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Highway Actions – attacking the s58 defence

Peverill v LB Hillingdon – (HHJ Knight QC)  

Highway tripping cases fall into a fairly regular pattern. 

First there is the tussle over the size of the defect concerned.  This tends to involve a variety of measuring devices set against the (alleged) defect and photographed through what looks like a heavy gauze by someone with an apparent hand-tremor.

Next the s.58 defence is deployed, the Highway Authority will claim that the defect was definitely not there when the area was last inspected; even if that inspection took place a matter of hours beforehand.

In support of the s.58 defence, the Highway Authority will (normally) rely upon the classification of the area of highway concerned and the frequency of the inspection in accordance with the “New Code of Practice for Highways Maintenance”.

In the matter of Peverill v LB Hillingdon, the claimant attacked not only the quality of the  inspections; but the classification of the section of pavement on which she tripped; the classification of the roadway as a whole and the number of inspections per year.

Mrs Peverill fell and was injured at a defect which was situated on a crossover or service road which bisected the pavement.  The local authority classified the service road as a carriageway (not a pavement) and the intervention level applied was 40mm.

The judge concluded that the service road formed part of a busy pedestrian walked route. To regard it as a carriageway as opposed to a footpath when there was no alternative footpath available was irrational and the judge rejected this classification. The appropriate intervention level was 20mm and therefore the defect was dangerous.

The Highway Authority’s classification of the road as a whole (a local access road) was one which in accordance with the New Code of Practice, warranted a once-yearly inspection.  The claimant’s case was that the roadway as a whole was wrongly classified and warranted inspection four times per annum as a secondary walking route.

The judge rejected the Highway Authority classification and said that given that it was a medium usage route through local areas, feeding primary routes and large schools, which would warrant a recommended inspection frequency of four per year.

The decision indicates that proper adherence to a system of inspection and to the New Code of Practice is not, of itself, necessarily sufficient to meet the s,58 criteria, and that Highway Authorities can be vulnerable to a properly advanced challenge to fundamentals of their inspection regime.