Rocky road

Solicitors pursuing Highways Act claims can take encouragement from a recent decision extending the duty of highway authorities to maintain road surfaces and providing additional protection for those on two wheels.

Meanwhile, exposures from the perspective of highway authorities have increased. Mr Justice Wilkie's decision in Thomas v Warwickshire County Council [2011] EWHC 772 (QB) should prompt careful perusal of the judgment which has broad implications both for systems of inspection and repair.

The claimant in Thomas suffered a severe head injury when falling from his bicycle after the wheel had struck a small spillage of concrete which had hardened and adhered to the surface of the road. Questions were raised as to whether the concrete was part of the fabric of the road and therefore within the ambit of section 41 of the Highways Act 1980, and whether it represented a reasonably foreseeable danger to traffic using the road.

Section 41 requires the maintenance - including repair - of defects in the fabric of the highway itself. But the removal of obstructions or surface-lying materials has been held not to be within its scope.

Paying particular attention to this, the defendant local authority argued that the concrete was simply a contaminant lying on the surface of the road, not dissimilar to a piece of chewing gum. However, the claimant maintained that once the concrete had hardened and bonded to the road it had become part of the fabric of the highway.

Long-lasting bond

In favouring the claimant's argument, the judge distinguished this from previous cases such as Valentine v TfL and Anor [2010] EWCA Civ 1358, which had held that highway authorities were not required to remove substances such as mud or grit which have been deposited onto a road surface rendering it dangerous to traffic.

Wilkie J considered that, in the absence of a specific intervention by a road-mending gang, the bonding of the concrete to the road would have been permanent, or at least long-lasting. He found that the spillage had become part of the fabric of the highway and that this, in his view, brought it within the ambit of the duty to maintain under section 41.

The issue concerning the foreseeability of danger stemmed from the location of the spillage. It was positioned in the middle of the carriageway, leading the defendant local authority to argue that this was not an area in which one would ordinarily expect a cyclist to ride. While that may have been a typical assumption, the claimant had in fact come into contact with the concrete because he was part of a cycling group which was riding in ranks of two. He was therefore positioned well away from the edge of the carriageway. The concrete was not sited within the wheel tracks of four-wheeled vehicles and, principally for that reason, the highways inspectors had considered that it was not dangerous.

The judge did not accept this and held that on an otherwise well-maintained road in a rural area, such as the highway in question, cyclists would not necessarily be expected to ride in single file close to the edge of the carriageway. Indeed, the position of the spillage was such that it was reasonably foreseeable that a cyclist would come into contact with it. The decision indicates that on certain types of road it is reasonable to expect cyclists to ride two or three abreast and to use the centre of the carriageway.

Extended duty

The court's ruling in Thomas further defines and extends what may constitute the surface of the highway and what defects may be actionable by injured parties. They may now include deposits on the highway as well as potholes and cracks; a fact which will be of interest to the authorities' public liability insurers.

This will also have an impact on what constitutes a reasonable system of inspection and repair by highway authorities and the availability to defendants of the statutory defence under section 58 of the Act.

Spillages of concrete or tarmac are not uncommon; we are all used to seeing them frequently in and around the works area of a road-mending gang. Highways inspections should take into account such spillages which have become adherent to the highway and, on certain roads, defects of any kind which might endanger cyclists using the centre of a carriageway even though they would not endanger users of four-wheeled vehicles. More is required of highway authorities in the discharge of their duty and this decision should have an impact on the intervention criteria employed by them.

However, this case should not be seen as granting cyclists carte blanche. Notwithstanding evidence that cycling groups often ride in a very tight formation, the judge held that the claimant was himself at fault by cycling too close to the bicycle in front, with the result that his damages were significantly reduced for contributory negligence.