Inspection vehicle speed to fast to spot pot hole

Day v Suffolk County Council

(Court of Appeal - 23 November 2007)

The claimant sustained personal injury in December 2001 after driving into a pothole in a road that the council was the relevant highway authority for. The council's highways inspector had inspected the road in October 2001 and had not identified the pothole. The council pleaded a s58 defence, which in this case purported reasonable care had been taken to ensure the highway was not dangerous.

In finding that there had not been an adequate inspection in October 2001, Judge O'Brien relied on the evidence that the inspection was conducted at a speed of 25mph but was not satisfied this was a slow enough for a reasonably efficient inspection to be carried out.

In drawing an inference that the pothole had probably existed at the time of the inspection, the judge maintained that there was undoubtedly a pothole present at the time of the accident; that the road required repairs prior to and following the accident; and evidence from the claimant and others claiming the road's poor state. The defendant appealed this decision.

The Court of Appeal, dismissing the council's appeal, held that the judge was entitled to find that driving at 25mph was too fast to make a proper inspection and had been entitled to draw the inference that the defect was present in October 2001.

COMMENT

Highway authorities' inspectors will need to watch their speed when carrying out inspections from motor vehicles. Additionally, where there is a defect at the time of an accident and evidence that a road has a history of being in a poor state of repair, a court may infer that the defect was present at a pre-accident inspection even if not identified. - Fiona Constantine, BLM - Liverpool.

The following law report contributed by specialist insurance practice Berrymans Lace Mawer first appeared in Post Magazine on 21 February 2008.

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.