The Sunday Times’ motoring supplement yesterday contained a cheery article entitled “Brace yourself for a winter of holey hell”. It was of course referring to what appear to be fast becoming a national obsession among many – potholes!
The article referred to the findings of an “army of amateur pothole hunters” recruited by the AA. (Perhaps this is seen as a less sedentary alternative to train/bus spotters?). Well, in what the Sunday Times has called "the most comprehensive audit yet of the state of the roads", some 1,100 people recorded some 24,000 defects bigger than 6” in diameter and 2” deep on Britain’s roads, in addition to defective manhole and utility covers.
The AA has helpfully suggested the findings of the survey suggest some form of infectious disease has infested the UK's tarmac. The President of the AA is quoted as saying “It shows that the UK has a pothole plague”. Mr King also proffered an equally helpful legal prediction by suggesting “compensation claims will soar when cold weather strikes and roads start breaking up again”.
Well, will they?
To add to the general doom and gloom, the paper references the Asphalt Industry Alliance as suggesting there is already a backlog of pothole work worth some £10.5 Billion!
So how will highways authorities cope with the unholy trinity of another harsh winter; depleted budgets; and road users increasingly informed and willing to bring claims against them when they damage their vehicles or themselves after hitting road defects?
One highways authority suspended regular inspections during the winter of 2009-10 so that they could focus on what I have described to many a district judge as “an unprecedented deluge of complaints”. My private personal view is that this is wholly reasonable in times of extremely poor weather and one which allows the highways authority to retain its special defence under section 58 of the Highways Act 1980. This seems to be the most reasonable, pragmatic and effective means of inspection, maintaining and repairing roads in such circumstances. The most significant defects on the busiest roads can be prioritised over undertaking annual or bi-annual inspections of lightly used local access roads. This seems to me to be the most practical way of minimising accidents, injuries and even loss of life in this situation.
However, the Court of Appeal almost a year ago in Wilkinson v City of York Council  EWCA Civ 207, held that this approach was likely to land the highways authority as being unable to rely upon section 58. It was held that financial considerations are not a factor when looking at whether the authority had done what was "reasonably required". Under section 58 this required "an objective judgment based on risk." The section 58 defence was not designed for an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.
So perhaps a highways authority will be better able to resist claims brought concerning accidents which occurred in periods of very poor weather by sticking to their regular inspection regimes rather than attempting to limit the damage? This may mean they face more claims brought against them, as the AA predicts, however they are more likely to have good section 58 defences to them.