dismissed the claim. Whilst it was accepted that the claimant had encountered a defect and fallen from her bike, the judge held that the claimant’s evidence (photographs and debatable measurements) as to the nature, size and depth of the defect was insufficient, stating “there is simply not enough reliable evidence of the dimensions or conditions of the pothole for me to say that it is more likely than not that it presented a real source of danger”. The decision was upheld on appeal on the basis that the trial judge had not erred and had made findings of fact that were open to him. It was also noted that, in addition to photographs of the defect, the judge had properly considered the evidence of the highway inspectors who had regularly inspected the location and had not identified any dangers.

Comment

This judgment is a useful reminder of some important legal principles common to highway claims:-

• The burden of establishing a breach of section 41 of the Act rests with the claimant.
• Evidence relevant to ‘danger’ includes not just photographs and measurements but also location information, inspection history, existence or otherwise of complaints and the opinion of inspectors.
• A post-accident repair is not necessarily evidence of breach of duty.
• Findings of fact by trial judges will often be difficult to overturn on appeal

Weightmans LLP’s Local Government Team acted for Kirklees Council in this case.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Lucie Evans, Legal Executive on 0161 214 0578 lucie.evans@weightmans.com or Suzanne Milne, Partner on 0161 233 7348 Suzanne.milne@weightmans.com