Potholes, rocking paving slabs and other defects on the road and pavements are an increasing problem and a danger to the people using them. It has lead to a huge amount of claims against the Council because pedestrians or road users have suffered a personal injury or vehicle damage.

A statutory duty to maintain was imposed on the local highway authority by s 44(1) of the Highways Act 1959, now s 41(1) of the Highways Act 1980 (HiA 1980), but, until s 1(1) of the Highways (Miscellaneous Provisions) Act 1961 came into force in 1964, that statutory duty gave rise to no liability in a civil action by a private individual for damages sustained by him/her as a consequence of mere non-repair. The rule was amended, by the inclusion, in s 1(2) in the 1961 Act, of a statutory defence. It was a defence in an action for damage resulting from non-repair for the highway authority to prove that it had taken such care as in all the circumstances was reasonably required to secure that that part of the highway to which the action related was not dangerous. The relevant provision is now found in s 58(1) of the HiA 1980.’

Therefore it would be reasonable to assume that if there were no records of inspection and no maintenance carried out on a stretch of a highway, which has resulted in a pedestrian being injured due to a defect on the highway, then the Local Council should be liable?

Unfortunately, it is not as clear cut as many pedestrians would believe. Firstly, the area where the injury occurred must be a highway maintainable at the public expense. In order, for a highway to be maintainable at the public expense, the highway authority must have subsequently adopted it.

The absence of adoption therefore creates the concept of a public highway not maintainable at the public expense. If this is the case then, a highway authority is not liable for any failure to maintain a public road. However, if the accident occurred on a street around the corner, where the road was adopted, then the highway would be liable for failure to maintain that road.

A highway may also be created by common law. This involves the dedication by a landowner of a public right of way across his land and the acceptance by the public of that right of way. In the case, who is responsible for maintaining this kind of highway? The landowners owe a duty both at common law and under section 2 (2) of the Occupiers liability Act (1957) to keep users reasonably safe for the purposes they are permitted to be on the premises.

However, it would be extremely difficult to be successful in a claim against the occupier of a highway under the Occupiers Liability Act (1957). This is due to the case of  McGeown v. Northern Ireland Housing Executive [1995]1 AC 233 (HL).  The claimant lived on a housing estate owned by the defendant housing authority. She tripped in a hole on a path through the estate. She sued the housing authority under the Occupiers’ Liability  Act  1957.  She lost  on  the basis that a person using a public right of way did so by right and could not, therefore, be a visitor/ licensee.

McGeown re-stated the rule in the old case of Gautret v. Egerton (1867). In that case the defendant failed to maintain a bridge properly, the bridge overtime became dangerous. As a result an individual drowned when he fell from the bridge. It was held by the Court of Common pleas that no actionable breach of duty on the part of the defendants had been disclosed.  It was said in that case:-

“It  may  be  the  duty  of  the  Defendants  to  abstain  from  doing  any  act which  may  be  dangerous  to  persons  coming  upon  the  land  by  their invitation or permission… But, what duty does the law impose upon these defendants to keep  their  bridges  in  repair?  If I dedicate  a  way  to  the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not.”

This is the defence of nonfeasance, doing nothing will not result in negligence. However, the Defendant must prove the existence of the highway. Therefore if a pedestrian is unfortunate enough to suffer a personal injury on a highway, which is not maintainable at the public expense, or there is  a valid defence of nonfeasance due to being public right of way, the claimants may well struggle to be successful. Its simply pot luck!!

If you or someone you know has been injured as a result of a pothole call our friendly solicitors today for a free consultation on 0161 207 2020

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