We reported on this case, where Kennedys acted for the successful First Defendant, Transport for London (TfL), in the June 2010 edition of Liability Brief. We are pleased to confirm that the Court of Appeal has today upheld the first instance decision in favour of TfL.
This case had the potential to cause significant additional expense and upheaval for local authorities. The Claimant’s case was that s.41 placed a burden on local authorities to keep the highway free from any build up of dirt, gravel or detritus on the surface of the carriageway. Crucially, it was not alleged that the grit/dust/detritus had arisen from any breakup of the fabric of the highway. As s.41 places an absolute duty on a highway authority, the potential additional cost and liability, both in public and private law, would have been very significant.
The Claimant also brought a claim against the London Borough of Hounslow (LBH), which was the cleansing authority under the Environmental Protection Act 1990, for its failure to carry out the cleansing operation properly. In relation to the claim against LBH, the Court of Appeal allowed the appeal by the Claimant, finding there was a triable issue, and remitted the case back to Central London County Court for a full trial.
The claim was brought by Mr Valentine’s widow, following his tragic death. He had slipped and fell from his motorbike pulling away from a slip road onto the A4 in the London Borough of Hounslow. The Claimant’s case was that the accident had been caused by build up of detritus, grit and or gravel on the carriageway, which caused his back wheel to slip as he accelerated onto the main road. LBH was involved as cleansing authority, with responsibility for keeping the road surface clean.
TfL contended that s.41 did not include a duty to keep the carriageway free from transient or any surface detritus, and relied on Lord Denning’s minority judgment in the Court of Appeal case of Haydon v Kent County Council [1978] later approved by the House of Lords in Goodes v East Sussex County Council [2000].
Lord Justice Hughes, who gave the leading judgment in this case, stated that s.41 did not include a duty to remove from the surface material lying upon it, even if it created a danger, and in so doing approved TfL’s application for summary judgment.
At first instance, before His Honour Judge Knight, the Court also accepted this argument and granted TfL summary judgment. The Judge also granted summary judgment on LBH’s application, on the basis that LBH’s failure to sweep the area was a nonfeasance as, following the House of Lords’ majority decision in Stovin v Wise [1996], it did not give rise to a duty. His Honour Judge Knight however granted the Claimant permission to appeal.
In a strongly constituted Court of Appeal, including the Chancellor of the High Court and Lord Justice Aikens, Hughes LJ gave the leading judgment. In essence, he ruled that the decision in Goodes was not limited to snow and ice cases. The build up of dirt or detritus did not constitute a failure to repair/maintain the fabric of the highway.
The Claimant relied on the decision in Burnside v Emerson [1968] where the Defendant had been found responsible for a build up of surface water caused by a failure by the local authority to maintain the drainage system.
Hughes LJ however stated “the removal of surface lying material which creates a danger is not within the section.” (s.41(1) Highways Act 1980).He added “that this is the law might at first appear outdated, or anomalous, or unfortunate. It is easy to think that where a serious accident has occurred because a danger was not removed from the highway, the authority responsible for that highway ought to be liable.”
The drain cases are distinguishable, in that they require a duty to put and keep in repair the drainage system. If water built up on the surface of the road, and the drains were and had been properly maintained, there would be no breach of s.41. In the drain cases referred to, the fact was that the build up had been caused by a failure to maintain the drains that went to the breach of duty. Hughes LJ went on to remind the Court in his judgment that s.41 gives rise to an absolute duty in public law and, as such, highway authorities would be in breach of their public law duties if there was any build up of any substance on the surface of the carriageway. He considered that that was a matter for Parliament and not an area of law that should be developed by case law. It was noteworthy that, in the Goodes case, the law had been changed to include a duty placed upon highway authorities to clear snow and ice, but that duty had been restricted to those substances only.
So far as LBH were concerned, there could be issues on the pleaded case that the manner in which the carriageway had been swept created a trap, in that there had been a positive negligent act which left the road more dangerous than it would have been if nothing had been done. Also, the case as pleaded left it open to the Claimant to advance a genuine case of a sin of commission, in that the sweeper may have operated to push detritus into the area where the accident took place. Whilst there may be evidential problems in advancing such a case, they were matters that required to be explored at a full trial and as such the appeal was allowed.
Key points
- An application for summary judgment is appropriate where the defendant accepts that it should go forward on the claimant’s best pleaded case, despite attempts made by the claimant to have all the facts explored at trial.
- Highway authorities are not required to keep clear from the surface any build up of transient materials other than snow and ice pursuant to their duty under s.41 Highways Act.
- Authorities won’t avoid liability if surface debris results from a break up or the failure of the highway.
- Whilst most may consider the impact of Goodes to have been reversed by amendments to the Highways Act placing a duty on local authorities to clear snow and ice, it is still good law so far as there are other transient substances on the surface of the highway.
- The Court of Appeal emphatically rejected an attempt to extend the law and concluded that was a matter for Parliament, as indeed it had been the case following the decision in the Goodes case.
- An adverse finding in the Court of Appeal would have had a very significant impact on local authority budgets.
- It is clear the Court wanted to find for the Claimant, who had suffered a most unfortunate tragedy, however it was conceded that the law can create anomalies and a sympathetic judgment was not necessarily consistent with good legal principals.
- The Court was reminded of the absolute nature of s.41 and as such the potential burden placed on local authorities.