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Department for the Transport Environment and the Regions v Mott McDonald Ltd & 2 Other Defendants, Court of Appeal, 27 July 2006

11 August 2006
The issues

Highways – Liability of Highway Authority for water on road – flooding – flood – Highway Authority’s liability for drains.

The facts

The Department of Transport appealed from the decision of the Judge on a preliminary issue in three consolidated cases arising out of similar accidents. Each case arose out of an accident allegedly caused by standing water on the Highway, which was a result of the Highway Authority’s failure to maintain highway drains and in breach of its duty under Section 41(1) Highways Act 1980. The proceedings before the Court were Part 20 claims by the Highway Authority against its maintaining agents. The Highway Authority settled each claim with the original Claimant and sought to recover outlay from the agents. The agents took the point that there was no breach of Section 41 and in particular that after Goodes v East Sussex County Council the Section 41 duty did not include a duty to maintain the highway drains.

The agents maintained that the decision in Burnside v Emerson, to the effect that the duty to repair included the drainage system, was no longer good law.

The preliminary issue, as redefined by Counsel before the Court of Appeal at the request of the Court was:-

“Whether the Highway Authority would have been liable in law to the original Claimants, in their actions upon the following assumption: ÷.. That the accidents were caused by a dangerous accumulation of water on the surface of the highway, caused by the long standing blockage of the highway drainage system by silt, debris or vegetation”.

The decision

The central question for the Court was whether the decision in Burnside v Emerson remained binding. That argument concealed two issues. Firstly, “the surface” issue i.e. whether the Authority’s statutory duty to maintain the highway applied only to the surface of the highway and did not therefore extend to highway drains beneath or beyond the traffic surface and secondly the “repair” issue, namely, if there were a duty to maintain such highway drains, whether it required only the repair of physical defects in the fabric of the drains and did not extend to clearing blockages.

In Burnside v Emerson a car had an accident when it ran into a pool of water in the road and swinging into the path of a car coming in the opposite direction. The Judge found the Highway Authority liable on the grounds that although they had a good system of drainage, they had not operated it properly and the water on the highway which resulted constituted a danger due to their failure to maintain. That decision was upheld on appeal. Burnside established three elements for the Claimant to prove:-

i) The Claimant had to show that the road was in such condition as to be dangerous for traffic;

ii) The Claimant had to show that the dangerous conditions were due to a failure to maintain, which included a failure to repair the highway. A distinction was to be drawn between a permanent danger due to want of repair and a transient danger due to the elements. Where there was a transient danger due to the elements, whether it was snow, ice or heavy rain, the existence of a danger for a short time was not evidence of a failure to maintain;

iii) If there were a failure to maintain the Highway Authority was liable prima facie for any damage which resulted and could only escape liability if it could show that it took such care as in all the circumstances was reasonable.

There had been a number of decisions since Burnside which touched on both the surface issue and the repair issue.

1. The Surface Issue.
None of the cases availed the Highway Authority. They established that the duty was not confined to the surface of the road but that the surface was simply treated as one important part of what was to be maintained, which was the structure and fabric of the road way. Burnside was not inconsistent with any of the subsequent authorities and consequently the Court remained bound by it.

2. The Repair Issue.
The Court had been asked to consider Lord Denning’s Judgment in Haydon v Kent County Council and Goodes v East Sussex. The Court did not understand either Lord Denning in Young or Lord Hoffman in Goodes to have been saying that the statutory language could be ignored and the section treated as if it referred only to repair without any mention of maintenance. Their purpose was to rebut the suggestion that the word could be read without regard to its pre-1959 history. Repair was not an obvious word to describe the removal of vegetation from a footpath although it was a fair description of the process of making good the surface after removal, but the term maintenance was perfectly apt for the combined operation. The flooding had been due to “poor drainage maintenance” according to the engineers involved in the claim. That was a natural use of the word “maintenance”. There was nothing in the authorities to suggest that it was not an equally natural use of the word in the context of the pre-1959 law. There was nothing that had been produced to throw any doubt on that aspect of the reasoning in Burnside and again the Court was bound by it. The Judge had been wrong to hold otherwise and the appeal would be allowed; the preliminary issue would be answered in the affirmative.

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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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