COVID-19 and its implications on the condition and maintenance of highways in the UK
As this is a fast moving topic, please note that this article is current as at 29/04/20. For further information, please contact Mandy Williams.
As the current pandemic continues to evolve it gives rise to issues of highway network safety, which allows for the possibility of claims that may arise due to the condition of the highway. At this time, the biggest risk in highway claims is going to be the courts consideration of any interim highway policies.
The highway authority (HA) has a statutory duty to maintain the highway. COVID-19 does not change these responsibilities and a HA must act reasonably to ensure the highway is not dangerous.
In addition, the Well-Managed Highway Infrastructure – A Code of Practice (the Code) assists HAs in all matters of highway maintenance, allowing highway inspectors to dynamically assess each defect and use their discretion. The Code confirms that highways should be classified due to their current and expected use, their resilience, and local economic and social factors. Such classification uses local knowledge to determine how often highways should be inspected, which is likely to have changed due to current travel restrictions reducing usage in certain areas, such as town centres. The highway inspectors discretion can also apply to the priority placed on repairs, having regard to the dangerousness of the damage and the likely impact on any delay in carrying out the necessary repairs, which again, will have altered due to the current usage of highways.
A vital component of the Code is collaboration with neighbouring authorities, which is of particular importance in developing the classification of highways. However, collaboration may not have been possible at this current time due to the speed in which interim policies had to be implemented. The impact of failing to do this could have an effect on claims if, for example, neighbouring authorities, who share the same highway, have different interim policies. As the current situation is fluid and the interim policy will be regularly reviewed, consideration should now be given to collaboration.
Should any future claims be presented, allocation of resources by itself is unlikely to be a defence, however we are in extraordinary times and allocation of resources should be measured alongside other issues, such as a depleted workforce and delays in the supply chain for materials.
It is essential that you retain documented interim policies. Justification of the change in policy will be important to demonstrate it’s not just a ‘blanket’ policy but that there has been considered reasoning as to why, for example, no driven inspections are being carried out or why only urgent repairs are being undertaken. Highway operatives need to be told of these interim changes and be kept up to date. Highway inspectors are likely to be cross-examined on their dynamic risk assessment and therefore need to know the interim measures in place. Policies will need to be constantly reviewed as the fluid situation changes and moving forward during any phased return to normal life.
Many prospective claimants will have more time on their hands so there is the potential for more claims, but given the reduced highway usage, we expect claims to reduce. On the flip side however, is the potential for more employer’s liability claims being brought by highway operatives as a result of infection and overwork leading to psychological or physical injury.
Network safety still remains important to ensure roads remain open for key workers, the emergency services, delivery drivers and utility companies, and yet COVID-19 has had a particular impact on the way in which highway inspections and repairs are being carried out and many HAs have interim policies in place whilst priorities change.
Changes to the usual inspection and repair policies is reasonable during the outbreak, provided your decision-making process is considered and documented. The Code will assist with this and particularly in implementing levels of service appropriate to the circumstances. Looking to the future, consideration will need to be given to new ways of assessing the highway network, through such things as video capture technology.
Related item: Guidance: COVID-19 and employers’ liability claims