A risk-based approach to managing highways

  • Highways are essential for economic growth and the lives of communities, and local authorities have a duty to keep them well-maintained
  • The Well-managed Highways Infrastructure Code of Practice 2016 advocates a risk-based approach to all aspects of highway maintenance
  • We take a look at landmark court decisions relating to highways claims, and the lessons for local authorities on risk and claims defensibility

Well-managed highways play a central role in the lives of the communities they serve, and are essential for economic growth.

The Well-managed Highways Infrastructure Code of Practice 2016, commissioned by the Department for Transport, provides a starting point for local authorities to develop, review and formally approve highway infrastructure maintenance policy.

The 2016 code of practice has been designed to promote an integrated approach to highways asset management, based on local needs, priorities and affordability.

While it doesn’t contain prescriptive guidance on inspections – leaving the onus on individual authorities to devise their own policies and procedures – it advocates a risk-based approach to all aspects of highways maintenance, covering inspection frequencies, responsive repair times, resilience and priorities.

More than 30,000 claims are made against highways authorities each year, forming the largest proportion of Public Liability claims at Zurich Municipal.

Despite the lack of rigid guidance, we are now more than halfway through the two year transition period, and each highway authority must adopt the code’s recommendations by November 2018, basing these on their own risks, needs and priorities.

We take a look at some of the landmark court decisions relating to highways claims, as featured in Zurich Municipal’s Highways Fluidbook, and some of the key lessons for local authorities.

While there were varying backgrounds and outcomes in the cases listed, each represents a landmark decision that has come to define the courts’ expectations in managing highways risk, setting a precedent for future decisions.

Case 1: Mills v Barnsley Metropolitan Borough Council (1992)

Key lesson for local authorities:

This case explored what constituted a dangerous defect, ruling that the claimant must demonstrate three things:

  • The highway was in a dangerous condition
  • The dangerous condition was caused by a failure to maintain or repair the highway
  • The injury or damage resulted from such a failure

Case 2: James v Preselli Pembrokeshire District Council (1993)

Key lessons for local authorities:

The onus is now on the claimant to prove that a particular spot where the accident occurred is dangerous. This ruling makes it irrelevant whether there were other dangerous spots nearby, or if the area as a whole needs resurfacing.

Case 3: Littler v Liverpool Corporation (1968)

Key lessons for local authorities:

The court ruled that the onus on a Highway Authority must not be oppressive, and that while difference between the level of flagstones of about an inch may cause trips, “a highway is not to be judged by the standards of a bowling green.”

This has given rise to the traditional view that defects of less than an inch should not usually be actionable. There are however exceptions to this tradition, notably Pitman v Southern Electricity Board (1978), which ruled that a defect of approximately 3mm was actionable.

Case 4: Dalton v Nottingham County Council (2011)

Key lessons for local authorities:

While the court will take into account a highway authority’s inspection and maintenance regime, it is for the court to make its own decision on the level of danger. Failure by a local authority to comply by its own policy does not necessarily mean breach of duty, as the council’s policy may fall below or exceed that which is reasonable.

Case 5: Wilkinson v City of York Council (2011)

Key lessons for local authorities:

The council had in place a policy for annual inspection. However, the 2005 Well Maintained Highways Code of Practice suggests the type of highway in question should be inspected every three months. The council presented evidence suggesting it was constrained by lack of financial and operational resources. However, the Court of Appeal held that these considerations were irrelevant when considering the case in question.

Case 6: Goodes v East Sussex County Council (2002)

Key lessons for local authorities:

It was held that a highway authority does not have an absolute duty to remove all ice, ruling that it is instead “under a duty to ensure, so far as is reasonably practicable, safe passage along the highway is not endangered by snow or ice.”

As a result, courts consistently find that highways authorities can’t be expected to salt and/or grit their entire highway network. Instead, they must adopt a risk-based approach that takes into account an element of available finance and prioritising certain parts of the network.

For local authorities looking to develop an integrated approach to highways asset management, Zurich Municipal’s Highways Fluidbook introduces the 2016 code of practice and provides further information about highways law, highways funding and the introduction of a risk-based approach to highways management.