My morning commute was brightened up this morning by an article in the Metro, (the staple free newspaper for London commuters,) entitled “Motorists sign up to a pothole warning drive”. I think the last word of the title should have read “Sign”. The article focused on a triangular warning sign depicting a lopsided rear view of a car with one wheel down a pothole. It is suggested the Department of Transport is being lobbied by Confused.com to introduce the dedicated sign for use on potholed roads.
The first thing I (and I would assume, many of my fellow commuters) thought, was “Aha! What about section 58(2)(e) of the Highways Act 1980?” Certainly I thought that the use of such a sign could potentially raise some issues as to a highway authority’s special statutory defence pursuant to section 58 to a claim brought against it pursuant to section 41 of the same Act.
Would such a permanent sign be a factor the court should take into account pursuant to section 58(2)(e) (which concerns warning notices) in relation to the court’s assessment of whether the highways authority had in place a “reasonable” system of highways inspection, maintenance and repair?
My inclination is that the answer to that question is “absolutely not”, given that it would then be possible for a highways authority to place ‘Pothole Warning Signs’ at 25 yard intervals along all their roads; sit back and spend their highways budget on something else; and pray in aid their sign’s presence as a section 58 defence in any ensuing court actions against them for non-repair. In any event, surely the presence of such a sign could be described as akin to an admission by the highways authority of a failure to repair and thus a breach of section 41 of the 1980 Act.
However in borderline section 58 defences, the presence of such a sign may provide a tipping point for the court. Likewise it may have a bearing on a finding of contributory negligence?