Ali v The Bradford Metropolitan District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Wilson,Lord Justice Longmore |
| Judgment Date | 17 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1282 |
| Docket Number | Case No: B3/2010/0143 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 November 2010 |
[2010] EWCA Civ 1282
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
HHJ Shaun Spencer QC
Before: Lord Justice Longmore
Lord Justice Wilson
and
Lord Justice Toulson
Case No: B3/2010/0143
8BD03622
Mr David Wilby QC and Mr Ian Pennock (instructed by Eatons Solicitors) for the Appellant
Mr David Eccles (instructed by Berrymans Lace Mawer) for the Respondent
Hearing dates: 20 July 2010
Lord Justice Toulson:
Introduction
The question on this appeal is whether a highway authority may be liable, by way of an action for breach of statutory duty under s 130 of the Highways Act 1980 and/or nuisance, for an accident suffered by a member of the public on a public footpath as a result of slipping on an accumulation of mud and debris.
The claim was brought by Mrs Ali against the defendant highway authority in the Bradford County Court. There has been no trial of the facts because Deputy District Judge Lobb held on a preliminary hearing that the claimant's pleadings disclosed no cause of action, and her judgment was upheld by Judge Spencer QC.
The footpath in question runs between Dick Lane and New Street in Laisterdyke, Bradford. It is accepted that it comes within the definition of a highway maintainable at public expense under s 36 of the Act.
The footpath is narrow. At the entrance from Dick Lane there are several stone steps. Photographs taken for the litigation show the steps covered with a considerable amount of mud, overgrown vegetation and all sorts of rubbish. The facts assumed for present purposes are that on 19 September 2006 Mrs Ali was walking with a friend. They came to the footpath and she started to go down the steps. When she reached the third or fourth step, she decided that they were too dangerous. As she turned to tell her friend not to follow, she slipped and fell. It is her case that the condition of the footpath had been long neglected by the highway authority.
Mrs Ali's heads of claim initially included breach of duty under sections 41 and 150 of the Highways Act, breach of duty under the Occupiers Liability Act 1957 and negligence; but by the time of the hearing before the deputy district judge her heads of claim were limited to breach of duty under s 130 of the Highways Act and nuisance.
The Highways Act 1980 is a consolidation Act. Like its immediate predecessor, the Highways Act 1959, the 1980 Act is “not a code which sprang fully formed from the legislative head but was built upon centuries of highway law” (Lord Hoffmann in Goodes v East Sussex County Council [2000] 1 WLR 1356, 1360). Its provisions have to be read in the context of the common law and statutory background.
Part IV of the Act (comprising ss 36 to 61) is headed “Maintenance of Highways”.
Section 41(1) imposes a general duty on a body which is the highway authority for a highway maintainable at public expense to maintain it. Section 41 (1A) provides:
“In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”
I will come back to the circumstances in which that subsection was enacted.
In an action against a highway authority in respect of damage resulting from failure to maintain a highway maintainable at public expense, s 58 provides that it is a defence for the authority to show that it had taken such care as in all the circumstances was reasonably required to secure that the relevant part of the highway was not dangerous for traffic.
Part IX of the Act (comprising ss 130 to 185) is headed “Lawful and Unlawful Interference with Highways and Streets”.
Section 130 is headed “Protection of public rights” and provides:
(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority, including any roadside waste which forms part of it.
(2) Any council may assert and protect the rights of the public to the use and enjoyment of any highway in their area for which they are not the highway authority, including any roadside waste which forms part of it.
(3) Without prejudice to subsections (1) and (2) above, it is the duty of a council who are a highway authority to prevent, as far as possible, the stopping up or obstruction of—
(a)the highways for which they are the highway authority, and
(b) any highway for which they are not the highway authority, if, in their opinion, the stopping up or obstruction of that highway would be prejudicial to the interests of their area.
(4) Without prejudice to the foregoing provisions of this section, it is the duty of a local highway authority to prevent any unlawful encroachment on any roadside waste comprised in a highway for which they are the highway authority.
(5) Without prejudice to their powers under section 222 of the Local Government Act 1972, a council may, in the performance of their functions under the foregoing provisions of this section, institute legal proceedings in their own name, defend any legal proceedings and generally take such steps as they deem expedient.
(6) If the council of a parish or community or, in the case of a parish or community which does not have a separate parish or community council, the parish meeting or a community meeting, represent to a local highway authority—
(a) that a highway as to which the local highway authority have the duty imposed by subsection (3) above has been unlawfully stopped up or obstructed, or
(b) that an unlawful encroachment has taken place on a roadside waste comprised in a highway for which they are the highway authority,
it is the duty of the local highway authority, unless satisfied that the representations are incorrect, to take proper proceedings accordingly and they may do so in their own name.
(7) Proceedings or steps taken by a council in relation to an alleged right of way are not to be treated as unauthorised by reason only that the alleged right is found not to exist.
Section 149 has the sidenote “Removal of things so deposited on highways as to be a nuisance” and provides:
(1) If any thing is so deposited on a highway as to constitute a nuisance, the highway authority for the highway may by notice require the person who deposited it there to remove it forthwith and if he fails to comply with the notice the authority may make a complaint to a magistrates’ court for a removal and disposal order under this section.
(2) If the highway authority for any highway have reasonable grounds for considering—
(a) that any thing unlawfully deposited on the highway constitutes a danger (including a danger caused by obstructing the view) to users of the highway, and
(b) that the thing in question ought to be removed without the delay involved in giving notice or obtaining a removal and disposal order from a magistrates’ court under this section,
the authority may remove the thing forthwith.
(3) The highway authority by whom a thing is removed in pursuance of subsection (2) above may either—
(a) recover from the person by whom it was deposited on the highway, or from any person claiming to be entitled to it, any expenses reasonably incurred by the authority in removing it, or
(b) make a complaint to a magistrates’ court for a disposal order under this section.
(4) A magistrates’ court may, on a complaint made under this section, make an order authorising the complainant authority—
(a) either to remove the thing in question and dispose of it or, as the case may be, to dispose of the thing in question, and
(b) after payment out of any proceeds arising from the disposal of the expenses incurred in the removal and disposal, to apply the balance, if any, of the proceeds to the maintenance of highways maintainable at the public expense by them.
(5) If the thing in question is not of sufficient value to defray the expenses of removing it, the complainant authority may recover from the person who deposited it on the highway the expenses, or the balance of the expenses, reasonably incurred by them in removing it.
(6) A magistrates’ court composed of a single justice may hear a complaint under this section.
Section 150 has the sidenote “Duty to remove snow soil etc. from highway” and provides:
(1) If an obstruction arises in a highway from accumulation of snow or from the falling down of banks on the side of the highway, or from any other cause, the highway authority shall remove the obstruction.
(2) If a highway authority fail to remove an obstruction which it is their duty under this section to remove, a magistrates’ court may, on a complaint made by any person, by order require the authority to remove the obstruction within such period (not being less than 24 hours) from the making of the order as the court thinks reasonable, having regard to all the circumstances of the case.
(3) In considering whether to make an order under this section and, if so, what period to allow for the removal of the obstruction, the court shall in particular have regard to—
(a) the character of the highway to which the complaint relates, and the nature and amount of the traffic by which it is ordinarily used,
(b) the nature and extent of the obstruction, and
(c) the resources of manpower, vehicles and equipment for the time being available to the highway authority for work on highways and the extent to which those resources are being, or need to be, employed elsewhere by that authority on such...
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