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

27 August 2013
The issues

Highways – statutory defence – contributory negligence – Well-maintained Highways Code of Practice

The facts

TR, the driver of a Land Rover, was overtaking a slower moving vehicle when the car left the road to the nearside. His passengers was seriously injured. The passengers sued TR. That claim was settled by an admission of negligence by TR’s insurers. Subsequently insurers made a claim against the highways authority alleging that the defective state of the offside of the road was what had caused TR to loose control of his vehicle. The High Court judge dismissed the defendant’s statutory defence and found no contributory negligence on the part of TR. The defendant appealed to the Court of Appeal.

The decision

Four issues arose for consideration:
1. Was there a breach of Section 41?
2. Was the accident caused by that breach?
3. Had Devon made out the statutory defence under Section 58 of the Act?
4. Was there any contributory negligence on the part of TR?

1 & 2. There was sufficient evidence to support the judge’s finding which was implicit in several paragraphs of her judgment that the road was, in places, dangerous. It was theoretically possible to postulate a case in which a defect met the manual’s definition of category one defect but there was no prospect of anyone being put in immediate danger from it in the ordinary course of road user. However it was not easy to imagine such a factual scenario and, on the facts of this case the reason why the defect was a category one was quite plainly because drivers might be put in danger by being thrown off course where the edge of the road had been overridden.

On the facts found by the judge TR had crossed into the rutted area somewhere before the point of maximum intrusion of the rut into the carriageway. Because he was travelling forwards at about 45 miles per hour he then passed into the widest area of the rut which was, on any view, a dangerous part of the road. The judge’s clear finding which was inevitable on the evidence was that it was the rut which caused him to loose control and caused the accident. That was enough to demonstrate a breach of Section 41. In any event the judge clearly found that the place described at the point of entry into the rut was itself dangerous.

Although one would expect drivers generally to stay within the carriageway and not to cross the white line at the edge of the road, and those acting with proper care would ordinarily do so, the whole of the tarmac was self-evidently space which might be crossed by a vehicle travelling in either direction.

3. The statutory defence: The principle issue was whether Devon had inspected the road sufficiently often. Devon’s practice was to inspect at six monthly intervals in respect of this type of road. The judge found this was not enough to discharge the burden laid on Devon by Section 58 to show that it had taken such care as was in normal circumstances enough to avoid the highway being in a dangerous condition. There was and is a non-statutory code of practice ‘Well Maintained Highways’. Amongst many other areas of practice the code dealt with frequency of inspections. It suggested that the regime for frequency should be based upon listed factors including category of road, traffic use, incident and inspection history. Frequency of inspection is suggested by the code in respect of certain categories of road. The third category in the code is described as ‘secondary distributor’ roads. Devon treated the road in this case as a secondary distributor. Inspection frequency of such roads according to the code was one month.

Devon divided highways into 10 categories rather than the 5 used by the code. Devon’s inspection frequency for this road was 6 months.

The judge found that Devon had failed to make out the statutory defence because it had not justified its departure from the inspection intervals recommended in the code. She concluded that where authorities decided to depart from the code of practice that it was essential for these departures to be identified together with the reasoning for such differences. She found, on the evidence that there was no record of any consideration or review of the reason for departure and no risk assessment.

The judge’s approach was erroneous. It amounted to treating the code as a mandatory standard that had to be adhered to unless there was a positive reason to depart from it. The status of the code should not be overrated. It had no statutory basis. It was no more than evidence of good practice. Authorities had to exercise their own judgement. The advice to give explicit reasons for adopting different policies was wise given the exposure of highway authorities to litigation, but it was advice not a rule. It could not amount to a rule that it would itself be want of reasonable care to adopt a different inspection interval unless some particular process of reasoning was passed through and set out somewhere in writing.

Devon had produced evidence from other authorities of comparable departures from the code in respect of local distributor roads. The judge had dismissed this evidence as being of little or no assistance. She did so because save for one authority she had no evidence of the reason why the authorities had departed from the code. That was a legitimate conclusion if it was correct that the code provided a mandatory norm, but it did not. At the least, the evidence of the practice of other authorities pointed towards a respectably held view amongst professionals charged with highway maintenance that six- monthly inspections of distributor road was a reasonable response to the duty to maintain. On the Bolam principle that evidence went towards showing that Devon had exercised reasonable care in its general policy for such roads.

Although the evidence did not disclose what discussions or, as the judge put it, ‘study’, preceded the adoption by Devon of its intervals it did disclose an exercise which Devon had undertaken in 2004 comparing its road maintenance manual with the 2001 code of practice. That demonstrated at least that Devon had conducted the exercise of asking itself whether its manual differed from the code and if it ought to have altered its practice. The judge felt this was far short of the risk assessment that was required but this was too exacting a requirement which followed from her approach to the code generally, since that led her to hold that a departure from the code would constitute a lack of reasonable care unless it was predicated on a reasoned and specific assessment.

For this reason the judge’s finding that Devon’s adoption of an inspection regime of six months on distributor roads generally was a want of reasonable care could not stand since it was based on an erroneous approach to the code.

However, on the facts, the judge had been entitled to hold that this particular road called for greater frequency of inspection given its history of defects prior to the accident. Accordingly, despite the flawed approach to Devon’s policy it was clear that there was sufficient evidence to justify the judge’s conclusion that the road needed inspection at shorter intervals than 6 months and there was no reason to interfere with it. Accordingly the judge’s finding that the statutory defence had not been made out would be upheld whilst rejecting her wider basis that Devon’s policy in relation to local distributor roads generally betrayed a lack of reasonable care because it amounted to a departure without official reason explained from the non-statutory recommendations contained in ‘well-maintained highways’.

4. Contributory negligence: There was substance in Devon’s complaint that TR overcorrected in getting his offside tyre out of the rut. Both accident investigation experts came to this conclusion. However, he only had 0.7 of a second in which to react and the judge was entitled to come to the conclusion that even if he might have avoided the oversteer this did not amount to want of reasonable care on his part. The same did not apply to the conclusion that there was no contributory negligence in entering the rut in the first place. Even if it had water in it, it was there to be seen. Even if TR had not known the road, which he did, the contours were obvious. It can only have been inadvertence on the part of TR that he did not see the defect and avoid it. There was plenty of room to overtake. There was no question of the car being overtaken doing anything restricting the availability of the whole of the space to the Land Rover. The only proper finding was that there was contributory negligence to the extent of 50%. Appeal allowed to the extent of substituting a finding for TR subject to 50% contributory negligence.

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