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TR v Devon County Council, Court of Appeal, 30 April 2013

30 April 2013

The Court of Appeal have given judgment in TR v Devon County Council [2013] EWCA Civ 418, giving guidance on the status of the Code of Practice, Well Maintained Highways.

The trial judge found Devon had no section 58 defence because their frequency of inspections departed from that recommended in the Code. The Court of Appeal found the judge in error on this point.

The judge found Devon had failed to make out the statutory defence because there was no justification for its departure from the recommended one monthly inspection frequency suggested in the Code. Devon did not carry out a risk assessment when deciding on the frequency of maintenance assessments, as such the evidence advanced fell short of showing Devon had considered all relevant matters in deciding to inspect on a six monthly regime rather than the one month regime.

The Court of Appeal held that the judge fell into error. The approach taken amounted to treating the code as a mandatory standard which had to be adhered to unless there was a positive reason to depart from it. It was held that whilst the Code is evidence of general good practice, its status must not be overstated. It has no statutory basis, and Local Authorities must exercise their own judgment.

Advice is given in the Code suggesting that explicit reasons for adopting different policies is wise, given the exposure of local authorities to the possibilities of litigation, this is advised, and not a rule.

Devon produced evidence at the trial from other highway authorities who also inspected local distributor roads at six monthly intervals. The judge held that it was of little or no assistance in this case, because she did not have evidence of the reasons why the other authorities had departed from the Code. It was held that this would be a legitimate conclusion if it were correct to take the approach that the Code was mandatory and reasons had to be given for the departure from it, but this was not the case. The evidence of the practice of other authorities illustrated six monthly inspections of similar roads was reasonable. The Court of Appeal referred to the Bolam principle, and on that basis Devon had exercised reasonable care in its general policy for such roads.

Devon disclosed an exercise undertaken in 2004 where they had compared its road maintenance manual with the then 2001 Code. With regard to the inspection intervals it recorded the bare statement that the local practice complied with the introductory paragraphs of the Code. This exercise demonstrated Devon had asked if their manual differed from the Code. Devon concluded that their inspection frequency was lower than that of the Code for certain roads, due to the traffic flow being less in Devon. The judge held this fell short of the risk assessment required.

The Court of Appeal found the judges finding that Devons adoption of an inspection frequency of six months for local distributor roads was a want of reasonable care could not stand. Whilst Devon won in law on this point, the Court of Appeal found there was enough evidence in fact to find that the inspection frequency should have been more often than six monthly. The claimant was however found to be 50 responsible for the accident.

Highway authorities were understandably concerned by the Judges approach in TR. They will be relieved by this; this is the first judgment from an appeal court giving guidance on the Codes role in litigation and the practical approach taken by the Court of Appeal.

The Court of Appeal have clarified that the Code is guidance and not mandatory. It does not place a duty upon the highway authority to carry out a risk assessment if they depart from the Code.

With thanks to Lord Faulks QC and Angus Piper of 1 Chancery Lane.

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