Section 5
Liabilities arising from highways
5.1: Public authority liability
George Laurence Q.C.
Pure economic loss sustained by reason of a highway authority's failure to keep in
repair a publicly-maintainable highway cannot be recovered.
Janet Relfe, LL.B., Principal Solicitor, Buckinghamshire County Council.
Public liability to maintain highways is rooted in history and regulated by a number
of statutes, principally the Highways Act 1980. Unfortunately, in addition to situations
in which the law itself is unclear, there is often considerable uncertainty as to what
precisely the law requires to be done in a given factual situation.
Professor K. Davies, Barrister, University of Reading.
The decision in Wentworth v. Wiltshire County Council has highlighted the relevance to
highway authorities and highway users of the law relating to liability in tort for breach
of statutory duty. This article describes the approach of the courts to the problem of
determining when a person who suffers loss as a result of breach of a statute should be
able to recover compensation. Unfortunately the area is one in which the law is far from
clear.
P.R. Ghandhi M.A., LL.M, Senior Lecturer in Law, Reading
In Stovin v. Wise and Norfolk County Council, the Court of Appeal held that the duty
imposed on a highway authority by s.41(1) of the Highways Act 1980 (the 1980 Act) to
maintain the highway did not require the authority to carry out work on land not forming
part of the highway because it could not be required to remove the bank in question from
land which it did not own. However, work required could go beyond maintenance because
there was a common law duty of care owed to all road users by a highway authority to act
to eradicate a known danger, in this case the impaired visibility from an obstruction on
land adjoining the highway.
Professor Keith Davies, Barrister, Univ. of Reading
The highway authority failed to come within the special defence of s.58 of the
Highways Act 1980 because they had not taken such care as the circumstances required to
secure that the highway was not dangerous to traffic. It was held that the authority was
in breach of their statutory duty to maintain the highway under s.41 of the 1980 Act, and
in breach of their common law duty of care.
Professor Keith Davies, Barrister, University of Reading
If the highway authority has a duty to maintain a highway, and failure to do so
results in the physical state of the highway causing harm to a highway user, the authority
will now be liable in damages to that user. The cases of Russell v. The Men of Devon and
McClelland v. Manchester Corporation are examined to show the evolution of this liability
based on negligence, from the common law origins where no liability for damage caused to
that highway user existed for "neglect" of highway maintenance.
Professor Emeritus Keith Davies, J.P., M.A., LL.M., Barrister
If, on land which is adjacent to a highway maintainable at public expense, a state of
affairs exists which is a hazard to users of the highway, and there are statutory powers
which would enable (but not compel) the highway authority to order the landowner to remove
the hazard, failure by the authority to use those powers (which are not available to
anyone except the authority) does not constitute a breach of a duty of care so as to make
the authority liable in damages for negligence in respect of harm suffered by a user of
the highway in an accident wholly or partly attributable to that hazard.
Stephen Sauvain, Q.C., and Ross Crail, Barrister
This is the first of three articles which discuss the common law and statutory
responsibilities to repair bridges. This first article considers bridges which carry a
highway maintainable at public expense. In the great majority of cases, it may be safe to
assume that where a highway maintainable at the public expense is carried by a bridge, if
no other body can be identified as being responsible for its repair, then that bridge will
be held to be maintainable along with the highway it carries.
Stephen Sauvain, Q.C., and Ross Crail, Barrister
This is the second of three articles which discuss the common law and statutory
responsibilities to repair bridges. In the first article the authors touched on some of
the cases in which a publicly maintainable highway could be carried by a bridge belonging
to and maintainable by another party. Primarily these will be bridges constructed under
statutory powers. This second article considers these bridges together with another small
class of bridges which although maintainable for the benefit of the public are not
maintained by the highway authority. These are the bridges which are maintainable by
reason of tenure, prescription or inclosure.
Stephen Sauvain, Q.C., and Ross Crail, Barrister
This is the last of three articles which discuss the common law and statutory
responsibilities to repair bridges. In the first article the authors addressed the
situation where a highway maintainable at the public expense is carried by a bridge and
considered the responsibilities of the highway authority to maintain the structure of the
bridge. It was suggested that if a bridge carries a publicly maintainable highway then, in
all probability, the courts would find a corresponding liability to maintain the structure
of the bridge supporting the highway. In the second article they addressed some of the
problems to be faced in establishing and enforcing the liability to maintain bridges which
are privately maintainable by reason of statute, tenure or prescription. There are,
however, many bridges which carry highways which will be maintainable by no-one. This will
be the case where the highway carried by the bridge is itself neither maintainable at the
public expense nor privately maintainable. Whilst using an ordinary way which is falling
into disrepair may be uncomfortable and inconvenient, the potential consequences of a
bridge falling into disrepair are that the highway may be severed and become unusable. The
question arises, therefore, as to what - if any - are the responsibilities and liabilities
of the highway authority and the owner of the bridge to highway users when a bridge
carrying a highway which is not maintainable for the benefit of the public falls into
disrepair.
Carolyn Walker LL.B.
Public enjoyment of many rights of way is enhanced where highway authorities use their
powers to provide a range of amenities for users. One of the reasons why these powers are
not used more extensively may be a fear of incurring liability for any harm suffered by
users. However, this fear may be exaggerated. Amenities are often primarily intended to
promote safety or, even where their primary function is simply to increase public
enjoyment, they may contribute to safety. Where the cost of the amenities themselves,
rather than the fear of litigation, is a deterrent to providing them, in current
conditions, funding may, at least in part, be sought from private sources, such as rights
of way users.
Philip Petchey, Barrister
There is continuing debate as to the extent of a highway authority's duty to maintain
and its consequent liability for accidents to users; though it appears unlikely that
action brought by users against authorities under the Occupiers' Liability Act 1957 will
succeed. There is also uncertainty as to the liability of railway operators for accidents
incurred at footpath or bridleway crossings; and, as regards the hazard of bulls on rights
of way, current legal provision has not prevented fatalities. In both these instances,
provisions for stopping up or diversion under the Highways Act 1980 have been of limited
practical use in addressing the problems. The protection of third parties at risk from the
use of public paths could give rise to further legislation; but it is suggested that this
is both unnecessary and also unlikely to be effective.
Philip Petchey, Barrister
A case note
S.41(1) of the Highways Act 1980 (a re-enactment of s.44(1) of the Highways Act 1959)
provides as follows:
"The authority who are for the time being the highway
authority for a
highway maintainable at the public expense are under
a duty ... to
maintain the highway".
In Goodes v. East Sussex County Council, the House of Lords unanimously held that the duty
of a highway authority under s.41(1) to maintain the highway did not require the authority
to keep it free of ice.
Philip Petchey, Barrister
A case note
In Larner v Solihull Metropolitan Borough Council, the Court of Appeal dismissed a claim
based on a highway authority's failure to erect a sign giving advance warning of the need
to give way at a junction. The omission was found to be far from unreasonable on the
facts. The point of wider interest is that the Court of Appeal indicated that a highway
authority may owe a common law duty of care in respect of road safety if the authority has
acted wholly unreasonably or if its failure to act has been wholly unreasonable.
Philip Petchey, Barrister
A case note
The Court of Appeal held that a claimant had `a positively powerful case' against the
planning authority where the claimant's injuries stemmed from the fact that a new footpath
created a hazard for path users where it joined the main road, and the planning authority
had created the hazard in the sense that it had entered into a s.52 agreement which
required that the footpath be provided by the developer, and had not attempted to delay
the opening of the path when it knew that the work needed to remove that hazard had not
been carried out. Neither Stovin v. Wise nor Lam and Brennan v. Borough of Torbay was seen
to afford a defence in those circumstances. Of wider interest, dicta indicate that Lam
might not have afforded protection if the planning authority had not required the
provision of the footpath, but had granted planning permission for the construction of the
path without imposing any condition which would preclude use of the path until the cause
of the danger had been removed.
Janet Relfe, Solicitor, Strategic Manager Planning and Transportation, Buckinghamshire
County Council
Public liability to maintain highways has many aspects, including identifying the
highways for which the highway authority is responsible, funding, the required standards,
the means of attaining those standards and the methods of enforcement.
Simon Adamyk, Barrister
A case note
From the mid 1970s a tree growing in the footpath of an urban highway had been allowed to
develop a large crown. About that time severe tree-pruning went out of fashion; people
liked to see a more bushy effect. With lighter pruning the demand of the foliage for water
increased and roots grew more extensively.The resultant damage to an adjoining building
some 15 years later raised an issue, on which there is surprisingly little authority in
English law, about the recoverability of remedial expenditure incurred after encroachment
by tree roots. Lord Cooke summarised the law in the proposition that "where there is
a continuing nuisance of which the defendant knew or ought to have known, reasonable
remedial expenditure may be recovered by the owner who has had to incur it"
Prof. Emeritus Keith Davies, J.P., M.A., LL.M., Barrister, Hon.Assoc.R.I.C.S.
A case note
In Larner v. Solihull Metropolitan Borough Council the Court of Appeal, although rejecting
the claim on the facts, contemplated that damages for breach of a common law duty of care
would be recoverable for a local authority’s failure to paint warning signs on the
road, based upon a breach of its duty under s.39 of the Road Traffic Act 1988, if the
Council could be shown to have acted irrationally.
In Gorringe v. Calderdale Metropolitan Borough Council the House of Lords unanimously
rejected the notion that s.39 created a duty for breach of which damages could be
recovered, and also rejected the contention that failure to supply, or to repaint, notices
alerting motorists to dangers constitute a breach of the highway authority’s
statutory duty to ‘maintain’ the highway. The decision leaves open the
possibility that a highway authority could be held liable for damages where the manner in
which it performed the duty imposed by s.39 trapped motorists into danger..
Philip Petchey, Barrister
A case note
A highway authority’s liability in respect of ice on roads revisited.
Philip Petchey, Barrister
A case note
The extent to which the maintenance of a highway extends to the drains of the highway is
reviewed by the Court of Appeal.
Ross Crail, Barrister
As well as covering ground whose treatment is spread over a number of earlier articles
in this section, this article amplifies and updates some aspects of the earlier treatment.
John Trevelyan, B.A., Consultant
There are no direct statutory requirements on highway authorities to make improvements
to rights of way for those with mobility problems or disabilities. However, there are
statutory provisions which require, or will require when brought into force, authorities
to give consideration to the issue; and also to consider whether their practices and
procedures need to be amended to avoid discriminating against people with disabilities.
The practices and procedures concerned include those relating to matters such as the
removal of obstructions, which will constitute an ‘improvement’ in the view of
users, even if not qualifying as an ‘improvement’ under the Highways Act 1980.
John Sugden, Ph.D., C.Eng., MICE, MCIT
This article examines the issues that arise where an existing or proposed high-speed
road intersects a desire line for vulnerable users. It considers the options available to
the highway authority and the legal constraints within which it must operate and suggests
best practice for solving the problems.
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