Maintenance of highway — Standing water caused by blocked drains Appellant’s department settling claims and seeking indemnity from maintaining agents — Section 41 of Highways Act 1980 — Whether duty to maintain extending to highway drains — Whether duty requiring clearing of blockages — Appeal allowed
The appellant’s department settled various claims brought against it in respect of accidents caused by standing water on the roads. In each case, the claimants had relied upon a breach of the department’s duty to maintain the highway, pursuant to section 41(1) of the Highways Act 1980. The appellant’s department brought proceedings under CPR 20 to recover its outlay from its maintaining agents, the respondents. The latter contended that the section 41 duty did not encompass a duty to maintain the highway drains and that, accordingly, the appellant’s department had not been liable and was not entitled to recover from the respondents.
A preliminary issue was tried as to the extent of the section 41 duty, on the assumption that the standing water was the result of long-standing blockages of the highway drains by silt, debris and vegetation. The judge held that the duty was confined to keeping the road surface in repair and did not extend to obstructions that, although they rendered the highway less commodious, did not damage its surface. He considered that Burnside v Emerson [1968] 1 WLR 1490, which was the authority for the proposition that the duty to repair included the drainage system, had been overruled by subsequent cases.
On the appellant’s appeal against that decision, an issue arose as to whether Burnside remained binding on the court and, in particular whether: (i) the duty applied only to the surface of the highway; and (ii) if it extended to highway drains beneath or beyond the traffic surface, it required the clearing of blockages or was confined to the repair of physical defects in the fabric of the drains.
Held: The appeal was allowed.
(1) The duty to maintain the highway was not confined to the surface of the road. The duty was to maintain the structure and fabric of the roadway, and the surface was treated as an important part of that. Burnside was not inconsistent with the later authorities, and remained binding: Hereford and Worcester County Council v Newman [1975] 1 WLR 901, Haydon v Kent County Council [1978] QB 343, Goodes v East Sussex County Council [2001] 1 WLR 1356, Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057 and Thompson v Hampshire County Council [2004] EWCA Civ 1016 considered.
(2) It was impossible to ignore the statutory language and treat section 41 as though it referred only to “repair” without any mention of maintenance: Hereford and Goodes considered. Nor was a narrow interpretation of the duty justified. Accordingly, the section 41 duty did extend to clearing blockages.
Nigel Wilkinson QC and William Hoskins (instructed by the Treasury Solicitor) appeared for the appellant; Geoffrey Brown (instructed by Hextalls LLP) appeared for the first respondent; Edward Faulks QC (instructed by Barlow Lyde & Gilbert) appeared for the second and third respondents.
Sally Dobson, barrister
