Liability under s.41 Highways Act 1980 only arises where there has been a failure to maintain the 'fabric' of the highway. Liability for street apparatus such as a water stop tap cover falls within s.41 Highways Act 1980, whereas liability for street furniture such as a road sign or a safety barrier will fall outside s.41 Highways Act 1980 ('the Act') and be determined solely by the common law principles of negligence.1
In David Berry v (1) Vale of Glamorgan (2) Welsh Water  4 WLUK 623 the claimant brought a claim for damages for personal injury sustained when he tripped on a defective water stop tap cover. Despite the defective cover being found to be a dangerous defect under s.41 of the Act the claim was dismissed against both the highways authority and water company.
Section 58 Defence
A visual inspection, as provided by the highway authorities policy, carried out less than three months pre-accident did not identify the defective cover whereas a physical inspection would have identified that when stepped upon the cover tipped creating a tripping hazard. Prior to the date of the accident there were no complaints of the defective cover. HHJ Timothy Petts found that the highways authority had complied with its policy and in so doing had taken such care as was reasonably required to secure that the highway was safe and thus could rely upon its defence under s.58 Highways Act 1980.
HHJ Timothy Petts commented:
'It is a matter of common-sense and trite law that not every risk requires precautions to guard against that risk. Here, I find that the risk of injury occurring on defective equipment which could not be seen to be defective save with a physical examination is a risk of a very low order...it would in my view, be completely disproportionate to require checking of all items of equipment in the way that is being said [physical inspection of each cover]'.
The water company discharged the duty it owed to the claimant by relying upon a reactive system of dealing with complaints from members of the public or otherwise passed to the water company. The system was found to be reasonable given the number of claims, the level and nature of the risks and the number of likely problems that there would be in any event. Requiring the water company to carry out its own inspections was found to be a disproportionate duplication of effort.
In Price v Oxfordshire County Council  7 WLUK 167 the claimant was cycling along a cycle/pedestrian path after sundown when he collided with a street signpost positioned on the unbroken white line dividing the shared cycle/pedestrian pathway. At first instance Deputy District Judge Stonham found the defendant 1/3 liable for the accident. On appeal Her Honour Judge Melissa Clarke upheld the appeal and ordered a re-trial finding that the Judge had misdirected himself on the law and/or failed to apply the law correctly by failing to take into account all relevant matters on the danger test. Her Honour Judge Melissa Clarke having reviewed the authorities summarised the applicable law which can be distilled under 4 headings:
Duty of care
The common law has only ever imposed a duty to do what was reasonable (or avoid doing that which was unreasonable) in all the circumstances.2
Test of Dangerousness
All that one can say is that the test of dangerousness is one of reasonable foresight of harm to users of the highway and that each case will turn on its own facts. Not all foreseeable risks give rise to a duty to take remedial action.3
The court has to consider the chances of an accident happening, the potential seriousness of an accident and the measures that could be taken to minimise or avoid the accident.4
The law has to strike a balance between the nature and extent of the risk on one hand and the cost in time and money of having to identify and eliminate it on the other.5
Was it something more than the everyday risk which pedestrians inevitably face from normal blemishes? 5
Discharge of Duty
The duty is discharged by taking such care as in all the circumstances is reasonable to see that a visitor will be reasonably safe, not to take such care as would guarantee their safety.5
In Rokicki v Northern Gas Networks Ltd  (unreported, County Court at Bradford) the claimant alleged that she had tripped over a fallen safety barrier at night and sustained personal injury. The safety barrier had been erected by the gas company to protect users of the highway in respect of a hole in the pavement due to a gas leak. The safety barrier had a large sign notifying members of the public of who to call if there was a problem with the safety barrier. The gas company relied upon receiving complaints from members of the public and a system of inspection consisting of inspections every 7 days, taking pre-emptive action when high winds were forecast in either weekly or daily weather reports and adhoc drive by inspections when drivers were for example attending another job close by.
Deputy District Judge Phillipson finding the appeal decision in Price helpful dismissed the claimant's claim finding that the safety barrier even when lying down was not a real source of danger and thus the gas company was not required to take further steps to discharge the duty it owed to the Claimant.
- Liability under s.41 Highways Act 1980 only arises where there has been a failure to maintain the 'fabric' of the highway.
- Even where a defect in street equipment is found to be dangerous under s.41 Highways Act 1980 a highways authority can escape liability if it can rely upon a s.58 defense. A water board can also escape liability where it has a reasonable system in place that discharges the duty it owes to users of the highway and can rely upon the inspections carried out by the highways authority.
- In assessing whether a defendant is liable in negligence in relation to street equipment the Court is required to apply the test of dangerousness, carry out a risk analysis and assess whether the duty owed to users of the highway has been discharged.
1. Shine v Tower Hamlets LBC  EWCA Civ 852 [paragraph 14]
2. Yetkin v Mahmood & London Borough of Newham  EWCA Civ 776
3. Mills v Barnsley Metropolitan Borough Council  1 PIQR P291
4. Lewis v Wandsworth Borough Council  EWHC 3205 (QB)
5. Dean & Chapter of Rochester Cathedral v Debell  EWCA Civ 1094
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.