How do you get off Scott-free when you have made an admission of liability and paid millions in damages? The answer in AC and Others v Devon County Council  EWHA 796 was not by withdrawing that admission but bringing a Part 20 Claim. Even then the result is rather curious but the case raises some interesting points of highways law and permission to appeal was granted this week.
TR was the driver of a Landrover on a rural road in Devon which was edged with white lines. The width of the road between the white lines was about 4.6 metres. TR sought to overtake a Vauxhall Vectra at 45mph and his offside wheels went over the white lines at the side of the road. His case was that he got into a rut, steered to get out of it, swerved across the front of the Vectra, left the road and collided with trees. TR admitted liability and presumably settled the claimants’ claims but then brought Part 20 proceedings against the highway authority, Devon County Council.
I limit myself to 4 issues. The first is whether the accident was caused by the Landrover entering the rut at the point of a pothole which was a dangerous defect, or whether it entered the rut at a point at which the road was not dangerous. The Council argued that the claimant had to prove whether the precise spot which caused the accident was dangerous (James v Preseli Pembrokeshire District Council  P.I.Q.R. P114). The judge distinguished Preseli on the basis it dealt with pedestrians. She reasoned that cars moved (unlike pedestrians?) and so the relevant issue in a case involving motor vehicles was whether the stretch of road was dangerous and not the precise spot.
The second issue relates to the section 58 defence. The Council had a 6 monthly inspection policy. The Code of Practice recommended a 1 monthly policy. The judge found that the Council had not carried out a risk assessment and justified its departure from the non-mandatory Code of Practice issued by the Department of Transport and therefore had not made out the statutory defence. It was not clear what the risk assessment would have identified, the road had always only had 6 monthly inspections and was notable for the absence of accidents. She did not really deal with the interesting submission that the Bolam test should have been applied when considering the reasonableness of the Council’s system of maintenance.
The third issue also relates to the section 58 defence. The Claimant submitted that it was not open to the Council to say that if it had in fact taken all reasonable care, the accident would not have been prevented; it relied on dicta in Griffiths v Liverpool Corporation  1 QB 374. It was submitted on behalf of the Council that a causation defence was open to the Defendant under section 58; it relied on dicta in Rance v Essex County Council (unreported). Without giving reasons the judge appeared to prefer the dicta in Rance but she then found on the facts that a monthly inspection regime would have prevented the accident.
The final issue relates to contributory negligence. The judge found that the Claimant was not negligent in crossing the white line marking the edge of the road when overtaking and he was not at fault in reacting in the way he did once he had driven onto the potholed and rutted area. Accordingly she did not make a finding of contributory negligence despite the fact that the Claimant had admitted liability in the main proceedings. Curiously the judge did not refer to the reasons why the Claimant admitted liability.
The trial judge gave permission to appeal to the Court of Appeal on section 41, section 58 and contributory negligence. If the Court of Appeal allows the appeal on either sections 41 or 58 but upholds the judgment on contributory negligence then the Claimant will be asking big questions as to why he admitted liability to those who were injured.