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Ali v Bradford City Metropolitan District Council, Court of Appeal, 17 November 2010

1 December 2010
The issues

Highway claims – Highways Act 1980 Section 130 – nuisance – whether Section 130 Highways Act 1980 gave rise to a civil action for damages – footpaths.

The facts

The Claimant slipped when she was walking on a public footpath as a result of an accumulation of mud and debris. She brought a claim for personal injuries. The footpath ran between Dick Lane and New Street in Bradford and came within the definition of the highway maintainable at public expense under Section 36 of the Highways Act 1980.

At the entrance from Dick Lane there were several stone steps. The steps were covered with a considerable amount of mud, overgrown vegetation and all sorts of rubbish. The matter came before the Court of Appeal on an Application to strike out and therefore on the basis of assumed facts which were:-

That the Claimant was walking on the 19th September 2006 with a friend when they came to the footpath and she started to go down the steps. When she reached the third of fourth step she decided they were too dangerous. She turned to tell her friend not to follow, slipped, and fell. She alleged that the condition of the footpath had been neglected by the Highway Authority for a long time. Although she initially alleged a breach of duty under Sections 41 and 150 of the Highways Act 1980 and under the Occupiers Liability Act 1957 and in negligence, by the time of the Hearing before the Deputy District Judge, the heads of claim were limited to breach of duty under Section 130 of the Highways Act 1980 and nuisance. Section 130 of the Act imposed a duty on a Council who was a Highway Authority to prevent the stopping up or obstruction of the highway and to prevent any unlawful encroachment on any roadside waste comprised in a highway for which they were the Authority.

Section 149 of the Act empowered the Council to require a person who deposited on a highway which amounted to a nuisance to remove it or, under certain circumstances, to remove it itself.

Section 150 provided that if an obstruction arose on a highway from an accumulation of snow or from the falling down of banks or from any other cause, the Highway Authority “shall remove the obstruction”.

The Claimant Appealed against an Order that her pleadings disclosed no cause of action.

The decision

Tracing the history of Section 130 to Section 26 of the Local Government Act 1894, it was clear that Parliament had not intended any private right of action under the 1894 Act, from which Section 130 of the 1980 Act descended. There was nothing in the language of Section 130 to suggest that Parliament had intended differently. Section 130 was concerned with the protection of the legal rights of the public at large and about access, not about safety. It placed no express obligation on the Authority to remove obstructions and there was no justification for imposing such an obligation. Section 150, which did make express provision about the duty of an Authority to remove obstructions, was a public law duty with its own statutory method of enforcement. The same was true of Section 130.

After the decision in Goodes v East Sussex CC, Parliament had extended the law to create greater rights, but only the limited extent set out in Section 41(1a) and in respect of ice and snow.

The claim in nuisance was based under the principle established in Sedleigh-Denfield v O’Callaghan:-

“An occupier of land “continues” in nuisance if, with knowledge or presumed knowledge of its existence, he fails to take any reasonable means to bring it to an end, though with ample time to do so”.

In so doing, the Claimant also relied on a passage of Lord Scott in Gorringe v Calderdale in which he had noted that other than for claims arising out of a failure to maintain under Section 41, liability continued to be determined by the common law principles of negligence or public nuisance.

To apply the ruling in Sedleigh-Denfield to these circumstances would involve extending its ratio to a very different type of situation from that which the Court was considering. To compare a relationship between neighbouring private land owners with the relationship between a Highway Authority and users of the highway was not to compare like with like. Significantly, a Highway Authority was not an occupier of the highway and did not owe to highway users a common duty of care as Lord Hoffmann had noted in Gorringe.

The Highways Act provided a complex statutory code governing the obligations of Highway Authorities. To require Highway Authorities to carry out regular precautionary inspections of public footpaths of all descriptions to see that they were kept free from obstructions would have substantial economic implications for Local Authorities. The Courts did not have the tools for carrying out a costs benefit analysis for deciding the merits of imposing such an obligation. Moreover, the legislation contained specific provisions regulating the powers and duties of Highway Authorities with respect to the removal of highway obstructions and established a method for enforcing that duty. That method included provision for the balancing of risks against resources in individual cases (see Section 150(3)).

Parliament did not intend that breach of a Highway Authority’s duty under Section 150 for the removal of obstructions should give rise to a private action for damages. For the Courts to impose such a liability through the law of nuisance would be to use a blunt instrument to interfere with a carefully regulated statutory scheme and would usurp the proper role of Parliament. It had to be stressed that in this case the Court was no dealing with a nuisance created by the Highway Authority and that there had never been a suggestion that a Highway Authority would not be liable at common law for a nuisance which it had created. It was doubtful that Lord Scott had in mind in his comments in Gorringe a case of pure omission, but in any event his observation was obiter.

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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