BOLAM TEST APPLIED TO A HIGHWAY AUTHORITY

The repairs to the rut that caused the accident are visible on the road edge.

Reduced local government finances are likely to increase the prevalence of potholes and ruts that are already an all too common hazard on our roads.  

The ramifications of an accident that occurred in November 2006 on a country lane in the Blackdown Hills in Devon, just a few hundred yards from where I used to live, is likely to have long lasting implications for future claims based on a highway authority’s failure to maintain.

Whilst a highway authority’s statutory duty to maintain road under s41 Highways Act 1980 is often described as an absolute one, it is qualified by the statutory defence set out in s58. The effect of s41 is that if it is established that a defect was dangerous, that it arose out of a failure to maintain and that it caused the loss or injury complained of, then the burden of proof then passes to the highway authority: to establish a defence under s58 to prove that it had taken such care as in all the circumstances was reasonably required. If it fails in this, it will be held liable.

In AC & DC v TR & Devon County Council [2013] EWCA Civ 418 The Court of Appeal reversed a high court finding that because Somerset County Council’s maintenance policy for the stretch of road resulted in less frequent inspections than (i) was applied by its neighbouring authority in Somerset for the same road as well as (ii) than recommended for this category of road under a nationally recognised non-mandatory code of practice, Well Maintained Highways, its s58 defence failed.

Most of us are familiar with the test formulated by the House of Lords in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 in a clinical negligence claim a professional person is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of persons who practice the same art, merely because there is a body of opinion who would take a contrary view. One of the glories of our common law is that a ratio is capable of being applied in a different context where the underlying principle is appropriate.

The national code of practice was not mandatory; it did not set an absolute standard, it was merely relevant evidence of a suitable standard.  A departure from the code was not of itself unreasonable.  The Code post dated DCC’s own policy.  Evidence was adduced from other local authorities to show that DCC’s inspection rates for this category of road was in keeping with other such bodies.

Lord Justice Hughes’s leading judgment is obligatory reading for anyone practicing in this area. He reminds us that the non statutory national code of practice is not mandatory; it does not set an absolute standard, it was merely relevant evidence of what might be a suitable standard.  Accordingly, a departure from such a code is not of itself unreasonable. Devon CC adduced from other local highway authorities with similar inspection rates for the same category of road and Hughes LJ then applied the Bolam ratio to reverse the first instance finding in this respect.  Even so, that is not the end of the story. Other factors, including Devon CC’s own inspection and maintenance records revealed that this stretch of road regularly falls into disrepair in the Autumn and the Court ruled that these special factors required more frequent inspections; so the local authority still failed to establish its s58 defence!

We are likely to see an increase in s41 claims as road maintenance standards inevitably decline.  Although we know from Wilkinson v City of York Council [2011] EWCA Civ 209 budgetary constraints are not in themselves sufficient to establish a s58 defence, they are nevertheless pertinent to factors that must be taken into account under s58(2).

This case provides a salient reminder of how fact specific these cases are; of the dangers of applying an overly formulaic or mechanistic approach to judging what is a reasonable standard of maintenance; of the crucial importance of meticulous case preparation, and the need to preserve evidence both as to the accident scene and independent witness testimony – without which this claim would have failed.