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Valentine v (1) Transport for London and (2) Hounslow London Borough Council, Court of Appeal, 7 December 2010

10 December 2010
The issues

Highways – Section 41 Highways Act 1980 – substances lying on the highway – gravel – Litter Authority – Environmental Protection Act 1990.

The facts

On the 4th April 2006 Mr Valentine was leaving a car park and turned left onto the A4. As he was exiting from the slip road his motorcycle skidded on gravel or loose debris, which he alleged was extensive, present on the road surface between the cycle path and the main carriageway of the A4. He lost his balance and was thrown from the motorcycle to the ground. Mr Valentine was thought to have suffered a minor injury but it sadly turned out that he had developed an acute subdural haematoma and died the following day.

The Claimant widow brought an action against Transport for London as the Highway Authority for the A4 and against the London Borough of Hounslow as the agent of Transport for London and charged with the responsibility for maintaining, inspecting and cleaning the road. Hounslow did not accept that that description accurately described its position. It said it was the “litter authority” under the Environmental Protection Act 1990.

The claim against Transport for London is put under the Highways Act 1980, Section 41 as a breach of statutory duty to maintain a highway. The case against Hounslow was in negligence, alleging a failure to inspect, clean or clear the highway of gravel or to warn Mr Valentine. The matter came before the Judge on the basis of an Application to strike out the claims against both Defendants.

The Claimant Appealed.

The decision

1. The claim against Transport for London

The Judge struck out this claim on the basis that the duty to maintain did not extend to a duty to remove surface lying material, obstructions or spillages. There could be no doubt following the decision in Goods v East Sussex County Council that whether the position was anomalous or not, there was no duty under Section 41 to remove surface lying matter or obstructions from the highway. An attempt had been made to pray in aid the decision in Mott McDonald v Department of Transport and Burnside v Emerson. Both of those cases however were concerned with the structure of the highway and could not be relied on in opposition to or to distinguish the decision in Goods. The Judge had been right to strike out the claim against Transport for London.

2. The claim against Hounslow London Borough Council

Hounslow were the “litter authority” under Part 4 of the Environmental Protection Act 1990. That statute however was neither pleaded nor relied upon. It was not suggested that the duties of an authority under Section 89 of that Act gave rise to liability in a private civil law action for breach of duty. Neither was it contended that any relevant statutory power or broad statutory duty under which Hounslow sent its road sweepers along the A4 gave rise to any common law duty to the deceased requiring Hounslow to act. It was put however for the Claimant that this was a case where a statutory undertaker had not simply failed to act, but had acted negligently. Having elected to sweep the road, it had done so carelessly. The distinction between acts of omission and commission could sometimes be troublesome. This seemed more a case of omission. The allegation was not that it had made matters worse by the manner in which it did its sweeping but rather that it omitted one section of the road from its attentions. This seemed no different from a contention that it owed a duty to do something positive, rather than nothing, in relation to that section of the road.

However, the action against Hounslow would not be struck out. First, it ought to be open to the Claimant to argue that on the facts of the case the cleaning of the road generally created a trap. That would be a complaint of a positive negligent act which left the road more dangerous than it would have been if nothing at all had been done. Secondly, the pleaded case left it open for the Claimant to advance a genuine case of a sin of commission. Paragraphs 4 and 9 of the allegations of negligence left it open to the Claimant to advance the claim that by sweeping straight along the kerb line, even when the sweeper was alongside the slivers of tarmac either side of the entrance or exit, the sweeper had pushed into the sliver the grit which in due course was alleged to have been the cause of the accident.

Appeal dismissed in respect of Transport for London.

Appeal allowed in respect of the strike out against Hounslow.

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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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