Highway Maintenance: Covid-19 Update

This article addresses the impact of Covid-19 on maintaining safe highways.

Concerned parties will primarily be cautious as to whether altered regimes will impact on the strength of any s. 58 defence.

The relevant part of s. 58 reads as follows, with some emphasis added:

(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.

The obvious concern is that the Court of Appeal in Crawley v Barnsley MBC definitively confirmed Wilkinson v City of York Council.1 Allocation of resources cannot be a factor in considering the reasonableness of a system or regime. Since Crawley there has been no successful attempt to filter or soften the red line drawn by Wilkinson. However, the dicta is often misunderstood.

A proper reading of s. 58 and Crawley distinguishes between issues which are ‘merely a matter of resources’ and issues which go ‘beyond mere resources’.2

The logical question becomes whether the impact of Covid-19 is merely a matter of resources. The writers are of the view that it is not. To adopt the present rhetoric, these are unprecedented circumstances. The structure of society has been fundamentally altered.3

Accordingly, a restructured regime of inspection, maintenance and repair, mandated by a reduction in the available workforce and social distancing obligations, goes beyond mere resources and should not fall foul of Wilkinson, providing care is taken. Decisions based on redistribution of the available workforce may be justifiable, provided they are grounded in a risk-based analysis.

Indeed, since the new highways code of practice, ‘Well-managed Highway Infrastructure’, took effect in October 2018, a risk-based analysis has been placed firmly at the centre of highway maintenance policy:4

Authorities should adopt a risk-based approach and a risk management regime for all aspects of highway maintenance policy. This will include investment, setting levels of service, operations, including safety and condition inspections, and determining repair priorities and replacement programmes. It should be undertaken against a clear and comprehensive understanding and assessment of the likelihood of asset failure and the consequences involved. [A.2.5.1]

There are no prescriptive or minimum standards in this Code. Adoption of a risk based approach, taking account of the advice in the Code, will enable authorities to establish and implement levels of service appropriate to their circumstances. [A.2.5.2]

While the code is merely guidance (and bearing in mind the obvious caution against relying on what could be seen as self-serving guidance), it must be recognised that a risk-based approach going to all aspects of highway maintenance policy, includes consideration of the global risk posed be the spread of an infectious disease. Thus, a restructured regime taking into account the present circumstances is, in fact, mandated by a new code more fluid and adaptable than the old.

Returning to how Crawley and the new code align with s. 58, a flexible risk-based approach informed by factors going beyond mere resources is supported by a textual analysis of “such care as in all the circumstances was reasonably required’. Contextually and practically, s. 58 necessitates judicial consideration of the prevailing limitations, including a depleted workforce and government advice on safe working procedures.

Thus and to be clear, a restructured regime as a result of Covid-19 is supported by a proper reading of Wilkinson and Crawley, the new code of practice, and ultimately s. 58.

Practically, it is understood that some teams are operating at skeletal levels due to staff isolation. This has resulted in prioritisation of critical aspects of highway maintenance.

To assist, the writers consider the following measures to be appropriate and the suggested adjustments to be reasonable, providing they can be supported by reference to a properly reasoned and risk-based analysis. Some of the suggestions respond to questions raised by various authorities:

a) Staff involved at all levels of highways maintenance should be provided with up-to-date instructions to ensure their competence.5 It is suggested that, as part of their record of training, staff be provided with a temporary, focussed internal training note/brief which confirms the details of any restructuring, the reasons for that with reference to a risk-based approach, and which stresses the importance of prioritising critical aspects of the network. Failure to provide proper instructions may open an otherwise good s. 58 defence to fair criticism.

b) When making alterations to existing policies and procedures, authorities should collaborate with neighbouring authorities to ensure where it is appropriate to do so, a consistent approach is adopted [A.43.6].

c) At the same time, local knowledge is key to devising a highway maintenance regime, via a risk based approach, that adequately caters for the unique environment Covid-19 has presented.6 A depleted workforce will require consideration of a more streamlined inspection regime. Any assessment of the highway network and which highways are critical ought to take into account the changes brought about by the coronavirus pandemic. Traditional high priority routes may longer carry the same level of risk due to shops and institutional buildings being closed, and decreased traffic flows. Roads servicing schools or prestige shopping areas, that do not have food stores upon them, may fall within this category. Likewise, those routes leading to medical centres and hospitals, and which will be routinely used by emergency services, may hold a higher priority. Local knowledge will be key to devising an inspection regime that is reasonable, and caters to “local needs [and] priorities”.

d) In view of ‘c’, above, directing routine inspections to critical routes is reasonable, provided that the decisions are supported by a risk-based analysis. This should include, the considerations noted above, as well as considerations of highway function and desirability,7 in the prevailing circumstances, and should actively be reviewed.8

e) Similarly, ceasing inspections of non-critical routes may be reasonable, provided that there is an ability to respond promptly to incident reports (see ‘f’ below), and provided that any decision is firmly grounded in a risk-based analysis. Care should be taken to ensure that such decisions are actively reviewed and supported by reference to the actual staff levels vis-à-vis normal staff levels.

f) If practical, supplementing a reduced maintenance regime with an effective defect reporting system will bring additional benefits to authorities, not least in respect of s.41 arguments (the public did not deem the defect sufficiently hazardous to warrant reporting), but also any s.58 defence. Courts may consider it more reasonable for authorities to focus on a reactive system, at least on some parts of the network, especially if inspections in an area have ceased. Keeping communication lines open, and ensuring reports are appropriately triaged so that those defects that present the greatest risk can be identified and responded to, will be a key consideration.

g) Leading on from that, authorities may consider broadcasting any changes to their maintenance regimes to the public at large, for example, by publishing a notice on their website. It may be considered prudent to issue a warning that the public can no longer expect the same level of maintenance in light of the Covid-19 restrictions and that they ought to take additional care when using the highway for essential travel. Such a warning would assist authorities, in showing that they have 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”. A reduced maintenance regime, supplemented with a warning, may inform a court’s decision upon whether the state of repair is that which a “reasonable person would expect to find”, against the backcloth of Covid-19 [s.58(2)(c)]. It would also assist authorities in showing that it took all practicable steps to warn the public of defects which it could “not reasonably have been expected to repair” [s.58(2)(e)] .

h) Reviewing the nature of inspections is reasonable; for example, carrying out driven inspections without an observer or changing walked inspections to driven inspections. With pedestrian flows likely to be lower than normal, it may allow a greater emphasis on the carriageway Such decisions would be in line with HSE/NHS advice on safe-working and may allow a greater amount of the network to be inspected. This is in line with the New Code, wherein a risk based approach should focus on the outcome.9 Whilst a trip on the footway is undesirable, injuries sustained are predominantly minor in nature, whereas a significant defect on the carriageway could have catastrophic consequences. As above, decisions must be reasoned, evidenced and grounded in a risk-based analysis, with detailed guidance provided to inspectors so that they are competent in performing their duties to the best of their ability, whilst remaining safe.

i) It is inevitable that authorities will not be able to carry out repairs at the level and frequency previously enjoyed. Prioritising the most urgent and dangerous defects is reasonable. However, a blanket approach (for example only attending to category 1 defects) is unlikely to be deemed reasonable. The New Code discusses investigatory levels [A.5.8.2], i.e. a guideline provided to inspectors where they ought to take a closer look. Investigatory levels can be distinguished from intervention levels, i.e. a level at which there will be a presumption for repair. Instructing inspectors to exercise their discretion, to enable them to carry out an active risk assessment of those defects which may cause the greatest risks in the particular circumstances, so that critical, high priority routes can remain safe, may be advisable. In due course courts may take the view that raising intervention levels alone may be unreasonable, but if inspectors retain discretion and continue to dynamically risk assess each defect, against the backcloth of necessary increases to investigatory levels, arguments that such measures were reasonable in these “unprecedented times” may have greater weight. Justification of such decisions should be documented, and any decision which results in a repair being delayed must be supported by a risk-based review. It is suggested that a contemporaneous record of such decisions be made with reference to safe-working practices/prioritisation of other critical repairs as a result of Covid-19, where appropriate.

j) Demonstrating re-deployment of staff to roles which can be carried out remotely or individually will be crucial when evaluating whether the above adjustments are reasonable. For example, providing self-isolating staff with remote access to review incident reports or to conduct aspects of an active risk-based analysis should be considered and implemented where possible.10 If such measures are not possible, reasons should be given and recorded which are not based on affordability.

Of course, all of the above has to be considered against each authority’s capacity and the practicalities of implementing the same. Local knowledge and capacity will determine what measures can be adopted to safeguard both the public and staff.

Further, the above list is non-exhaustive, and care must be taken to ensure that any measures cannot be seen as decisions merely based on resources. Courts will be swift to identify circumvention of Wilkinson through the back door. It would be embarrassing, with a wide detrimental impact, should a local authority be deemed to have identified Covid-19 as the reason for affordability based decisions.

The above is strictly educational in nature. It is not advice. Highways claims, policies and regimes are inherently fact and circumstances specific. Formal advice is recommended before any policies and/or regimes are amended in light of Covid-19.

Notes to article:

1. Crawley v Barnsley MBC [2017] EWCA Civ 36; Wilkinson v City of York Council [2011] EWCA Civ 207
2. Crawley, para 45 per Briggs LJ. See also para 34 per Jackson LJ
3. Crawley, para 34.
4. For a review of how the new code may influence litigation, please click here.
5. The latter aspect of s. 58 is often overlooked: ‘…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.’
6. A.1.1.5 of the New Code discusses local needs and priorities.
7. Well-Managed Highway Infrastructure, A.4.3.2-3
8. Ibid, A.4.3.8 – Should routine inspections be reduced, the need for active review is of paramount importance.
9. A.2.5.1 discusses adopting a risk based approach which takes account of the likelihood of asset failure and the consequences involved.
10. By way of example, if inspection of a low risk-route is ceased for a period during Covid-19 restrictions and a claim is subsequently brought, it would lend great strength to a s. 58 defence to be able to demonstrate that while routine inspection of the route did not take place, once notified of the defect redeployed staff were able to conduct a risk-based assessment promptly and address inspection and repair as swiftly as possible in line with available staff levels and safe working practice. Such an approach would, in the writers’ view, be reasonable.

Martin Ferguson, a member of Farrar’s Building, is pleased to have considered the ramifications of Covid-19 on highway maintenance, with Owen Welsh of Plexus Law.

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