Update: personal injury

In 2010 the Court of Appeal provided some necessary clarity as to the limits of a highway authority's liability under the Highways Act 1980.

Historically the duty to maintain a highway passing through any district fell upon the inhabitants of that area. Such a duty having been imposed, it would have been too burdensome to impose civil liability in respect of a failure to maintain the highway. Nevertheless, in respect of a positive act which caused damage to the highway, such as the digging of an excavation, liability would attach.

As the country became industrialised and motor transport developed, it became too onerous for the inhabitants of a district to bear the burden of having to repair the highway. Over the course of about a century, statutory provisions were enacted to impose upon highway authorities the duty to maintain the highway. These statutory provisions were consolidated in the Highways Act 1980, section 41 of which imposes the familiar, absolute duty on the highway authority to maintain the highway '“ a breach of which gives rise to a private law claim for damages.

Maintenance is to be interpreted as including repair by virtue of section 329(1) of the 1980 Act. To mitigate the effect of imposing an absolute duty of maintenance, section 58 created a statutory defence whereby it is a defence in a private law claim for damages for the highway authority to prove that it had taken such care as was reasonably required to secure that the highway was not dangerous.

Transient hazards

At one stage it was considered that the duty imposed on highway authorities by section 41 was more extensive than the common law duty. However, this was rejected decisively in Goodes v East Sussex County Council [2000] 1 WLR 1356, in which the House of Lords held that a highway authority owed no duty to remove snow and ice which had accumulated on the highway.

Approving the dissenting judgment of Lord Denning MR in Haydon v Kent [1978] QB 343 (CA), Lord Hoffmann held that section 41 imposed an absolute duty to maintain the highway but as the duty was the same as the common law duty it extended only to maintaining the fabric of the highway and not the removal of transient hazards such as snow and ice.

In October 2003 Goodes was effectively reversed by a statutory amendment to the Highways Act whereby a new section 41(A) was introduced imposing a duty on a highway authority to ensure that, so far as is reasonably practicable, safe passage along a highway is not endangered by snow and ice. It is important to recognise, however, that the statutory exception applies only in respect of snow and ice and not other transient hazards on the highway in respect of which the reasoning in Goodes remains valid.

What if the non-repair of the structure of highway causes the accumulation of a transient hazard? In Burnside v Emmerson [1968] 1 WLR 1490, the highway authority had installed a proper system of drainage but had not operated the system properly. Gullies had not been maintained with the effect that in heavy rain a large flood gathered on the road, causing a road traffic accident.

The Court of Appeal upheld the trial judge's finding of liability in respect of a breach of the statutory duty to maintain the highway. This authority stood without challenge until the case of The Department of Transport, Environment and the Regions v Mott Macdonald Ltd [2006] EWCA Civ 1089, where an attempt was made to argue that, based on the reasoning in Goodes, the accumulation of debris in a drain was a transient hazard in respect of which a highway authority could not be liable as the duty imposed by section 41 related only to maintaining the surface of the highway.

This argument was firmly rejected; Goodes had not overruled Burnside. On the contrary it had in fact approved both Burnside and Haydon; maintenance of the highway embraced repair of both the surface of the highway and the structure of the highway. The accumulation over time of debris in a drain caused the highway to be in a state of disrepair and the unblocking of the drain fell within the maintenance duty imposed by section 41.

Common law duties?

As a consolidating statute, the Highways Act 1980 gathered together a range of powers and duties imposed upon highway authorities. Attempts to graft common law duties upon these statutory provisions have been unsuccessful.

In Stovin v Wise [1996] AC 923 HL, Mr Stovin was injured when Mrs Wise negligently drove her vehicle from a junction without looking properly. It was alleged that the highway authority had been in breach of its duty to road users because it had failed to improve the sight lines of the junction by removing a bank of earth.

The highway authority had the power (provided by section 39(2) of the Road Traffic Act 1988) to serve a notice on the owner of the land situated adjacent to the highway requiring the removal of the obstruction but had failed to do so. An action based on the negligent failure by the local authority to exercise this power failed. In giving the judgment, with which the majority agreed, Lord

Hoffmann left the door ajar in respect of the argument that a private law action could arise in similar circumstances. It would, however, be a pre-requisite that the decision not to exercise the statutory power was irrational to give rise to a public law duty to act.

The door was firmly slammed shut in Gorringe v Calderdale MBC [2004] 1 WLR 1057, in which the House of Lords held that a failure to paint a warning sign on a road did not amount to a breach of section 41 of the 1980 Act.

Further, no duty of care could be superimposed upon the general powers and duties conferred by statute upon local authorities where the local authority in question had taken a decision not to exercise such a power, however irrational the decision not to exercise the power may have been. However, Gorringe does not prevent liability from being established where a local authority chooses to exercise a power but is negligent in the exercise of that power.

Thus, in Yetkin v London Borough of Newham [2010] EWCA Civ 776, the defendant highway authority allowed bushes planted in a central reservation to grow to the extent that they caused a serious impediment to the view of people using a pedestrian crossing. By allowing the shrubs to grow so large the local authority was negligent in the exercise of its powers and was liable where a pedestrian crossed into the path of a vehicle (subject to a finding of contributory negligence).

Accumulation of debris

In two recent cases attempts have been made to establish liability against highway authorities in respect of the accumulation of debris on the highway.

In Valentine v Transport for London (and another) [2010] EWCA Civ 1358, gravel had built up alongside the A4 Great West Road in Brentford. Mr Valentine rode his motorcycle over the gravel and came off the vehicle, sustaining ultimately fatal injuries.

On a preliminary issue, his widow's action against the highway authority was struck out as, following Goodes, the duty was confined to maintaining the fabric of the road and not the removal of debris from the road.

An action based in negligence against the second defendant, who had in fact carried out some sweeping of the A4 Great West Road, was allowed to continue on the grounds that, while some of the allegations made amounted to allegations of pure omissions in respect of which no duty was owed, some of the allegations could be framed as positive acts of negligence. As this was an appeal from a preliminary issue, a determination of the facts surrounding the accident has yet to be made.

In Ali v The City of Bradford [2010] EWCA Civ 1282, a member of the public was injured when she slipped and fell on some steps, which had become dangerous because of the accumulation of mud.

The steps were part of the highway. A claim for damages for personal injuries was brought on the basis that the highway authority was in breach of section 130 of the Highways Act 1980, which creates powers and duties regarding the obstruction of highways.

The Court of Appeal rejected the assertion that a highway authority was liable in respect of the failure to remove an obstruction from the highway; there was no common duty to remove such obstructions. Section 130 was not concerned with the safety of the highway but with the protection of the rights of the public to use the highway. Further, no cause of action arose in nuisance.

The following propositions can be distilled from the authorities:

• Section 41 of the Highways Act 1980 merely restates the common law duty to maintain the highway but it imposes a private law remedy for breach, subject to the statutory defence.
• The duty under section 41 does not extend to transient hazards such as the accumulation of gravel.
• Section 41(A) does impose a duty, subject to reasonably practicability, to ensure that safe passage on a highway is not endangered by snow and ice.
• If a failure to maintain the highway leads to the existence of a transient hazard such as a flood caused by poorly maintained drains then liability for a breach of section 41 can be established, subject to the statutory defence.
• No common law duty arises from failure to exercise the powers and duties conferred on a local authority.
• Where a local authority elects to exercise a power or duty it will be liable for negligence committed in the execution of that power.