Nicholas Heathcote Williams and Quintin Tudor-Evans in important High Court case on the Highway Authority's duties under section 41 of the Highways Act 1980
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
CENTRAL OFFICE
Claim No. HQ02X02495
B E T W E E N:
RICHARD JOHN MITCHELL
Claimant
-and-
DEPARTMENT FOR TRANSPORT ENVIRONMENT AND THE REGIONS
Defendant/Part 20 Claimant
-and-
MOTT MACDONALD LIMITED
Part 20 Defendant
Claim No. HQ0403576/7
B E T W E E N:
DEPARTMENT FOR TRANSPORT ENVIRONMENT AND THE REGIONS
Claimant
-and-
MOTT MACDONALD LIMITED
First Defendant/Part 20 Claimant
-and-
AMEY MOUCHEL LIMITED
Second Defendant/First Part 20 Defendant
-and-
CORNWALL COUNTY COUNCIL
Second Part 20 Defendant
_____________________________________________________
NOTE
_____________________________________________________
FACTS
On 16 August 1999, PC Mitchell sustained severe injury as a result of losing control of his Police car on water on the A3 in Surrey.
He sued the Department of Transport (“the DTER”) as highway authority for failing to maintain the drainage system serving the highway.
The DTER settled his claim for £1.35 million, but pursued proceedings for indemnity or contribution against its highway agent, Mott MacDonald (“Mott”).
On 8 November 1998, Miss Packer sustained serious injury as a result of losing control of her car on water on the A38 in Cornwall.
She sued the DTER as highway authority for failing to maintain the drainage system serving that highway.
The DTER settled her claim for £250,000.
On 21 September 2000, Mr Hardie sustained minor injury as a result of losing control of his car on water at the same place on the A38.
He intimated a claim against the DTER as highway authority for failing to maintain the drainage system serving the highway.
The DTER settled his claim for £2,666.
The DTER brought proceedings for indemnity or contribution in respect of the Packer and Hardie settlements against its highway agent, Mott, and the highway contractor, Amey Mouchel (“Amey”). Mott in turn brought Part 20 proceedings for indemnity or contribution against Amey and Cornwall County Council (“Cornwall”).
In the three actions, Mott, Amey and Cornwall all contended that the DTER could not as a matter of law have been liable to the original claimants and consequently was not entitled to an indemnity or contribution in respect of its settlements with the original claimants.
The Court ordered a trial of this contention as a preliminary issue.
LAW
A highway authority for a highway maintainable at public expense has always been capable of being liable to individuals who suffer injury as a result of its misfeasance but historically had no liability to individuals who suffered injury as a result of its non-feasance in the maintenance of the highway.
Non-feasance was given a wide meaning, see the decision of the Court of Appeal in Burton v West Suffolk County Council [1960] 2 All ER 26.
That immunity from civil liability for non-feasance was abrogated by the Highways (Miscellaneous Provisions) Act 1961, which made the highway authority strictly liable for non-feasance of its duty to maintain the highway under what is now section 41 of the Highways Act 1980, unless the highway authority can make out a specific statutory defence under what is now Section 58 of the Highways Act 1980.
In Burnside in 1968, the Court of Appeal held that the highway authority’s duty to maintain the highway under what is now section 41 of the Highways Act 1980 included a duty to maintain the drainage system serving the highway so as to deal with flooding on the surface of the highway.
But in Goodes in 2000, the House of Lords held that the duty to maintain the highway under Section 41 did not extend to a duty to deal with snow or ice on the surface of the highway.
As a result of the decision in Goodes, Parliament amended Section 41 of the Highways Act 1980 with effect from 31 October 2003 so as to place a specific duty on the highway authority to deal so far as reasonably practicable with snow and ice.
THE ISSUE
At the trial of a preliminary issue on 10 & 11 April 2006, the DTER argued that its potential liability to the original claimants had been under Section 41 of the Highways Act 1980, as interpreted by the Court of Appeal in Burnside (but conceded that it could not have been liable in common law negligence, in the light of the decisions of the House of Lords in Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 and the decision of the Court of Appeal in Sandhar v DTER [2005] 1 WLR 1632).
Mott, Amey and Cornwall argued that the decision of the Court of Appeal in Burnside and cases following it, such as Thoburn v Northumberland County Council [1999], had been implicitly overruled by the subsequent decisions of the House of Lords in Goodes and Gorringe, that this was reflected in the judgment of the Court of Appeal in Thompson v Hampshire County Council [2004] EWCA Civ 1016, and that (subject only to the specific statutory amendment w.e.f. 31 October 2003 regarding snow and ice) a highway authority’s duty to maintain the highway under Section 41 of the Highways Act 1980 is confined to maintaining the physical surface of the highway itself and does not extend to dealing with a substance, such as water, if it is merely lying on the surface of the highway and its presence is unrelated to damage to the surface of the highway.
THE DECISION
HH Judge Seymour QC sitting as a Deputy High Court Judge accepted Mott, Amey and Cornwall’s submissions, and accordingly dismissed all the DTER’s claims and all the Part 20 proceedings and ordered the DTER to pay the costs of all the Defendants and Part 20 Defendants.
However, in view of the importance of the issue, he gave the DTER permission to appeal to the Court of Appeal.
COMMENT
On the basis of this decision - which clearly has far-reaching implications - subject only to the specific statutory amendment w.e.f. 31 October 2003 regarding snow and ice, a highway authority’s duty to maintain the highway under Section 41 of the Highways Act 1980 is simply to maintain the physical surface of the highway itself. So the highway authority’s duty to maintain the highway only includes a duty to maintain drainage serving the highway in so far as that is necessary to maintain the physical surface of the highway. The highway authority has no duty to maintain drainage so as to prevent or remove a flood, however dangerous that may be, which is unrelated to any defect in the physical surface of the highway. Drivers who lose control in such floods do so at their own peril and the peril of others in the vicinity, but not at the expense of the highway authority or its insurers.
Quintin Tudor-Evans (Counsel for Amey)
Nicholas Heathcote Williams (Counsel for Cornwall)
Paul Russell is noted for his 'tough approach' and is a 'good choice when some steel is needed' (Chambers UK 2006)
