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SCOPE OF HIGHWAY AUTHORITIES'
DUTY TO MAINTAIN
UNDER SECTION 41(1) HIGHWAYS ACT 1980
1. Section 41(1) of the Highways Act 1980 imposes upon a highway authority a duty to maintain the highway.Section 329 states that “ maintenance” includes repair and “maintain” and “maintainable”are to be construed accordingly.Where the condition of the highway is said to have caused an accident, section 41(1) is therefore potentially in play.Two cases directly concerning the scope of the section have reached the House of Lords in recent years. Prior to those decisions, Haydon -v- Kent County Council [1978] 1 QB 343 had represented the law since 1977. In Goodes -v- East Sussex County Council [2000] 1 WLR 1356 the House of Lords overruled Haydon and upheld the dissenting judgment of Lord Denning MR in that case to the effect that the duties of a highway authority under Section 41(1) did not include preventing the formation of snow and ice upon the surface of the highway. The specific effect of the decision in Goodes has now been reversed by statute.Since 31 October 2003,a new Section 41(1A), inserted by Section 111 of the Railways and Transport Safety Act 2003, has imposed an express duty on highway authorities to ensure so far as is reasonably practicable that safe passage along a highway is not endangered by snow or ice.
2. In Gorringe -v- Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 the House of Lords returned to Section 41(1) and held that the ambit of the duty did not include the provision of appropriate information by means of street furniture or painted signs.The duty to maintain was no more than a duty to repair and keep in repair the highway and that did not include a duty in relation to any structures ancillary to the use of a highway.
3. The question that has now arisen is whether the duty under Section 41(1) includes a duty to maintain a reasonable and effective drainage system to the highway. In the light of the number of accidents which are said to arise as a result of excessive water being found upon the carriageway this point has as much practical significance as the point that arose in Goodes. A straightforward claim in negligence will not usually lie against a highway authority. Unless the Claimant is able to point to a particular danger created by the authority, his natural recourse must lie under Section 41(1). The point has now been decided at first instance in the High Court by His Honour Judge Richard Seymour QC sitting as a Deputy Judge. On 11th April 2006 he gave judgment on a preliminary point in three cases. He decided that the duty under Section 41(1) did not include a duty to provide an adequate or effective system of drainage to the highway. In so doing he did not follow the decision of the Court of Appeal in Burnside -v- Emerson [1968] 1 WLR 1490, a case directly in point. The Judge considered that Burnside could not stand with the reasoning of the House of Lords in Goodes and Gorringe and so felt free to depart from it. He gave permission to appeal and the issue is now on its way to the Court of Appeal where an expedited hearing is scheduled for mid July.
4. What are the main arguments? The principal argument for the narrower construction is based on the language adopted by Lord Denning MR in Haydon,which persistently invoked the surface of the highway as being that which attracted the operation of the maintenance obligation. That maintenance obligation was a duty to repair and keep in repair.H.H.Honour Judge Seymour Q.C. held that that emphasis on the surface was followed in both Goodes and Gorringe and operated so as to exclude the drainage system from the ambit of the duty.
5. The alternative argument emphasises that Lord Denning MR was a member of the Court in Burnside -v- Emerson which decided that drains came within the ambit of the Section 41 duty. Burnside -v- Emerson features both in Haydon and in Goodes without any suggestion that the decision was wrong or needed to be reconsidered. In Goodes and Gorringe, although there were several references to the surface of the highway, there were also references to the physical and structural condition of the highway which might be thought to include the drainage system.
6. Whatever the Court of Appeal makes of the arguments, it seems difficult to suppose that the ultimate position will be that highway authorities have no duty to provide or maintain a satisfactory drainage system to the highway.Statutory amendment reversed the effect of Goodes. However, as with Goodes, any such amendment would not be retrospective in its operation so that there would be an unfortunate minority of claimants who would not benefit from it.
19 June 2006
WILLIAM HOSKINS
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