Highway claims turn on four questions, and most of them are lost on the third. Was the highway in a condition dangerous to users? Was that danger caused by a failure to maintain? Can the authority make out the section 58 defence? And did the danger actually cause the injury? Nicky Carter works through each one, with the emphasis on the evidence that decides them.
The session opens with the question that defeats claims before they start: is this a highway maintainable at the public expense? Gulliksen and the cases that follow it turn into a history lesson through the 1949, 1959 and 1980 Acts, dedication at common law, and the twenty year presumption under section 31. Get that wrong and the claim fails whatever the state of the surface. Private paths fall to the Occupiers Liability Act 1957 instead.
From there it covers what maintain actually means, including why there is no duty to clear moss or leaves from the surface, how danger is assessed now that the old one inch rule has gone, and the photographic and disclosure evidence that wins these cases. It closes on the 2025 Court of Appeal decision in which GPS tracking of an inspector's vehicle destroyed a section 58 defence, the section 41A duty on ice and snow, and a boardwalk case in which a claimant lost under section 41 but won at common law.
Key Takeaways
- How to establish that the accident location is a highway maintainable at the public expense, and why this is the question that quietly defeats claims
- What the duty to maintain covers, why the removal of moss, leaves and other extraneous substances falls outside it, and where the line sits when a substance becomes bonded to the surface
- How danger is assessed now the old one inch measure has gone, including combined hazards and why a busy road with no previous accidents cuts both ways
- The photographic evidence a claimant needs, from the claimant's eye view to vertical and horizontal rulers showing the depth of the defect
- How the 2018 Well Managed Highway Infrastructure code changed inspection to a risk based approach, and what to ask for on disclosure about intervention levels and categorisation
- How the section 58 defence was broken on appeal by GPS tracking data and copy and paste inspection reports, and why contemporaneous documents beat a witness statement
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