Highways – Duty to maintain – Section 41 of Highways Act 1980 – Appellant’s husband killed in motorcycle accident on access splay forming part of highway – Allegation that accident caused by skidding on accumulated loose debris – Whether removal of surface debris falling within statutory duty of first respondent highway authority under section 41 – Whether arguable case against second respondent local council for negligence in sweeping road – Claims struck out – Appeal allowed in respect of claim against second respondent
In April 2006, the appellant’s husband suffered a fatal injury in a fall from his motorcycle when it skidded as he exited a slip road from a public car park off the A4 urban dual carriageway at Brentford. In proceedings brought against the first respondent highway authority and the second respondent local council under the Fatal Accidents Act 1976, the appellant alleged that the accident had been caused by an unsafe accumulation of loose gravel and debris on a tarmac splay at the junction of the slip road with the highway.
The appellant contended that: (i) the first respondent was liable for breach of its statutory duty to maintain the highway, of which the splay formed part, under section 41 of the Highways Act 1980; and (ii) the second respondents, which periodically carried out road cleaning or sweeping, were liable in common law negligence. The appellant relied on evidence that the second respondents periodically swept alongside the channels at the kerbs and the central reservation, but that the road-sweeping machines did not divert from a straight line to sweep the tarmac forming the splay. She argued that, although the second respondents were under no common law duty to act, once they had decided to sweep the road they were obliged to do so carefully but had instead done so negligently so as to cause or permit a long-term build-up of material on the road surface; the case was therefore not one of omission but rather of a careless act that had foreseeably occasioned harm.
The claim against the first respondent was struck out on the ground that the duty to maintain did not extend to a duty to remove surface-lying material, obstructions or spillages, irrespective of whether they were dangerous. The claim against the second respondents was also struck out. The appellant appealed.
Held: The appeal was allowed in part; the striking out of the claim against the first respondent was upheld but the claim against the second respondents was reinstated.
(1) Under established authority, a highway authority’s duty to maintain did not extend to removing surface-lying material, obstructions or spillages, irrespective of whether they presented a danger: Haydon v Kent County Council [1978] QB 343 and Goodes v East Sussex County Council [2000] 1 WLR 1356 applied; Burnside v Emerson [1968] 1 WLR 1490 and Mott McDonald Ltd v Department of Transport [2006] EWCA Civ 1089; [2006] 1 WLR 3356 distinguished. A highway authority’s duty to maintain under section 41 of the 1980 Act was a duty to maintain the fabric of the road, including its substructure such as drains. The removal of dangerous surface-lying material did not fall within the section. The fact that section 150 imposed on highway authorities a separate duty to remove obstructions, in terms that gave rise to no civil right of action for breach, underlined the fact that section 41 did not embrace such an obligation. Although that position might at first appear outdated, anomalous or unfortunate, the reason for it stemmed from a combination of the historical development of the duty to maintain highways and the extensive consequences that would result from an absolute duty on the highway authority, and through it the taxpayer, to remove all surface-lying material from all highways, from motorways to country footpaths. It was relevant in that regard that although a highway authority had a defence to an action for breach of their duty where they could show that they had taken reasonable care, that defence applied only where a claimant sought damages for breach of the duty and did not limit the absolute duty of the highway authority, which remained absolutely bound, as a matter of public law enforceable by public law remedies, to maintain the highway without any qualification. Although there might be a policy case for altering the duty to maintain to a qualified, rather than an absolute, duty and then extending it to surface material, that was a matter for parliament, not the courts. The appellant’s action against the first respondent had no prospect of succeeding and had properly been struck out.
(2) In so far as the appellant’s complaint against the second respondents was simply their failure to sweep the splay, that appeared to be a complaint of omission; the complaint was not that the second respondents had made matters worse by their sweeping but that they had omitted one section of the road. That was no different from a contention that the second respondents were under a positive duty to do something, which was not arguable: Stovin v Wise [1996] 3 WLR 388 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057 considered. However, it should be open to the appellant to argue that the cleaning of the road generally, with the particular exception of the splay, created a trap, such that there had been a positive negligent act that had left the road more dangerous than it would have been had nothing been done. Further, the appellant’s pleaded case left it open to advance a genuine sin of commission in that, by sweeping along the kerb line only, even when the sweeper was alongside the splay, the sweeper might have pushed the material complained of into the splay. The appellant should not be prevented from advancing either of those cases at trial.
Andrew Prynne QC and Paul Kilcoyne (instructed by McKeowns, of St Albans) appeared for the appellant; Adam Weitzman (instructed by Kennedys Law LLP, of Chelmsford) appeared for the first respondent; Quintin Tudor-Evans (instructed by Watmores) appeared for the second respondents.
Sally Dobson, barrister
