“Policy Isn’t Protection: Why Highway Authorities Can Still Lose Pothole Claims in Court”

Highway authorities often rely heavily on their internal policies—inspection regimes, intervention criteria, and repair timescales—when defending claims arising from potholes and carriageway defects. On paper, this approach appears sensible: if the authority has followed its own system, surely it has done enough.

But the law tells a different story.

The courts have made it clear that compliance with policy is not the same as compliance with legal duty. In fact, strict adherence to internal standards can still leave an authority liable where a defect presents a real and foreseeable danger to road users.

The Legal Duty: More Than Just Following the Manual

Under section 41 of the Highways Act 1980, highway authorities have a duty to maintain highways in a condition that is reasonably safe for ordinary traffic. This is an objective legal standard—not one defined by internal documents.

Authorities often attempt to rely on section 58 of the Act, which provides a defence if they can show they took reasonable care through proper inspection and maintenance systems. However, this defence is not absolute.

The Key Problem with Policy-Based Defences

Highways policies typically include:

Minimum defect depths (e.g., 40mm pothole threshold)

Risk-based inspection intervals

Repair response times (e.g., 24 hours, 7 days, 28 days). While these are useful operational tools, they are not determinative in law.

A pothole that falls just below an intervention threshold can still be dangerous enough to:

Cause a cyclist to fall. Damage a vehicle suspension or Burst a tyre. If that danger is foreseeable, the authority may still be liable—even if its policy says no repair was required.

The Leading Authority: Garwell v North Yorkshire County Council [2019]

The case of Garwell v North Yorkshire County Council [2019] is a powerful illustration of this principle.

What Happened?

The claim concerned a defect described as a “bump” or depression in the road surface.

What Did the Court Say?

The court emphasised that:

Following an inspection manual is not enough. A prescriptive approach (i.e., rigidly applying thresholds) is insufficient.

The real question is whether the defect posed a foreseeable risk of injury or damage.

Why It Matters?

The case confirmed that:

A highway authority cannot hide behind its own policies if the defect itself is dangerous.

Even where a defect technically falls within acceptable tolerances, liability can still arise if:

The risk to road users is obvious.

The danger is foreseeable.

The consequences (e.g., tyre damage) are realistic.

Danger Trumps Thresholds.

In practical terms, courts are increasingly focused on the actual risk posed, rather than whether a defect ticks a policy box.

For example:

A pothole slightly below the intervention depth but located on a busy bend may be highly dangerous.

A shallow but sharp-edged defect could easily burst a tyre.

A depression in a cycling lane may pose a serious risk to vulnerable users.

In such cases, the authority’s defence—“it didn’t meet our criteria”—will carry little weight.

Inspection Systems Are Evidence, Not Immunity

Inspection records and maintenance policies still matter. They form part of the section 58 defence and can demonstrate that an authority has a system in place.

But they are only one piece of the puzzle. Courts will also consider:

The nature and location of the defect.

The likelihood of harm.

Whether the danger was obvious or foreseeable.

Whether a reasonable authority would have acted differently. If the answer to that last question is “yes,” the defence may fail.

The Practical Impact on Pothole Claims. For claimants, this means:

You do not need to prove the authority breached its own policy.

You need to show the defect was dangerous and foreseeable.

For highway authorities, it means:

Policies must be applied with judgment, not mechanically.

Inspectors must consider real-world risk, not just measurements.

Documentation should reflect risk assessment, not just compliance.

Conclusion: Policy Is a Tool—Not a Shield.

The takeaway is simple but crucial:

Highway authorities cannot rely solely on their own policies to avoid liability.

As Garwell v North Yorkshire County Council [2019] demonstrates, the courts will look beyond internal rules and focus on the actual safety of the road. If a pothole is dangerous enough to damage a tyre—or worse—then ticking the right boxes on a checklist will not be enough.

In highway law, risk beats routine every time.