In Crawley v Barnsley MBC  EWCA, the majority of the Court of Appeal upheld the decision that Barnsley Metropolitan Council’s system for inspecting potentially serious defects in minor roads was inadequate. The Council had been notified of a pothole on a Friday afternoon by a member of the public; however, no immediate action was taken. The next evening, the claimant was out running when he tripped over the pothole and suffered injury to his ankle.
It was the Council’s policy to inspect any reported defects the next working day unless they were reported by the emergency services team with regards to a sensitive location, in which case a standby team would take any necessary action. In this case, the pothole was inspected on Monday morning and emergency action taken to repair the defect within 24 hours.
It was argued that the delay in inspection was unacceptable and that the Council had been negligent and in breach of its statutory duty under the Highways Act 1980 s.41 in failing to repair the pothole with immediate effect. The authority denied liability and argued that due care had been taken as was reasonably required in the circumstances to ensure the highway was not dangerous as per Section 58 of the Highways Act 1980.
The point of whether it was reasonable to accept that there would be a shortage of staff over the weekend was discussed. However, the court ruled that lack of resources as a defence was not acceptable as per Wilkinson v City of York Council (2011) EWCA and the Council should have had trained staff evaluating the level of danger or an on-call inspector available in these circumstances.
It was particularly important that the Council operated under a system to inspect reported defects the next working day. The court found it unreasonable that the defects were left unattended over the weekend with no assessment of danger. The Council failed the Section 58 test as they operated a system which made no evaluation of defects reported out of hours and therefore they had failed to take reasonable care in the circumstances.
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