We look at the latest case on the extent to which a road user can hold the council liable to maintain the highway
The recent judgement in Thomas –v- Warwickshire CC has placed a wider burden upon councils in maintaining the highway. The Highways Act 1980 makes the relevant local authority responsible for the maintenance and repair of highways in its area- this includes repairing defects which present a reasonably foreseeable danger to traffic using that highway. In claims for injury caused by defects in the road or pavement, there is very often dispute between claimant’s solicitors and local authorities over what ranks as a “danger” and whether the authority had complied with its duty under the Act in repairing it.
Until recently, the law was clear that the council did not have to clear up surface deposits or obstructions lying on the road. For example, common hazards such as mud, wet leaves, grit, and dirt did not have to be removed by the council, even though they might well constitute a danger to road users. Every cyclist and motorcyclist will be ruefully familiar with such risks.
There is now an exception to that rule. In Thomas, the claimant was a cyclist riding in a group, two abreast, on a country road. He hit a dollop of concrete that had been left on the road and had hardened, forming a significant lump. He crashed and suffered serious head injury. (find out more about head injury claims by visiting our specialist head injury website at http://www.headinjurylaw.co.uk/)
The injured cyclist held the council liable for his accident and made a compensation claim. The council defended his claim, arguing that the concrete was a spillage on the road, just like mud or leaves, it was not part of the fabric of the highway, and they had no obligation to clear it away. The court disagreed, deciding that since it had not been cleared whilst still wet, it had hardened into a permanent (or certainly long-lasting) lump and become bonded to the surface of the road. This was a major factor in the court deciding that from then on, the concrete had in fact become part of the fabric of the road (even though not intentionally) and therefore it came within the existing duty to maintain and repair, just like any other part of the road. Therefore, if it presented a danger, the council was obliged to deal with it.
The other line of argument by the council was that the lump was not a “reasonably foreseeable danger”, because it was not on the line that a cyclist would normally be expected to take. It seems that the council’s highway inspector was well aware of the lump, but decided that since it was not in the area where car or lorry tyres would run, it was not dangerous. It was well away from the edge of the road.
Again, the court disagreed, saying that on a road such as this, which was in the country, cyclists would not necessarily be expected to ride in single file and close to the left hand edge of the road. The court decided that in fact the lump was in such a position that it was reasonably foreseeable that a cyclist might come into contact with it.
Therefore, the accident claim succeeded in principle; although the court then went on to reduce Mr Thomas’ compensation significantly because it decided he was partly to blame by riding in tight formation and very close to the cyclist in front. This prevented him from seeing the lump earlier and being able to avoid it.
This case raises the prospect of councils being liable for accidents caused not only by potholes and cracks in the road, but also for certain deposits on the road. This decision is likely to place even more pressure on councils to keep a close eye on roads around building sites and indeed where other road repairs are being carried out. It also makes clear that the position of the hazard may be relevant when deciding whether it is a foreseeable danger or not, which could be of importance not only to cyclists but to motorcyclists. The council cannot expect that all two wheel users will stick to a particular line on the road.