The local highway authority, which is usually the council, has a duty of care to maintain the safety and usability of roads that are kept at public expense. These responsibilities are set out in the Highways Act 1980, which stipulates that if a highway agent can demonstrate that they made adequate provision for upkeep and safety as can be reasonably expected, a defence will be in place for any claims made against them.
The following article explains the duties of the Highway Authority, their rights and responsibilities and how they are influenced by the Highways Act 1980.
Who is the Highway Authority?
The right highway authority for each person will depend upon location. In the majority of areas, county councils or metropolitan councils will serve as the main authority. In London, the authority will be either a borough council or Transport for London.
In some cases, a district council, parish council or community council will serve as the authority for roads in that area. Their authority will be granted by the main highway authority, and this will mean that responsibility for road maintenance will be passed on to them.
None of the authorities above are required to improve roads in their area, only maintain them. The duty of a highway authority is to maintain the road to ensure that it is safe and can handle the ordinary amount of traffic that uses that highway or that can be expected to make use of it.
Duties of Highways Authorities
There are a number of legal duties that must be observed by each highway authority to ensure that roads are safe and passable. This includes:
- To maintain public roads to a standard that ensures they are safe and passable
- To make adequate provisions to ensure that safety measures are in place for adverse weather conditions, such as icy pavements and roads.
- To recognise the character of each road within their care to ensure that it is maintained effectively for the volume and type of traffic use.
- To ensure appropriate warning signs are in place for any dangers on the road
- To maintain adequate records of works and repairs carried out on the road
- Make repairs as swiftly as possible to any known damages to the road and to ensure that any damage that isn’t immediately fixed is communicated to road users.
If a claim is made against a highway authority, to provide a satisfactory defence, the agency must be able to prove that they had not breached their duty of care and that all reasonable measures had been taken to prevent harm to road users.
Can I make a claim against the Highway Authority?
If you suffered an injury due to a road defect and want to claim compensation, the first thing you should do is contact a personal injury lawyer. If your case has merit, they will offer you a no win no fee service and help you identify the highway authority responsible for your accident. Depending on where the accident took place, this could be:
- A county council or metropolitan district council
- Transport for London, borough councils or the Common Council of the City of London
- The National Highways, formerly known as Highways England
Not every road defect will make the highway authority liable for your injuries. To have a valid claim, you must prove that:
- The road where your accident took place was not reasonably safe
- The highway authority acted negligently, causing the road to be dangerous
- Your accident was due to foreseeable unsafe road conditions
- The accident caused you an injury and financial damages
The above highway authorities are not only responsible for maintaining the road system but also for maintaining footpaths. Hazards such as raised paving slabs, missing kerb stones, potholes, or faulty street furniture such as bollards causing a slip, trip or fall accident may also entitle you to claim compensation.
Any time a road or pavement accident occurs, it is essential to gather as much evidence as possible to support a future claim, such as:
- Take photographs of the road defect that caused your accident. Try to use a ruler or an everyday object to help demonstrate the size of the defect in the photograph.
- Take pictures of any damage to your vehicle or other personal items and visible injuries.
- Get the names and contact details of any witnesses to the accident.
- Report the accident to your local council or the responsible authority and ask for a signed copy of the accident report.
- If any CCTV cameras have captured your accident, try to secure a copy of the footage before it gets deleted.
- Keep track of all the financial losses you incurred because of your accident, including medical costs, travel expenses and lost wages.
Your solicitor will use all the available evidence to build a strong claim against the highway authority. However, they will likely try to contest their liability for your accident using some common strategies that you can read below.
What defence could the Highway Authority have to a claim?
If you think the highway authority is responsible for an injury you suffered due to a poorly maintained road or footpath, you should seek legal advice. Your solicitor will investigate the circumstances of your accident, and if your case has merit, they will help you claim compensation.
To have a valid claim, you will have to show that the road where the accident occurred was not reasonably safe and the accident occurred due to dangerous road conditions. If you can establish this, you can begin a claim against the relevant road authority.
However, the highway authority may then raise the Section 58 defence and try to demonstrate that it took all reasonable steps to ensure the safety of the road. Even if they admit liability, the authorities may argue that you were partially to blame for the accident or contest the extent of your injuries.
The burden of proof is on the defendant, and the highway authority may avoid liability and disregard your claim if:
- They can show that no amount of reasonable care on their part could have prevented the accident or that the circumstances leading to your injury were not foreseeable.
- If the highway authority can show that they carried out inspections and repairs within reasonable time scales, your claim might not be viable. While a motorway or main road may require monthly examinations, a small residential street may only need yearly inspections.
- If the highway authority noticed a defect that caused your accident before they repaired it, the court would consider its size, the amount of traffic using that part of the road, and the dangers posed. If the hazard is not deemed severe enough, the road authority may not be held liable for your accident.
- If the highway authority can show that the road defect did not exceed their intervention level at the time of their most recent inspection, your claim might not stand.
- They can show that the defect has arisen at some point between their last inspection and the date of your accident, and nobody reported it as a hazard.
- If the highway authority has already initiated actions to deal with the hazard before your accident, the court may not hold them liable for your injuries.
To support its position, the highway authority will have to provide inspection records, maintenance and repair orders, records of accidents and complaints, and so on. Claiming against the highway authority can be very complicated and frustrating. Thus, it is always advisable to seek the help of a professional solicitor experienced in claiming through The Highways Act 1980.
How long do I have to make a claim?
Under the Limitation Act 1980, the time limit to begin a personal injury claim is usually three years after an accident. If you do not become immediately aware of an injury, as it often happens when you suffer a whiplash injury, the time limit begins on the date of knowledge. This is usually the date a doctor diagnoses the injury.
If you do not take legal action before the claim limitation date, your case becomes statute-barred, and the court will no longer accept your claim. In exceptional circumstances, the court may allow an extension of the time limit depending on the reasons and extent of your delay.
There are several exceptions to the three-year limitation period to claim, which includes the following:
- If the victim is a child, a parent or another adult acting as a litigation friend can claim on their behalf at any time before they turn 18, no matter when the accident happened. After turning 18, the victim has another three years, namely until their 21st birthday, to take legal action in their own name.
- There is no time limit to start a claim against the highway authority if the victim lacks mental capacity and cannot conduct legal proceedings alone. A litigation friend can start a claim at any time for an individual who suffers from:
- PTSD or another stress-related disorder
- An intellectual disability such as Down syndrome
- A neurodegenerative disease such as dementia
- A mental health condition like schizophrenia
- A stroke or traumatic brain injury
The three-year time limit to claim would only begin if the victim regains their intellectual ability.
- If a loved one suffered a fatal injury due to a poorly maintained road, you could claim compensation within three years from the date of their death.