The Highways Act 1980
The Highways Act 1980 provides for the improvement, maintenance and creation of roads in England and Wales. The Act is divided into 14 parts and split into 345 sections.
The main part of the Highways Act 1980, relevant to cyclists, is Part 4 (Sections 36 to 61), which covers the maintenance of highways.
Before looking at Part 4 in more detail, Section 329(1) is also relevant to cyclists. This section states that a cycle track is a way, constituted or comprised in a highway, over which there is a public right of way on pedal cycles, with or without a right of way on foot and over which there is no other right of way. Whether the cycle track is part of a highway does not matter, the highway authority for the associated highway will be responsible for maintaining it.
Highway authorities, often (but not always) local Councils, have a duty under the Highways Act to maintain and repair certain roads.
This duty is set out in Part 4 at Section 41(1) “the authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, …to maintain the highway.”
Nearly all normal roads in England and Wales will be classed as “highways maintainable at the public expense” and therefore, most cycling accidents caused by defects in the road surface occur on highways maintainable at the public expense.
Section 36(6) of the Highways Act is helpful in that it states every county council must keep a list of all highways that are maintainable. Therefore if the road where the defect is located is on the list, the correct defendant is probably the highway authority.
The duty to maintain and repair means that the highway authority has to keep a road in such good repair as it renders it reasonably passable for the ordinary traffic of the neighbourhood…without danger caused by its physical condition. The courts have qualified the duty to maintain and repair to be relevant to the “structure and fabric” of the highway. This is helpful to cyclists who have been injured due to encountering defects on the highway, such as potholes.
However, a cyclist would have to prove that the part of the highway where his accident occurred was not reasonably safe and that the accident was caused by the dangerous condition of the highway. Not every defect will amount to a danger and minor irregularities would not render the highway legally unsafe.
One of the legal principles used to decide whether a highway is reasonably safe is the test of reasonable foreseeability of danger. For example, would it be reasonably foreseeable that a cyclist, using the highway and coming into contact with the defect, could lose control of his bicycle or fall off and be injured.
The Highways Act therefore contain useful provisions for cyclists injured due to dangerous defects whilst cycling on the highway. The usual defendant to any claim for personal injury damages (compensation) will be the local council.
However, many statutes which impose duties also provide a defence. The Highways Act 1980 is no exception and the statutory defence (which is often used to avoid liability by many councils) is found in Section 58.
Section 58(1) of the Highways Act 1980 states:-
“In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence without prejudice to any other defence or the application of the law relating to contributory negligence to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.”
Section 58(2) goes on to list a number of matters that the Court must have regard to in deciding whether the highway authority can be successful in using the defence.
Section 58 (2)(a) the character of the highway, and the traffic which was reasonably expected to use it,
(2)(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(2)(c) the state of repair in which a reasonable person would have expected to find the highway;
(2)(d) whether the highway authority new, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(2)(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed.
It is up to the highway authority to prove the defence and a Court would of course look at all the circumstances of each individual case. However if a council can establish its statutory defence it may avoid having to pay compensation to injured cyclists who have sustained their injuries due to defects on the highway.
When acting for cyclists pursuing claims under the Highways Act 1980 against local authorities, Claimant’s solicitors often encounter defences under Section 58 and will seek to argue that the authority had not taken such care as in all the circumstances was reasonably required. A Claimant can argue that the authority does not have a sufficient highway maintenance programme or that it falls below accepted standards or indeed that the highway authority’s inspection system failed or that the highway authority knew of the dangerous defect in the highway and failed to repair it or repair it in a reasonable time.
The Highways Act 1980 can provide a means of redress for cyclists injured due to dangerous defects present on the roads in England and Wales. Knowledge of the relevant provisions of the Act is essential as is keeping up-to-date with how judges are interpreting the Act.