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Billington v Devon County Council Barnstaple, County Court, 4 April 2007

17 April 2007
The issues

Highways Act 1980 – Highways Act 1980 Section 100 – Costs Order in Small Claim – Highway Authority’s liability for flooding or ponding on the highway.

The facts

The Claimant damaged her vehicle whilst driving through flood water on a little used rural lane in North Devon on the 19th October 2005. The Claimant brought proceedings alleging fault on the part of the Defendant in failing to rectify the flooding problem despite prior warning; failing to ensure that the road was safe; and failing to provide a duty of care by ensuring the area was safe for the public to pass.

The Defendant Highway Authority defended the claim in negligence. The County Council’s case was that it had been aware of intermittent ponding problems in this locating. The problems occurred in periods of heavy rainfall only. The County Council, investigating the problem, found that a highway drainage made on land owned by a 3rd party farmer adjacent to the highway, had broken, causing the failure of the highway drainage system. The flooding was an intermittent problem, the highway was in a rural little used area, and no property was affected by the flooding. Accordingly, it was considered a low priority in terms of drainage need. Notwithstanding this however, the County Council took steps to liaise with the land owner to try to rectify the problem. It was acknowledged that the Council had statutory powers under Section 100 of the Highways Act 1980 to provide the highway drainage. To carry out the works itself however would have cost the Council in the region of £12,000-£15,000. Eventually, an agreement was reached with the farmer that the Council would provide the relevant pipes and the farmer would install them. The total cost to the County Council and therefore the tax payer being the in region of £500.00. Unfortunately, it had taken some time to put this arrangement in hand and in the interim, the Claimant’s accident had occurred. The Defendant Council argued that, given the low risk to highway users, the steps taken by the County Council were reasonable.

The claim was pursued to a small claims trial at the Barnstaple County Court.

The decision

At the hearing the Claimant’s applied to amend their Particulars of Claim to plead breach under the Highways Act 1980. The Application was allowed. The Court however found that the Defendant Council could not be held liable for nonfeasance relying on Sandhar v Department of Transport and Thoburn v Northumberland County Council. The Court found that since it was accepted that the drain in question was on third party land this was not the responsibility of the Defendant Council as they had no responsibility to maintain land other than the highway. The Court further found that although Highways Act 1980 Section 100 gave the Defendant Highway Authority there was no duty on which the Claimant could rely.
Claim dismissed.

In relation to costs, the Court was referred to Part 27.14 of the Civil Procedure Rules 1998 and to the Defence which set out that there was no common law duty owed by the Defendant. The Defendant argued that the Claimant had ample time to research the point and to withdraw the claim and accordingly an order for unreasonable costs was made against the Claimant in the sum of £350.00.

For further information please contact Joanne Pruden at jopruden@veitchpenny.co.uk.

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