A highway authority has a statutory duty under section 41 of the Highways Act 1980 to maintain the highway.
In order to establish a breach of duty under section 41 of the Highways Act a Claimant must prove that the accident was caused by an “actionable defect”. A cyclist wishing to pursue a claim for injuries or property damage caused by a defect in the road surface, such as a pothole, would need to prove that firstly the defect was the cause of the accident and secondly that the defect was a hazard to road users. The courts will not impose a duty on highway authorities to maintain roads in such a condition that they are “bowling green flat”. A certain latitude is allowed in respect of relatively minor holes in the road surface. Whether or not a defect is classified as a hazard is a matter of interpretation by a trial judge.
A highway authority can often successfully defend any claims under the Highways Act if they can establish that they had in place a reasonable system of inspection and maintenance. This is called a “section 58 defence”. For example, if a typical road is inspected once every 3 months and a pothole appears after the last inspection, then the council may be able to escape liability if they can demonstrate that they were unaware of the hazard. There are often difficulties in proving that a highway authority was fixed with knowledge of a defect and this is why it is important that cyclists do report defects using Fill That Hole.
When pursuing a claim against a highway authority for personal injuries or property damage it is important that good photographic evidence is obtained of the defect before a claim is notified to the council. If evidence is not obtained before a claim is submitted then it will be difficult to prove the dimensions of the hole if it has already been repaired.
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