Section 58 of the Highways Act 1980: The Defence Councils Use

For incidents in England and Wales, a highway authority may rely on Section 58 when responding to a pothole damage claim brought under Section 41 (their duty to maintain). It is one possible defence and is relevant to many of the most common rejection reasons. Understanding the records behind it can help you assess the authority's response.

Keep network condition surveys separate from safety inspections. For example, the Dudley road-maintenance data describes a four-year condition-survey cycle for unclassified roads; that cycle does not show when a specific street was safety-inspected.

Compare the response with location-specific records. No category below proves notice, breach or liability on its own:

Councils set inspection frequencies based on road classification — you can see how individual councils perform on road maintenance. The figures below are general examples, not legal standards; use the authority's policy and completed records for the road:

Section 58(1) provides that, in an action against a highway authority for damage resulting from its failure to maintain a highway, it is a defence 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. Section 58(2) lists the matters a court must have regard to:

1. the character of the highway, and the traffic which was reasonably to be expected to use it;
2. the standard of maintenance appropriate for a highway of that character and used by such traffic;
3. the state of repair in which a reasonable person would have expected to find the highway;
4. whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
5. where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed.

The same subsection adds that it is not enough for the authority to show it had arranged for a competent person to carry out or supervise the maintenance, unless it also proves it gave that person proper instructions and that the instructions were carried out. That is why contractor records can be relevant alongside the authority's own.

Read the section in full on legislation.gov.uk. The duty it answers is in Section 41, and the whole claim process is set out in the step-by-step pothole claim guide.

The RAC's Freedom of Information analysis of 2023 claims, published in 2024, covered 21 English councils. The 17 councils that paid any compensation paid 3,131 of 20,432 claims (15%). Of the nine councils that gave reasons for refusal, 6,028 of 8,172 refused claims (74%) were refused on the basis that the council did not know the pothole existed. That is the knowledge question in Section 58(2), and it is the most common reason a pothole claim in England and Wales is turned down.

Source: RAC, council pothole compensation claims double in a year. The figures are for the councils that answered and are not a national rate. They do not say anything about a specific road, which is why the records for the location matter more than the averages.

A refusal letter that cites Section 58 usually rests on inspection and defect records you have not seen. You can ask for them. Road-condition and maintenance records are normally handled under the Environmental Information Regulations 2004, and the authority has 20 working days to respond. Send the request to the authority's information or FOI team, quoting your claim reference, and keep the request and the response together with your claim file.

Request for recorded information: Environmental Information Regulations 2004

Location: [road name, nearest postcode or what3words, direction of travel, lane]
Incident date: [date]     Claim reference: [reference]

Please provide the following recorded information for the location above, covering the 12 months before the incident date and the 3 months after it:

1. The safety inspection policy and inspection frequency that applied to this road, including the investigatory level for potholes.
2. The dates and results of each safety inspection of this location in the period, including the name of the inspection route or section.
3. Every defect, enquiry or report recorded for this location in the period, with the date received, the source (inspection, public report, other) and the risk category assigned.
4. Every repair order raised for this location in the period, with the date raised, target response time and the date the repair was completed.
5. Where the maintenance or inspection was carried out by a contractor, the instructions issued to the contractor for this location and the records showing they were carried out.

I would prefer the information by email as copies of the original records rather than a summary. If any part of this request would exceed the cost limit, please tell me which part and provide the rest.

When the records arrive, compare them with the refusal letter and the authority's stated policy. Look at the last inspection date, whether anything was recorded at the location before your incident, and how any recorded defect was categorised and repaired. A gap between policy and practice is something to put back to the authority; it is not, on its own, a finding of liability.

The full inspection-records guide has longer EIR and FOI templates and explains what to do if the authority refuses or charges. If you decide to go further, the rejected claim guide and the small claims court guide set out the next steps.