The Court of Appeal’s decision in Crawley v. Barnsley MBC  appears to have advanced the law relating to potholes, and the duties of local authorities when a pothole has been reported by a member of the public.
On Friday 27th January 2012, a member of the public called Barnsley’s highways team to report a pothole on a residential street in Athersley.
The Council’s highways team had in place a system whereby defects reported by members of the public were assessed on the next working day. Given that it was a weekend, the next working day was to be Monday 30th January so no inspection and assessment took place on the Saturday.
Mr Crawley went out jogging on Saturday the 28th. He fell over as a result of the pothole and hurt his ankle. He brought a compensation claim against the Council.
The Barnsley County Court, which first heard the case found that the pothole was dangerous and ‘actionable’ but went on to rule that the system operated by Barnsley Council’s highway team was sufficient, and good enough to defeat Mr Crawley’s claim.
The law recognises that local authorities cannot reasonably repair every pothole as soon as it occurs, and instead imposes a duty on them to have a rigorous and reasonable inspection process.
Local authorities have a defence (known as a Section 58 defence) against highway defect claims if they can show that they had a suitable system of inspection of roads and pavements in place and that they followed their system. If the local authority can prove this, then they are said to have taken reasonable care and a claim will fail.
Most local authorities adopt a system of inspection recommended by the Department of Transport. The system sets out how often they should perform inspections,how quickly they should check reported defects and, once checked, how quickly they should repair the defects.
Mr Crawley was unsatisfied by the decision, and his lawyers appealed to the Court of Appeal. His reasoning was that complaints received on Monday to Thursday were considered by a highway inspector the next day but it was unreasonable if a complaint was made on a Friday then there was a delay of at least 2 days (more if a bank holiday). Following the decision in Wilkinson v. City of York Council  EWCA Civ 207 the Court of Appeal had earlier ruled that a ‘lack of resources’ within local authorities is irrelevant.
The decision of the Court of Appeal was not unanimous. Briggs LJ and Irwin LJ agreed that the system operated by the Council which made no evaluation of potentially serious defects reported on Fridays and Saturdays and out of hours was not a reasonable one.
Jackson LJ disagreed. In his judgement the system of inspection on the next working day (or immediately in a case of exceptional urgency) was reasonable.
So, by a majority of 2 to 1, the Court of Appeal ruled that it was not reasonable to leave defects reported on a Friday or Saturday until a Monday with no evaluation of how serious they were. Mr Crawley won and received compensation.
So what happens now?
It will be interesting to see how local authorities respond to this case. They may form a view that the risk of someone being injured between the reporting of a defect and its inspection are so rare that they need not do anything.
However, some may conclude further training will be required for staff who take the calls from the public. Their staff may now need to acquire the ability to assess how dangerous a defect is by asking the right questions over the phone. They may then decide, having asked a few probing questions, whether to send an ‘out-of-hours’ team along to check a defect ‘in the flesh’.