There was a four to 12-inch drop from the road to the verge next to it. West Sussex County Council had filled it in with topsoil about four years before to bring it level with the road. However, it had worn down again, perhaps through cars parking in it as a lay by for nearby fishing purposes.

The claimant was driving at 45mph on the road. There was a 60mph limit but there were icy conditions and she was injured when the car skidded on some black ice, left the road and “dropped off” in a manner where she could not correct her car back on to the road. She hit a tree.

Police who attended immediately noted the drop caused by the verge had played a part in the accident: the driver had lost her grip on the road.

First it was upheld that the verge forms part of the highway and there was a duty to maintain it.

But was there a duty to maintain a road for careless drivers who had driven inappropriately so as to be at the edge of the road? The Court of Appeal said the local authority had to anticipate that not all drivers were perfect. There had to be allowance that drivers make mistakes, even negligent ones, and maintenance was not just for model drivers but should allow for errors of judgment. Several authorities were quoted to that effect (for example Rider -v- Rider [1973] 1 QB 505).

The accident investigation policeman’s instant observation that the drop was dangerous helped the Judge to conclude that it was significant hazard under s 41 of the Highways Act for someone at the edge of the highway for whatever reason. It also led to a judgment that no proper defence of adequate inspection systems could be made out under s 58 because the inspections must by definition have fallen short in failing to spot the obvious and dangerous drop.

The council had to anticipate that drivers may leave the road as a result of carelessness and, as it was aware of the danger of a steep drop and had taken measures years prior to the accident to level the verge with the road, it should have continued to maintain the verge.

It had therefore not taken reasonable steps to make the highway safe for traffic. The claimant was 50 per cent contributorily negligent for her part in this accident.

West Sussex County Council -v-Sarah Russell [2010] EWCA CIV 71.