Department for Transport, Environment & the Regions v MacDonald Ltd & Ors [2006] EWCA Civ 1089

Case Nos: A2/2006/0944 & 0945[2006] EWCA Civ 1089
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
HH JUDGE SEYMOUR QC
HQ0403577/356
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 27 July 2006
Before
CHANCELLOR OF THE HIGH COURTLORD JUSTICE CARNWATHLORD JUSTICE MOSES
Between
DEPARTMENT FOR TRANSPORT, ENVIRONMENT & THE REGIONSAppellantsMOTT MACDONALD LTD1 st RespondentAMEY MOUCHEL LTD2 nd RespondentCOURNWALL COUNTY COUNCIL3 rd Respondent(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Nigel Wilkinson QC & William Hoskins (instructed by Treasury Solicitors) for AppellantsGeoffrey Brown (instructed by Hextalls LLP) for 1 st RespondentEdward Faulks QC (instructed by LGL and Handcock Caffin) for 2 nd& 3 rd Respondents
JudgmentLord Justice Carnwath :Background
[1]This is an appeal by the Department of Transport from the decision of Judge Seymour Q.C. on a preliminary issue in three consolidated cases arising out of similar accidents. In each case it was alleged that the accident was caused by standing water on the highway, attributable to the highway authority's failure to maintain the highway drains, in breach of its duty under section 41(1) of the Highways Act 1980.[2]The present proceedings are Part 20 claims by the highway authority against its maintaining agents. The highway authority had settled each of the claims with the original claimants, and sought to recover its outlay from the maintaining agents. They in turn took the point that there was no breach of section 41, in particular, on the grounds that, following the decision of the House of Lords in Goodes -v- East Sussex County Council [2000] 1 WLR 1356, section 41 did not encompass a duty to maintain the highway drains.[3]At first sight this seemed to me a remarkable contention. An effective drainage system is an intrinsic part of the design of a modern road, and like any other part of the road it needs to be properly maintained. As a matter of common sense, it is difficult to see why a statutory duty to maintain the road should exclude it. The contention is the more surprising against the background of a decision of this court (Burnside v Emerson [1968] 1 WLR 1490), which has stood without criticism for almost 40 years. That, if correct, confirms that the duty to repair does indeed include the drainage system, while acknowledging (as again seems common sense) that not every flood is evidence of a failure to maintain. That decision has never been expressly over-ruled, or even doubted. Indeed it was applied by this court as recently as 1999, in Thoburn v Northumberland CC (19.1.99 unreported - a similar case of an accident caused by water on the highway).[4]However, the contention succeeded before the judge, and has been vigorously advanced in this court. If correct, it clearly has great significance for highway authorities generally.

The preliminary issue

[5]With the consent of the parties and by order of Master Foster dated 22nd November 2005 the claims were listed for the trial of a preliminary issue. The issue followed a similar format in each case, asking whether “on the facts pleaded by the original Claimant” liability would have been established. The preliminary issue was tried by HH Judge Richard Seymour Q.C., sitting as a Judge of the Queen's Bench Division, on 10th and 11th April 2006. He held that in each of the claims the highway authority would not have been liable in law to the original Claimants, so that consequential Part 20 proceedings against the maintaining agents were dismissed.[6]Having reviewed the authorities in detail he concluded that Burnside had in effect been overruled by subsequent cases, and that:
“… it is now clear that the duties of a highway authority in respect of the roads for which it is responsible are confined to the repair and the keeping in repair of the surface of those roads” and that such a duty “… does not extend to dealing with obstructions which render the highway less commodious, but do not damage the surface”
He added that, even if the duty had been found to extend to the maintenance of drains: “I should in any event have found that the presence of water on a highway as a result of drains being blocked by silt, debris, or vegetation was not caused by a breach of that duty” (para 51-2).

The assumed facts

[7]It is important to start from an agreed understanding of the factual basis for the argument, both as to the physical characteristics of the drains in relation to the road, and as to the defects which are alleged to have caused the accident.[8]The formulation of the preliminary issue was not precise. Reference simply to the “facts pleaded” was unhelpful. For example, in the Mitchell claim the pleadings include general allegations unrelated to drainage, such as “failure to maintain and keep the road… safe for users…”, as well as more specific allegations in respect of the drainage system. They in turn included allegations of systemic failure (failure to maintain “any reasonably suitable system of drainage”), of physical disrepair (“allowing the drainage system… to fall into a bad state of repair”), and of more transient failures of everyday maintenance (allowing “such drainage as there was” to become “obstructed by silt, detritus, and vegetation…”).[9]The judge did not in terms attempt to resolve these ambiguities. However, he noted that Counsel for the Department had told him that:
“… it seemed that the cause of the presence of the water on the carriageway in each of the three cases with which I am concerned was the blockage by silt, debris and vegetation of the drains intended to serve the road.”
That seems to have been the factual basis on which he then proceeded, as appears from his alternative conclusion quoted above. The statement leaves open the important question whether the blockage was transient or longer-term. At our invitation Counsel before us agreed a more precise formulation of the issue, as follows:
“Question for the Court: Whether the Highway Authority would have been liable in law to the original claimants, in their actions upon the following assumption: …..that the accidents were caused by a dangerous accumulation of water on the surface of the highway, caused by the longstanding blockage of the highway drainage system by silt, debris or vegetation. (It is agreed by the parties that the above assumption does not bind any of the parties in the event of any subsequent trial).”
[10]We were also referred to evidence in the Mitchell case, which describes the form of the drains:
“… the central reserve drainage system… consisted of a number of gullies situated in the paved central reserve and located between two lines of safety fencing. The gullies lie immediately adjacent to the longitudinal slotted concrete drain. … these slotted drains, known by the manufacturer’s trade name of ACO….consist of a rectangular concrete section containing a circular void and into which surface water run-off is able to pass from the road surface via two rows of elongated holes from the upper surface to the circular void. The individual units connect together to form two continuous rows of holes at the surface and a continuous circular void below… The slotted concrete drain units connect to a catchpit (similar to a normal manhole but containing a sump to trap silt) allowing discharge of the surface water run-off which the drains collect.”
[11]There had also been an agreed statement by the experts in the Mitchell case, giving their view of the state of the drain and its effect:
“We are of the opinion that the central reserve slotted concrete channel had either not been maintained at all in the months prior to the accident or at best it had been inadequately maintained. Considerable vegetation was evident growing out of the slot drain at the time of the accident. We believe that this poor standard of maintenance of the drainage facilities offered by the central reserve slotted concrete channel would have seriously affected the efficient drainage of surface water from the carriageway, particularly at times of heavy rain…. At the time of the accident, from witness statements, it was raining or had been raining fairly heavily and accordingly we believe that it is very likely that due to the poor drainage maintenance, surface water remained on the carriageway to a greater depth than would have been the case with a properly maintained drainage system.”
[12]Mr Brown (for the respondents in the Mitchell case) accepts that for the purpose of the preliminary issue only we should proceed on the assumption that this statement is correct. I understand that as yet there is no similar evidence in the other cases, but no material differences were relied on in argument before us.[13]The central question is whether Burnside remains binding on us. However, as the argument developed, it became apparent that this conceals two main issues: i) The “surface” issue Whether, the authority’s statutory duty to maintain the highway applies only to the “surface” of the highway, a term, which, as I understand it, is used by the respondents to refer simply to the part of the surface used by traffic or pedestrians (“the traffic surface”); and accordingly does not extend to highway drains beneath or beyond the traffic surface, or in the central reservation (as in the Mitchell case); ii) The “repair” issue If there is a duty to maintain such highway drains, whether it requires only the repair of physical defects in the fabric of the drains, and does not extend to clearing blockages (as in this case).

The statute

[14]Section 41(1) of the Highways Act 1980 provides as follows:
“The authority who are for the time being the highway authority for a highway maintainable at the public’s expense are under a duty…. to maintain the highway.”
By section 329: “Maintenance” includes repair and “maintain” and “maintainable” are to be construed accordingly.[15]Section 58 provides a special defence:
“(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. ”
The section sets out matters to which the court is to have regard for the purpose of the defence (for example, “the character of the highway, and “the traffic which was reasonably to be expected to use it”).[16]Reference has also been made in argument to the specific provisions of the 1980 Act dealing with drainage. For example section 100 confers power on the authority (subject to payment of compensation) to “construct or lay, in the highway or in land adjoining or lying near to the highway, such drains as they consider necessary”; and “to scour, cleanse, and keep open all drains situated in the highway or in such land as aforesaid…” However, I do not understand it to be suggested that this specific provision is in itself inconsistent with a more general duty under section 41.[17]We have also been asked to note the contrast between maintenance duties in respect of such things as cattle grids (s 84) and road humps (s 90E), and powers in respect of such things as barriers (s 102). It is suggested that the distinction is at least illustrative of the limitation of the duty to repair to the surface of the highway. I say at once that, in an Act with as diverse a pedigree as the Highways Act, I see little value in detailed textual comparisons of that kind.

Burnside

[18]The Department’s case is indeed that both issues was settled by Burnside v Emerson [1968] 1 WLR 1490, which remains good law.[19]In Burnside an accident was caused by a car running into a pool of water in the road, and swinging into the path of a car coming in the opposite direction. The trial judge held the highway authority liable under the predecessor of section 41. He held that, although they had installed a good system of drainage, they had not operated it properly, and the resulting water on the highway constituted a danger due to their failure to maintain. This decision was upheld on appeal.[20]In view of the doubts now cast on the reasoning, it is necessary to consider the judgments in some detail. Lord Denning MR, giving the leading judgment, commented on the changes made by the Highways (Miscellaneous Provisions) Act 1961, which had abolished the previous rule exempting highway authority from liability for “non-feasance”. He summarised the resulting position:
“There is a duty on a highway authority to maintain the highway; and "maintain" includes repair. If it is out of repair, they fail in their duty: and if damage results, they may now be made liable unless they prove that they used all reasonable care.”
(p 1493 F-H)[21]There were three elements:
“First: The plaintiff must show that the road was in such a condition as to be dangerous for traffic… Second: The plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair the highway. In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements. When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain. When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is no evidence of a failure to maintain. Lindley J. said in 1880 in Burgess v. Northwich Local Board (1880) 6QBD 264, 276): "An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair." So I would say that an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain. We all know that in times of heavy rain our highways do from time to time get flooded. Leaves and debris and all sorts of things may be swept in and cause flooding for a time without any failure to repair at all. Third: If there is a failure to maintain, the highway authority is liable prima facie for any damage resulting therefrom. It can only escape liability if it proves that it took such care as in all the circumstances was reasonable: and in considering this question, the court will have regard to the various matters set out in section 1(3) of the Act of 1961.”
(p 1493H-1494H emphasis added. Section 1(3) was the predecessor of section 58(2) of the 1980 Act.) "An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair."[22]The highlighted passages draw the important distinction between transient dangers caused by the elements, which are not in themselves evidence of disrepair, and longer term problems which are.[23]I note in passing that in the old case referred to by Lord Denning, counsel seems to have had no difficulty with the concept that the authority had at least some duty in respect of drainage: “There is no authority whatever for indicting a parish in respect of a road being impassable by reason of water, unless of course the water was a consequence of neglect to cleanse ditches or some such omission of duty.” (argument in Burgess v. Northwich Local Board (1880) 6QBD 264, p 271-2)[24]Lord Denning’s examination of the evidence in Burnside case (commenting on the causes of the pool of water) provides a characteristically lively illustration of the difference between the transient and the systemic:
“The mere presence of this pool of water on that night does not by itself show a failure to maintain. It had been raining all day. The pool of water had not been very deep for very long. Mr. Bailey, a farmer, who drove along at 8 o'clock had had no difficulty. It had become deep at 9 o'clock. Later on, at 10 o'clock, the pool was there, but was going down. But the evidence did not rest merely on the presence of the pool of water. There was additional evidence which showed that this stretch of road was not kept properly drained. It was quite often flooded when there was rain. A bus-driver gave evidence. He had been going up and down the road for some years. He said the road was always flooded there after rain. Mr. Broughton, who had been chairman of the parish council for many years, said that in the old days, when there were lengthmen who walked this length of road, he used to complain to them, and they would scrape out the debris. But in recent years the lengthmen had been replaced by a gang who visited at longer intervals. He used to complain to the surveyor then when the road was flooded: but it took them a good deal longer to put it right. After this accident had occurred, the parish council themselves wrote to the local authority, saying: "At a recent parish meeting complaints were made regarding water lying on the main Nottingham/Melton road opposite the school and between the two gravel-pit hills. This is considered very dangerous and I was instructed to request you to deal with this hazard as soon as possible." To which the local authority simply said: "The points mentioned are being investigated." Yet, according to the evidence, nothing further was done.”
(p 1495B-E) "At a recent parish meeting complaints were made regarding water lying on the main Nottingham/Melton road opposite the school and between the two gravel-pit hills. This is considered very dangerous and I was instructed to request you to deal with this hazard as soon as possible."[25]He concluded by summarising the judge’s findings, which he approved:
“He found that although the system which the Nottinghamshire County Council had installed was a good system and would have been sufficient if it had been carried out, nevertheless their servants failed to operate this system properly. He said they failed in three ways: (i) by failing to secure that the drain was at the lowest point (it appears that there was a dip in the road at this point. A six-inch drain had been put in. But then the highway authority had raised the road two or three inches: and when they did so, the drain had not been put at the lowest point. It had been partly obstructed by the making of the road); (ii) by failing to keep the grips or gullies in such a condition that they would take the water from the road….; (iii) by failing to see that the ditch was properly cleaned out so that it would take the water from the gullies. I think these findings by the judge were borne out by the evidence, and show a failure to maintain. ”
(p 1495H-1496B)[26]Diplock LJ and Goff J agreed. Diplock LJ added a comment on the nature of the duty, which had been often cited:
“The duty of maintenance of a highway which was by s.38(1) of the Highways Act 1959, removed from the inhabitants at large of any area, and by s.44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. I take most of those words from the summing up of Blackburn J., in 1859 in R. -v- Inhabitants of High Holborn, "non-repair" has the converse meaning.”
Applying that to the case, he continued:
“Repair and maintenance thus include providing an adequate system of drainage for the road; and it was in this respect that the judge found that the Second Defendants, the highway authority, in this case had failed in their duty to maintain the highway. I think that, on the evidence, for the reasons given by Lord Denning M.R. he was entitled to make that finding.”
(p 1496H- 1497C)” As I understand it, the respondents accept the correctness of the statement of principle in the first passage, but not its application in the second passage to the case in hand.[27]It appears to be common ground that, if Burnside remains binding on us, both issues must be decided in the Department’s favour. The respondents also accept that they can only succeed by showing that the reasoning in Burnside “cannot stand” with that of the House of Lords (Young v Bristol Aeroplane Co Ltd [1944] KB 718, 725g). It would not be enough to show that the reasoning is now open to question in the light of Goodes; that would be a matter to be resolved by the House of Lords itself.

Subsequent cases

[28]The respondent’s case, accepted by the judge, rests on the combined effect of a sequence of decisions in this court and the House of Lords: i) Hereford and Worcester CC v Newman [1975] 1 WLR 901 (hedge and barbed wire fence crossing rural footpaths); ii) Haydon v Kent CC [1978] 1 QB 343 (snow and ice on an urban footpath); iii) Goodes v East Sussex County Council [2000] 1 WLR 1356 (snow and ice on a road); iv) Gorringe v Calderdale MBC [2004] 1 WLR 1057 (failure to provide an advance sign of a sharp crest in the road); v) Thompson v Hampshire CC [2004] EWCA Civ 1016 (an accident caused by tripping in a ditch hidden by grass).[29]It will be noticed that none of those cases was concerned with the maintenance of a highway drainage system, as in either Burnside or the present cases. The respondents’ case is built up from a sequence of statements of principle taken from those cases, which they say are inconsistent with the reasoning of Burnside.[30]Although the issues overlap to some extent, it is convenient to take them in turn.

The “surface” issue

[31]In support of their submission the respondents are able to refer to a number of judicial statements which define the duty to repair by reference to the “surface” of the road. It is necessary to see these in context.[32]The best starting-point is in the dissenting judgment of Lord Denning in Haydon -v- Kent County Council [1978] QB 343. An accident had been caused by impacted ice and snow on a path used by school-children. The majority of this court held the highway authority liable. Lord Denning M.R. dissented. The judgment is of particular significance in the present context, because it was approved in unusually emphatic terms by the House of Lords in Goodes (“completely convincing” – p 1360G per Lord Hoffmann).[33]Lord Denning noted that, although “maintenance” was defined as including “repair”, that did not imply a more extended meaning: it “only means that it embraces repair without necessarily embracing anything else” (p 356G). He then discussed the “key words” of the statutory provision, starting with the word “repair”: “‘Repair’ means making good defects in the surface of the highway itself so as to make it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. That is the combined effect of the statements of Blackburn J. in Reg. v. Inhabitants of High Halden (1859) 1 F. & F. 678; of Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 and Cairns L.J. in Worcestershire County Council v. Newman [1975] 1 W.L.R. 901, 911. Thus deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface make all the highways ‘out of repair’.” (p357A-B emphasis added)[34]Later he commented:
“In my opinion, therefore, the duty in Section 44 of the Act of 1959 "to maintain the highway" is the equivalent of the duty at common law and in the Act of 1935 "to repair and keep in repair". It means that whenever there is a defect in the surface of a highway, the highway authority is under a duty to repair it. But it does not mean that the highway authority is under a duty to remove snow or ice whenever it makes the highway slippery or dangerous. I adhere therefore to the view I expressed in Burnside -v- Emerson [1968] 1 WLR 1490, 1494: ‘ … an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain’.”
(p 359H-360B emphasis added)[35]I have highlighted the references to the “surface” of the highway. However, it is immediately apparent that, far from throwing any doubt on Burnside, Lord Denning felt able to quote without qualification from both his own judgment and that of Diplock LJ in that case, thereby clearly implying that he saw no inconsistency between the two cases. The reference to a duty to repair “the surface of the highway” is readily understandable in the context of the case, since that was all that was in issue. The contrast was between the repair of the surface, and the removal of snow or ice from the surface. The question of repair of drains, or of other parts of the highway structure, was not in issue.[36]For the derivation of the reference to “surface” one must look to the three cases mentioned by Lord Denning. It does not appear in Burnside itself. Nor is it found in the statement of Blackburn J in R v Inhabitants of High Halden (1959 1 F&F 678, which refers simply to repairing “the road”. As has been seen, this was also the source relied on by Diplock LJ in his formulation of the duty in Burnside. The report is very short. The road was “an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances”. The evidence was that in wet weather and in the winter months it was “very bad, soft and in an impassable state” with deep ruts which “formed in fact the watercourses of the road”. Blackburn J’s direction to the jury was that the parish was not bound to make the road hard – “… but they were bound in some way, by stone or other hard substances, if necessary, to put the road in such repair so as to be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year.” (emphasis added) Not surprisingly, a guilty verdict was returned.[37]It appears therefore that the only source for Lord Denning’s use of the word “surface” was the third reference given by him: the judgment of Cairns LJ in Hereford case. The significance of this case, in the respondents’ submission, is that it post-dated Burnside and explains what they say is Lord Denning’s shift of approach. The footpaths in that case had been rendered practically impassable by dense vegetation growing on their surfaces, and in one case by a barbed wire fence crossing the path. The justices had held that they were “out of repair” and made orders requiring the county council to put them in proper repair. The majority of the Court of Appeal upheld that decision in respect of the vegetation growing out of the surface of the path (not simply overhanging it), but not in respect of the fence. A short passage in the judgment of Cairns LJ is relevant. Having discussed various authorities on the scope of the word “repair” (to which it will be necessary to return in more detail in relation to that issue) he said:
“I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way. Not every defect in the surface would constitute being out of repair—e.g. an icy road would not in my view be out of repair. But if the surface is in a proper condition I do not think it can ever be said that the highway is out of repair.”
(p 911B-C) Two points may be made about that passage. First, the reference to the surface makes good sense in the context of the case, since that was what in issue. Secondly, no authority was cited for any more general rule limiting the maintenance duty to the surface of the road. In particular, there was no reference to Burnside itself, which would have been binding authority to the contrary. Properly understood the judgment provides no support for the respondent’s argument.[38]In Goodes, the accident had been caused by the claimant’s car skidding on a patch of black ice. There had been a failure to salt or grit the road, despite a weather forecast of freezing conditions. The Court of Appeal found that the highway authority had failed to remove the ice from the surface of the road within a reasonable time, and that this constituted a failure to maintain the highway pursuant to section 41(1). The House of Lords unanimously reversed that decision. In the leading speech, Lord Hoffmann reviewed the law both before and since the 1959 Act, referring with approval to Diplock LJ’s explanation in Burnside of the scope of the duty to maintain (although without any specific reference to his comments on drainage). He referred with approval to the judgment in Haydon,which he described as establishing that the section 41 duty was concerned “only with keeping the fabric in repair”. In the other substantive speech, Lord Clyde spoke of the obligation as relating to “the physical or structural condition of the highway”, and adopted Diplock LJ’s formulation of the duty in Burnside (p 1369B). But he added:
“In the ordinary use of language I would not describe the removal of ice from the surface of the road as maintaining the highway. By the highway is meant the stretch of land over which people may pass rather than the rights of passage which they may enjoy. The removal of ice may be maintaining of the use of the highway or facilitating or easing the access which the highway provides, but it is not a maintaining of the highway itself.”
(p 1369D, emphasis added)[39]Mr Brown argues that Lord Hoffmann’s use of the word “fabric” is to be taken as having the same meaning as the word “surface” as used in Haydon, which Lord Hoffmann specifically approved. Similarly, Lord Clyde’s reference to “physical and structural condition” must be taken as qualified by his definition of the highway as the land “over which people may pass”.[40]I cannot agree. The references to “fabric” and “structure” were clearly deliberate, being derived in both cases from the speech of Lord Robertson in Dublin United Tramways Ltd v Fitzgerald [1903] AC 99, 109-110. The relevant passage reads:
“What they have got to keep in good condition is the structure or fabric of the roadway. But the surface is part of that structure or fabric, and, as this is a roadway, a very important part…”
Thus the duty is not confined to the “surface” of the road; the surface is simply treated as one important part of what is to be maintained, which is the “structure and fabric of the roadway”.[41]In Gorringe the alleged liability arose from the authority’s failure to provide a “Slow” sign at the crest of a country road. It was held that the section 41 duty did not extend to the provision of information by means of street furniture or painted signs. Burnside was not mentioned in terms, and nothing in the speeches appears to throw any doubt on its authority on this issue. The respondents rely on a passage in the speech of Lord Brown: “With regard to the physical state of the highway itself, of course, the legislation has since 1961 placed the responsibility for its maintenance upon the Highway Authority... This duty, moreover, is actionable as such so as to give rise to a private law claim for damages. Road users, therefore, are entitled to rely upon the state of the road's surface and accordingly the primary liability for any loss resulting from a breach of the section 41 duty rests on the authority. Road users are not, however, entitled to rely upon the Highway Authority with regard to the various other hazards of road use. They are not entitled to suppose that their journeys will be free from these or that the need for care will generally be highlighted so as to protect them from their own negligence.” (para 101, emphasis added) This passage does not assist the respondents. It was clearly intended as a general statement of the duty, not a definitive statement of its precise limits.[42]Finally, in Thompson v Hampshire [2004] EWCA Civ 1016, the Court of Appeal considered a case where a claimant fell into a ditch next to a path. The verge on which the claimant had been walking when she fell was part of the highway and was the responsibility of the highway authority. The claimant’s case was that the fault of the highway authority lay in the unsafe juxtaposition of path and ditch. It was held, following Goodes and Gorringe, that the highway authority was not responsible, under its statutory duty to maintain the highway, for the highway’s layout.[43]Far from throwing any doubt on Burnside, Rix LJ, giving the leading judgment, referred to it as the point “where the modern authorities may be said to start”. He summarised its effect without adverse comment:
“A car crashed as a result of running into a pool of storm water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system which had become blocked”
. He also noted the distinction drawn in the judgments between “a permanent danger due to want of repair and a merely transient danger due to the elements: only the former was actionable.” (para [19]).[44]The passage on which the respondents rely comes later: “In one sense that dangerous layout was concerned with the “structure” of the road, a word deriving from Diplock LJ’s formula in Burnside’s case This appears to be mistake, for which I must share responsibility. The word “structure” does not in fact appear in Diplock LJ’s judgment in Burnside. As explained above, its source is much older dating back at least to the Dublin case in 1903. and often repeated since: but it is by now clear, if it was ever in doubt, that this reference to structure is to nothing more than the physical surface of a highway (emphasis supplied). The duty is not a general duty to ensure, subject to the Section 58 defence, that a highway is not dangerous to traffic, but no more than a duty to repair the structure of the highway if it is out of repair (see Goodes’ case and Gorringe’s case).” (para [29] emphasis added)[45]Having been a party to that case, I can say with confidence that there was no intention to treat Burnside as having been in effect overruled. In retrospect, the phrase “nothing more than the physical surface” may have been too restrictively stated. However, it was not necessary to consider the precise limits of the duty to maintain, and the question of repairing drains was not before the court.[46]Accordingly, the cases relied on by the respondents, properly understood, do not support the proposition that the duty is confined to the traffic surface of the road. Burnside is not inconsistent with those authorities, and we remain bound by it.

The repair issue

[47]Again the respondents’ argument starts from Lord Denning’s judgment in Haydon, where, it is said, he in effect equated maintenance with repair. The same point was picked up by Lord Hoffmann in Goodes, when he rejected the contention that “maintenance” in the 1959 Act was intended to – “… amend the previous law by extending the duties of highway authorities from maintenance of the fabric to other forms of maintenance necessary to prevent the highway from being dangerous to the public” (p 1359H).[48]They then rely on Lord Denning’s definition of repair, in substance adopted in Goodes,as being to “make good defects”in the surface or fabric of the road. It is argued that the expression “making good defects” refers to remedying physical damage of some kind, rather than simply restoring to working order. The same approach is found in other legal contexts; in Quick v Taff-Ely BC [1986] QB 809, 818D, Dillon LJ said: “… disrepair is related to the physical condition of whatever has to be repaired and not questions of lack of amenity or inefficiency”.[49]Reliance is again placed on the judgment of Cairns LJ in the Hereford case. On this aspect he said:
“In my opinion the word ‘repair’ has to be considered as an ordinary English word whose meaning depends on the context in which it is used. I do not doubt the correctness of the statement of Lord Porter in London and Northern Eastern Railway Co v Berriman [1946] AC 278 at 307 that the word contains ‘some suggestion of putting right that which is wrong’. But that does not mean that every putting right of that which is wrong is a repair: if clothes were too dirty to be fit to wear the cleaning of them would not be called repair; if the oil in the sump of a car were at a dangerously low level, putting in oil would not be called repair.”
[50]The court had been referred to a case relating to a lessor’s duty of repair: Bishop v Consolidated London Properties Ltd [1933] All ER 963, 968, in which du Parcq LJ had treated the duty as including the removal of blockages from rainwater downpipes. Cairns LJ said:
“I express no opinion as to the correctness of the decision that the presence of a pigeon in a downfall pipe constituted a breach of a landlord’s duty to repair, but I would respectfully suggest that when Du Parcq LJ said ‘to repair after all merely means to prepare or make fit again to perform its function: it means to put in order’ he was giving an unduly extended meaning to the word ‘repair’. To wind up a watch that has stopped and to adjust its hands to the right time is to make it fit again to perform its function, to put it in order. Nobody would describe such an operation as repairing the watch. In relation to a highway I am of opinion that in ordinary speech nobody would speak of the mere removal of an obstruction from the highway as being in itself a repair. I respectfully agree with Lord Widgery CJ in saying ([1974] 2 All ER at 873, [1974] 1 WLR at 944) that if a builder chose to dump tons of rubble on a footpath thus rendering it impassable, it would be an abuse of language to say that the highway authority had allowed the footpath to become out of repair. It is I think striking that in all the Highways Acts from 1835 to 1959 repair and removal of obstructions are separately dealt with…”
(p 910C-911C) He concluded (in the passage already quoted):
“I consider that a highway can only be said to be out of repair if the surface of it is defective or disturbed in some way.”
[51]I would make two comments on those authorities. First, I do not understand either Lord Denning or Lord Hoffmann to have been saying that one could ignore the statutory language, and treat the section as if it referred only to “repair”, without any mention of “maintenance”. Their purpose was only to rebut the suggestion that the word could be read without regard to its pre-1959 history. The Hereford case perhaps illustrates how the words work together. “Repair” is not an obvious word to describe the removal of vegetation from a footpath, although it is a fair description of the process of making good the surface after removal; but the term “maintenance” (or indeed “making good defects”) is perfectly apt for the combined operation. Secondly, Cairns LJ’s watch-winding example does not assist the respondents’ case. Winding-up a watch is not “repair” because it is an ordinary part of the watch’s operation. However, if the watch has stopped because of an accumulation of dust in the machinery, “repair” is a suitable word to describe the process of putting it back into working order, even though there has been no physical damage to the “fabric”. Similarly, on the facts of Burnside,Diplock LJ clearly regarded the clearing of a blockage in the highway drains as coming within his definition of putting in repair.[52]Finally, the respondents draw attention to Lord Hoffmann’s comments on the “absolute nature” of the duty under section 41, and the practical implications for the distinction between “a duty to maintain the fabric of the road in good repair” and “a duty to prevent or remove the formation or accumulation of ice and snow”: “In the case of the duty to repair, the road either satisfies the objective test formulated by Diplock L.J. in Burnside -v- Emerson [1968] 1 WLR 1490, 1497 or it does not. The requirements of that objective test may become more exacting with the passing of the years, but the Court (or in former times the jury) can examine the highway and decide whether it meets the test or not…. … but an absolute duty to keep the highway free of ice would be an altogether different matter. No highway authority could avoid being from time to time in breach of its duty, which would apply not merely to fast carriage roads but to all highways, including pavements and footpaths…."(1366 A-E).[53]The latter comment to my mind does no more than echo the words of Lord Denning in Burnside, and repeated by him in Haydon:
“…an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain.”
It throws no doubt on the actual decision in Burnside. It does not assist the respondents in relation to the “longstanding” blockage which is the basis of the assumed facts in this case.[54]To conclude, the engineers in the Mitchell case said that the flooding was due to the “poor drainage maintenance”. That is a natural use of the word “maintenance”. There is nothing in the authorities to which we have been referred to suggest that it was not an equally natural use of the word in the context of the pre-1959 law. Again, on this issue I see nothing to throw any doubt on that aspect of the reasoning in Burnside, and we are bound by it.

The wider picture

[55]Finally, I make two comments on the wider implications of the issues in this case. First, it was suggested by Mr Faulks that the repairing duty was to be narrowly construed to give effect to Parliament’s presumed intentions. Reference was made to Gorringe where Lord Scott spoke of the “fairly narrow scope of the section 41(1) duty” (p 1072). In the present context I find that submission difficult to reconcile with the Parliamentary history. The decision in Burnside has stood without criticism for many years, and Parliament has shown no interest in amending or clarifying the law. By contrast the actual decision in Goodes was quickly reversed. Section 111 of the Railways and Transport Safety Act 2003 added to section 41(1) of the 1980 Act a duty - “to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.” If the legislature had wished to revisit Burnside this would have been a good opportunity to do so. Conversely, if the respondents are correct, the law is left with the anomaly that there is a cause of action for reasonably preventable hazards caused by ice or snow, but not by flooding.[56]Secondly, any wider examination of the scope of the duty would need to take account of aspects other than drainage, although these were not gone into in argument before us. For example, it has long been accepted that a retaining wall may be within the duty to maintain, so far as it supports the highway: see Halsbury’s Laws 4th Ed Vol 21 Highways para 281. It is there stated that “what is included in the highway is a question of fact”. It is difficult to see how that line of authority can stand with the contention that only the traffic surface of the road is protected by the duty.[57]Another striking example cited in Halsbury was a House of Lords case, which was not cited to us and seems to have attracted surprisingly little attention in the more recent cases since then (although it is discussed in detail in Sauvain, Highway Law 3rd Ed para 4-53). Sandgate UDC v Kent CC (1898) 79 LT 425 concerned an arbitration award relating to responsibilities for the cost of maintaining a so-called “Esplanade” adjoining the highway, and a sea-wall and groynes which had been built to protect it from inundation. The statute (Local Government Act 1888 s 11(2)) enabled the highway authority to recover from the county council a contribution towards the cost of “maintenance and repair” of the highway. Lord Halsbury LC speech (p 427) contains a powerful statement of the scope of the highway authority’s duties, which sits uneasily with some of the respondents’ submissions in this case.[58]A distinction had been drawn by the arbitrator between works which were part of the road “strictly speaking”, and that part of the works which was “so necessary to the maintenance of the main road, that unless the construction was there the main road might be washed away”. Lord Halsbury said:
“It was argued before the arbitrator that in point of law the expenses, as regards that part, were not recoverable because it was not part of the main road. To my mind that contention is absurd. Is it common sense to say that where the obligation is to maintain the road and keep it in repair, you can by neglect, allow that duty to be so disregarded that in time the road may be washed away, so that your liability or obligation ceases? Such a proposition is, to my mind, absolutely monstrous. The obligation at common law, and the same obligations have been handed on to the various bodies which in turn have received by statute the obligations and duties in respect of roads, is absolute, that they must keep in repair the roads in their parish Can anything be more clear than this, that the obligation is absolute in the first instance on the proper body whoever it be? … Then the proposition appears to be this, that if you take a main road, not merely the via trita, but that part of it which is said to be dedicated to the public, your jurisdiction must be limited to, and does not go an inch beyond that which is the highway. If that be so, if you want to cut a gutter to prevent the road from being flooded, or to take a culvert under it, where is your culvert to start? Have you no jurisdiction to dig a hole to allow the water to go through the culvert, so as to preserve the road? The truth is that you might put forward half a dozen hypotheses to show that such a construction of the law would reduce the whole thing to an absurdity, and render the administration of the road authority absolutely impossible I have no hesitation in saying that, assuming a thing to be necessary for the preservation of the road, and assuming that the local authority is under obligation to keep up the road, the law of England is that you shall keep up that road by whatever means are appropriate and necessary to do it. ”
[59]Later, dealing with the repair of the groynes, he specifically rebutted the contention that the word “maintenance” had no independent meaning:
“Then the proposition is this. You cannot do anything of this sort to maintain the road; you must allow it to go out of repair each year, although that would involve extraordinary and unnecessary expense to the parish or local body, whatever it might be; you must do that because your only power is to repair the road. In that argument I think that the word ‘maintenance’ appears to have escaped the attention of those so arguing: the maintenance of the road is quite as much a part of the duty as the ‘repair’…”
[60]It is not perhaps surprising that this authority was not cited in Goodes since the subject matter was quite different. However, it would clearly need to be taken into account, if the present House of Lords were to be persuaded that there is any remaining uncertainty in this are of the law such as to require their further attention.

Conclusion

[61]For these reasons, I am satisfied that Burnside remains good law, and that we are bound by it. The judge was wrong to hold otherwise. I would allow the appeal, and hold that the preliminary issue (as now formulated) must be answered in the affirmative. Lord Justice Moses :[62]I agree.

Chancellor of the High Court :

[63]I also agree.

Cited in 4 later judgments