Part IV

Maintenance of Highways

Enforcement of liability for maintenance

Special defence in action against a highway authority for damages for non-repair of highway.
58
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.
4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
S. 58 applied (1.2.2011) by The River Mersey (Mersey Gateway Bridge) Order 2011 (S.I. 2011/41), arts. 1, 11(3) (with arts. 3(5), 51, Sch. 10 paras. 68, 85)
S. 58(4) repealed (1.1.1993) by New Roads and Street Works Act 1991 (c. 22), s. 168(2), Sch.9; S.I. 1992/2984, art. 2(2), Sch.2
S. 58 applied (with modifications) (20.11.2013) by The M1 Junction 10a (Grade Separation) Order 2013 (S.I. 2013/2808), arts. 1, 9(3) (with art. 8(7))
S. 58 applied (with modifications) (21.10.2014) by The Central Bedfordshire Council (Woodside Link Houghton Regis) Development Consent Order 2014 (S.I. 2014/2637), arts. 1, 9(3)
S. 58 applied (with modifications) (26.2.2015) by The Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015 (S.I. 2015/147), arts. 1, 10(3)
S. 58(1)(2) applied (23.2.2017) by High Speed Rail (London - West Midlands) Act 2017 (c. 7), s. 70(1), Sch. 4 para. 16
S. 58(1)(2) applied (with modifications) (11.2.2021) by High Speed Rail (West Midlands - Crewe) Act 2021 (c. 2), s. 64(1), Sch. 4 para. 19