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PI and Civil Litigation

Law - practice - procedure

03 JUL 2013

Devon CC v TR [2013] EWCA Civ 418

Highways - breach of s 41 - s 58 defence

Departure from the ‘Well maintained highways' Code of Good Practice can be justified on the facts but in the instant case the Court of Appeal held that the evidence pointed to an inadequate system of inspections.

30 April 2013

Court of Appeal

Lord Justice Lloyd, Lord Hughes of Ombersley and Sir Stanley Burnton 

TR brought a claim for damages following a road traffic accident that he alleged occurred as a result of a failure to maintain or repair the highway on the part of Devon CC.  A breach of s41 Highways Act 1980 was made out.  Devon CC sought to run a s58 defence relying upon their regime of six monthly inspections.  However, the oft-cited "Well Maintained Highways" code of good practice produced by the Local Government Association and others suggested that the road ought to have been subject to monthly inspections. 

The Court of Appeal held that departure from the code was not necessarily fatal to a s 58 defence.  The code is simply evidence of good practice and if, as was the case here, a Highway Authority could demonstrate that an assessment of the highway and consideration of relevant factors had been performed, a departure could be justified.  However, having considered all of the evidence (which crucially included evidence that the relevant stretch of road had at one time been inspected monthly with defects regularly identified on such inspections) the Court of Appeal upheld the finding at first instance that this road needed inspection at shorter intervals than six monthly.  The section 58 defence therefore failed. 

Appeal dismissed (on liability but not contributory negligence)

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