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Thompson v Hampshire County Council, Court of Appeal, 6 July 2004

3 August 2004
The issues

Highways Act 1980 – Maintenance Of Highway – Claimant On Verge Of Highway Using Path Made By Visitors To Local Campsite Adjacent To Ditch – Whether Juxtaposition Of Path And Ditch was Fault of Highway Authority

The facts

In August 1999 the Claimant then aged 33 was taking a holiday in the New Forest with her family and staying at a camping and caravan site at Balmerlawn in Hampshire.

On 5th August having visited her brother who lived locally she was dropped in the area of the campsite at the junction of the A337 with the B3055 at about 10.30 pm. It was dark. The roads were unlit. The Claimant made her way in the dark along the verge of the A377 along a narrow beaten earth track. She fell into a ditch beside the track just where it emerged from a culvert and broke her ankle. She had strayed from the path but perhaps by no more than a step. She was trapped in the ditch for 15 minutes and four passers by heard her and helped her.

The injury is said to have had a significant impact on her life. The matter had proceeded before the Judge on liability only. The Judge found for the Defendant. The Claimant appealed.

It was common ground that the verge on which Mrs Thompson was walking was part of a highway. The verge immediately beside the road was cut twice a year to provide a band of shortened grass one metre wide for pedestrians walking alongside the road. The full extent of the verge was wider and extended in an unmown state right up to a north south wooden fence bordering a cricket field and which was the boundary of the highway. At one point the ditch which was culverted beneath the grass verge emerged close beside the path. From that point the path continued with the fence to her right and the ditch to her left with some vegetation alongside the fence. The ditch continued along the left hand side of the path for about 40 metres until it disappeared into a culvert underground again.

Where the ditch first emerged from the culvert it was very close to the path and the drop into it was hidden by grass overgrowing brickwork at the end of the culvert.

The footpath was not an official footpath but had been made over the years by visitors to the campsite. The Council highway department’s evidence was that it did not know of its existence prior to the accident. No previous incident or accident had ever been reported to the Council.

The decision

The Highway authority is not responsible under its statutory duty to maintain the highway, for the highway’s layout. The duty is not a general duty to ensure that a highway is not dangerous to traffic but no more than a duty to repair the structure of the highway if it is out of repair. See Goodes and Gorringe.

A duty in common law negligence might go further where such negligence amounted to a positive act of entrapment or ensnarement. No such allegation had been made in this case.

Neither ditch nor culvert nor pathway were out of repair or in disrepair. It was simply that a walking path next to a ditch presented certain dangers. However, this was just such a natural danger to the user of a highway as he must be prepared to overcome by his natural caution. The ditch was party of the contour of the land. To say that such a ditch needed to be filled in or covered over would be tantamount to saying that all verge ditches would have to be similarly filled in as a matter of the statutory duty to maintain the surface of the highway. This would be going hugely beyond an authority’s previously understood duty. Just because there is no liability for breach of the statutory duty unless the lack of repair of the highway amounted to a danger to its users, it did not follow that the duty itself was a general duty to make the highway safe for its users.

Although there was no need to make a finding of contributory negligence since no liability lay against the highway authority, had that arisen, the Judge would have been entitled to assess her contributory negligence at one third in failing to take reasonable care for her own safety and in particular in taking to a path which she had never used before at night and without illumination and in circumstances where she could not see where she was putting her feet.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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