Sect 58, and how this applies as a defence.

20th June 2010

If i have found the correct text here, here is section 58.

I am looking to appeal against my decision on the fact that the road was not repaired correctly, even though that daily inspections (M25 fast lane) are done. Surely if my wheels have become damage surly shows that the highway is not to required standard. The defence to use 58 doesnt appear to hold up. Section c shows "the state of repair in which a reasonable person would have expected to find the highway;".

So surely i can dispute that the repair was not holding up as claimed by the responsible party, as the repair did not prevent for my wheels (one of which deflated on impact)
I would think reasonable would mean that any damage to a wheel is unacceptable. Is this the best way to appeal against the decison?

Section 50 of 1980 highways act
58. Special defence in action against a highway authority for damages for non-repair of highway.
— (1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:—
(a)
the character of the highway, and the traffic which was reasonably to be expected to use it;
(b)
the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c)
the state of repair in which a reasonable person would have expected to find the highway;
(d)
whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e)
where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.
(3) This section binds the Crown.

Replies (1)

Potholes.co.uk Expert     posted : 21/06/10 at 10:01 am

If you intend to argue a point of law, you will need more help than an internet forum. Interpretation of UK statute is a matter for the Court, as is the test of what is reasonable. If you start arguing these points on your own, you could make a fool of yourself.

I have been in court when a member of the public tries to argue a legal point on a highway claim, and they were tied in knots by the defendent and the judge. It wasn't nice!