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The Pothole Protocol

Personal Injury claims against Highways Authorities for their failure to maintain the road can be difficult.

Section 41 of the Highways Act 1980 imposes a duty to maintain a road.  However, there is no duty to remove snow and ice and there is no duty, for example, to maintain road markings.

Gorringe v Calderdale Metropolitan Borough Council (2002) is an important case on the subject of whether a Highway Authority or local authority can be found to be negligent because they failed to maintain road markings. In the first instance the court held that there was a breach of duty. However, the court of appeal disagreed. It was held that a road marking was clearly not part of the physical or structural condition of the roadway.

“The provision of information, whether by street furniture or painted signs, is quite different from keeping a highway in repair”.

It was also held that an individual who had suffered damage because of a positive act which the authority had done to make the highway more dangerous could sue for negligence or public nuisance but not for the failure to maintain signs or road markings.

An example of a positive act giving rise to a negligence claim would be if the highway authority had, ‘created a trap’ for drivers by persuading them to rely upon a particular road layout and traffic flow priority, and then to change it without any warning or proper notification.

It seems clear then that drivers cannot rely upon Highway Authorities to warn them of prospective dangers on the roads. As Lord Rodgers said in his judgement:

“By insisting that drivers always look out for dangers themselves and not rely on others, the common law supports the overall policy of promoting road safety”.

Submission of claims

A recent case has considered whether claims against Highway Authorities can be submitted through the Low Value Streamlined Personal Injury Portal for road traffic accidents or the portal for Public Liability claims.

The case of Bateman v Devon County Council (HHJ Mitchell, Plymouth County Court, 2 September 2019) concerned a motorcyclist who was injured as a result of a poor road surface. The Claim was successful against the Highway Authority; however a disagreement arose about whether fixed costs under the Public Liability Protocol should apply.

The judge decided that claims against the Highways Authority do not fall under either the road traffic or the Public Liability Protocol. This means that the fixed costs regime arising from the Public Liability Protocol does not apply to these claims, and that Claimants are entitled to recover costs based on the time that they have spent on the claim.

For further information, please contact Emma Saville

Posted on Feb 10th, 2020 by Lyons Davidson

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