Injured by a pothole or pavement defect? Learn how Section 58 can affect your claim and how to challenge a council’s defence.
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Section 58 Defence: What It Means For Your Claim
If you’ve been injured in an accident caused by a defective road or pavement, you may be able to make a claim against the local council or authority responsible for its maintenance.
Claims typically arise from pothole accidents and trips on defective pavements. To succeed, you must prove that the authority failed in its legal duty to keep the road or pavement safe for public use.
However, councils and highway authorities frequently rely on Section 58 of the Highways Act 1980 to dispute such claims. This article explains what Section 58 means for your claim, how you can challenge it, and what practical steps you can take to strengthen your claim for compensation.
Table of Contents
What are the duties of highway authorities?
Under Section 41 of the Highways Act 1980, highway authorities have a legal duty to maintain public roads, pavements and footpaths so they are reasonably safe for traffic and pedestrians.
Highway authority duties and responsibilities include:
- Having a reasonable inspection system in place.
- Taking appropriate action within a reasonable time once a defect is identified.
- Placing warning signs if the hazard cannot be removed straight away.
- Keeping records of inspections, maintenance and repairs.
If a road defect, such as a pothole, loose slab, debris or broken kerb, causes an injury, you may be able to bring a personal injury claim under the Highways Act 1980 if you can show that:
- The road was in an unsafe condition.
- The highway authority failed in its duty to maintain it.
- The defect led to an accident and your injuries.
What is the Section 58 reasonable inspection defence?
Section 58 of the Highways Act is a statutory defence that allows councils to avoid liability for damage caused by defective roads or pavements if they can prove they took reasonable care to ensure these were reasonably safe.
In practice, it is a way for the highway authority to argue that:
- The road or pavement was inspected regularly.
- They took reasonable steps to identify and repair any hazards.
- The defect arose after the last inspection or was not deemed dangerous at the time.
- There were no prior reports, or any reports were dealt with appropriately.
- They acted promptly once the hazard was reported.
In other words, the accident was not due to negligence, and the claimant is not entitled to compensation. It is up to the defendant to prove their system of inspection was reasonable and properly carried out to successfully deny liability.
What does reasonable inspection mean in practice?
A reasonable system of inspection and repair does not mean that the authorities are expected to inspect every inch on every road daily. Instead, how often inspections should be carried out will depend on the road hierarchy, according to the Well-Maintained Highways code of practice.
For example:
- Primary walking routes, school areas, strategic routes and heavily trafficked A roads may be inspected more frequently, such as monthly.
- Certain urban routes, secondary walking paths, C-classified roads and bus routes connecting smaller villages may be inspected less frequently, such as quarterly.
- Local access roads, quiet residential streets, cycle trails, linked footways and rural footways may only need to be inspected annually.
Areas with higher accident risk and unusually high defect levels should also be inspected more frequently.
Inspections are usually carried out by trained officers, either by vehicle or on foot, depending on the type of highway. Footways are typically inspected on foot to allow closer scrutiny.
When can a highway authority still be liable despite inspections?
Even if the authority conducted reasonable inspections, they can still be held responsible, despite relying on Section 58 of the act, if no proper action was taken. For example:
- The inspection was not conducted in accordance with the authority’s own inspection policy or relevant guidance.
- No action was taken to repair a clearly dangerous defect.
- The inspection interval was too long for the type of road or pavement.
- The assessment appears to have been rushed or poorly documented.
Another important factor is whether the highway authority knew, or ought reasonably to have known, of the hazard. Even if this was not recorded during a formal inspection, the authority may be deemed to have constructive knowledge and a duty to act if it had been reported by members of the public.
If you are aware of or have been injured by a road or pavement defect, read our guide on how to report a pothole to the council.
How can I challenge a Section 58 defence?
If the authorities use the Section 58 defence, there are several ways in which you can challenge it and show that their inspection system was inadequate:
- Obtain inspection records via a Freedom of Information Act (FOI) – these can show how frequently the area was inspected, when the last inspection took place, and whether any hazards were recorded.
- Challenge the inspection regime – you can argue that the frequency of inspection was unreasonable for the road’s classification, traffic volume or location.
- Identify gaps in inspection history – missed inspections, long delays between reports and repairs, or poorly documented maintenance, can weaken the council’s defence.
- Use prior complaints as evidence – reports from others can prove that the authorities had constructive knowledge of the hazard and failed to act.
- Establish how long the hazard existed – prove that the defect was large enough that it must have been present for a significant time and should have been identified during routine inspections.
- Gather photographic evidence – photographs of the hazard, the surrounding area and your injuries can help establish negligence.
- Rely on relevant case law – a solicitor can refer to cases such as Crawley v Barnsley Metropolitan Borough Council to argue that the failure to inspect or act on reported hazards can be unreasonable, even over short periods such as the weekend.
How to obtain inspection records via FOI
Highway authorities must keep records of inspections, but these are not always publicly available. These can often be obtained via a Freedom of Information (FOI) request or through the legal claims process. To obtain them, you can submit a request to the relevant local council or National Highways by letter, email, through the WhatDoTheyKnow platform or using this online form on the GOV.UK website.
The steps to take are:
- Identify the authority responsible for the road maintenance.
- Check if they have already published the information or responded to an FOI request.
- Clearly formulate the request, including your name and email address.
- You should receive a response within 20 working days.
An FOI request can provide:
- Inspection schedules and logs.
- Maintenance and repair records.
- Records of complaints and reported hazards.
- The authority’s inspection policy.
- Risk assessments related to the area.
Tips for strengthening a pavement or road accident claim
To improve the chances of a successful claim against a highway authority using the Section 58 special defence, you should gather as much evidence in as much detail as possible. You should:
- Seek medical attention immediately – to have your injuries assessed and linked to the incident.
- Take clear photos of the hazard – many councils use guideline intervention levels (often around 20–30 mm on pavements and around 40 mm on carriageways), but smaller defects can still be dangerous depending on the circumstances. Use objects for scale and include the surroundings.
- Gather witness statements – ask for the names and contact information of bystanders who saw the incident.
- Keep records of complaints – if you or others before you have reported the hazard.
- Obtain inspection and maintenance records – these will help challenge a Section 58 defence.
- Get legal advice early – this will help your solicitor investigate and challenge any defence raised by the highway authority.
If you have been injured due to a defective road or pavement, speak to us today to find out if you have a valid claim and how to challenge a Section 58 defence. Call 0800 470 0472 now or use our contact form to request a call back.
