Almeda v Attorney General for Gibraltar
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 24 November 2003 |
| Neutral Citation | [2003] UKPC 81 |
| Court | Privy Council |
| Docket Number | Appeal No. 57 of 2002 |
| Date | 24 November 2003 |
[2003] UKPC 81
Privy Council
Present at the hearing:-
Lord Steyn
Lord Rodger of Earlsferry
Sir Martin Nourse
Sir Andrew Leggatt
Sir Philip Otton
[Delivered by Lord Rodger of Earlsferry]
The appellant is Mrs Leta Almeda who raised an action of damages for personal injuries against the Attorney General, in right of the Government of Gibraltar, in the Supreme Court of Gibraltar. Mrs Almeda sued the government as the authority responsible for the highway or street known as Line Wall Road just off the town centre. In her action she alleges that on 10 September 1999, as she was walking along the pavement of Line Wall Road, she tripped over some broken paving stones and fell. In consequence she sustained fractures to both wrists and an injury to her right foot. The injuries to her wrists required extensive surgery followed by physiotherapy.
Section 238 of the Public Health Ordinance 1950 ("the 1950 Ordinance") as amended provides:
"(1) Subject to the provisions of this Part, all public highways and other streets in Gibraltar, other than reserved ways, shall be held by the Governor on behalf of Her Majesty.
(2) It shall be the duty of the Government to maintain all public highways and other streets and all such culverts and water channels as may be necessary to carry off the surface water therefrom, and all walls, retaining walls, and parapet walls situate thereon or pertaining thereto and which are requisite for their support, or for the safety of passengers and ordinary traffic thereon."
So far as relevant, section 244 is in these terms:
"The Government shall from time to time cause all public highways to be levelled, paved, metalled, flagged, channelled, altered and repaired as they may think fit, and may make and keep in repair pavements or footways for the use of passengers in or on the sides of any public highway."
In her claim form the appellant alleged that the government had failed adequately or at all to repair and/or maintain the pavement along Line Wall Road, that they had failed to institute or maintain any or any adequate regime for the inspection of the condition of the road, that they had failed to fence off or guard the defect and that they had failed to provide any warning of the existence of the defect. The claimant also pleaded that the defect constituted a nuisance that the government had caused or permitted. However formulated, her claim was not that the government had done something that had led to her injury but, rather, that the government had failed to do something and that this failure had led to her injury. In other words she alleged non-feasance rather than misfeasance on the part of the government. Paragraph 5 of the Attorney General's defence was in these terms:
"Further the breach of statutory duty alleged in paragraph 6 and nuisance alleged in paragraph 7 is by way of nonfeasance by the defendant. Under sections 238 and 244 of the Public Health Ordinance the defendant is not liable in law in respect of matters of non-feasance and, accordingly, the particulars of claim disclose no cause of action."
It so happened that there was another similar action of damages for personal injuries against the Attorney General in the Supreme Court at the same time. The claimant in that action, Mrs Mary Edery, alleged that she had sustained injuries when, on leaving premises on Market Lane, she stepped on to the road, put her foot into a pothole and fell to the ground. Mrs Edery also relied on the government's statutory duties to maintain and repair the public highways and roads. The Attorney General amended his defence to that action so as to take the same point as to there being no liability for non-feasance. Pizzarello J accordingly adjourned Mrs Almeda's action until after he had given judgment on the issue raised by the amended defence in Mrs Edery's action. On 22 May 2001 he gave judgment dismissing that action and, on 25 May 2001, he also dismissed Mrs Almeda's action.
Both Mrs Edery and Mrs Almeda appealed to the Court of Appeal for Gibraltar and the two appeals were consolidated. By a majority (Neill P and Staughton JA, Glidewell JA dissenting) the Court of Appeal dismissed the appeal. Mrs Almeda appeals to the Board from that decision.
It is clear from the judgments in the courts below, as well as from the way the appeal was argued before the Board, that the Attorney General has not sought to distinguish between the two cases. In particular he has attached no importance to the fact that Mrs Edery alleges that she fell when she stepped into a pothole on the road, whereas Mrs Almeda says that she fell when she tripped on the pavement. Section 238(2) of the 1950 Ordinance lays on the government a "duty … to maintain all public highways and other streets …" and section 244 says that the government "shall from time to time cause all public highways to be … repaired as they may think fit". Both of these provisions, relating to the highways and streets, are conceived in terms of a duty on the government, whereas, when section 244 deals with pavements, it simply says that the government "may make and keep in repair pavements or footways for the use of passengers in or on the sides of any public highway …". In other words the government are under a duty to maintain and to level and repair the highway or street on which Mrs Edery fell but are merely given a power to make and keep in repair the pavement or footway on which Mrs Almeda fell. The Attorney General did not base any argument on this possible distinction between the cases. This was consistent with his overall approach, which was that, even if there were a duty to repair the pothole in the street, the government were no more liable to Mrs Edery for not performing that duty than they were liable to Mrs Almeda for not exercising their power to keep the pavement in repair. Therefore, although only Mrs Almeda has appealed to the Board, their Lordships think it right to consider the general point of principle raised by the consolidated appeal to the Court of Appeal for Gibraltar.
Section 1 of the Order in Council dated 2 February 1884 provided:
"Except in respect of matters which are now or hereafter may be provided for by any Order in Council or local Ordinance for the time being in force in Gibraltar, or by any Act of Parliament expressly, or by necessary inference, extending to Gibraltar, or by any proclamation or other instrument issued under the authority of such Order in Council, local Ordinance, or Act of Parliament, the law of England, as it existed on the 31st day of December 1883, shall hereafter be in force in Gibraltar, so far as it may be applicable to the circumstances thereof."
That provision was superseded by section 2(1) of the English Law (Application) Ordinance 1962, which governs the situation at present:
"The common law and the rules of equity from time to time in force in England shall be in force in Gibraltar, so far as they may be applicable to the circumstances of Gibraltar and subject to such modifications thereto as such circumstances may require, save to the extent to which the common law or any rule of equity may from time to time be modified or excluded by-
(a) an order of Her Majesty in Council which applies to Gibraltar; or
(b) any Act of Parliament at Westminster which applies to Gibraltar, whether by express provision or by necessary implication; or
(c) any Ordinance."
The contention for the Attorney General is that, at least since 1884, the rule of English law that a highway authority is not liable for non-feasance has been part of the law of Gibraltar. Counsel for the appellant submits that, since that rule was never applicable to the circumstances of Gibraltar, it never applied in Gibraltar, even if it applied in England before being abrogated by section 1(1) of the Highways (Miscellaneous Provisions) Act 1961. In Russell v Men of Devon (1788) 2 TR 667 the King's Bench Division had held that, while the duty to repair a bridge could be enforced by indictment, the men of the county were not liable in damages for failing to repair it. One of the main reasons for that decision was that the men of the county were not a corporate body and therefore there was no corporate fund out of which any damages awarded against them could be paid. By contrast, in Gibraltar the responsibility for repairing the roads had vested successively in various bodies, all with funds out of which any damages could be paid.
Even if one went as far back as 30 December 1815, said counsel for the appellant, an Order in Council provided for a rate to be levied for the purpose of paving, repairing and cleansing the streets that were vested in, and under the control of, the Crown. Following an outbreak of cholera in 1865, an Order in Council established a body of Sanitary Commissioners. Section 27 vested the public highways in them so far as necessary for the purposes of carrying out the Order. In 1883 the Sanitary Order in Council, Gibraltar was made, section 161 of which provided that the Sanitary Commissioners were, for the purposes of the Order, to
"control, manage, and maintain the public highways, and also all such culverts and water channels as may be necessary to carry off the surface water therefrom, and all walls, retaining walls and parapet walls situate thereon or pertaining thereto and which are requisite for their support, or for the safety of passengers or ordinary traffic thereon, and whenever necessary shall cause the same to be paved, flagged or repaired, and the ground or soil thereof to be raised, lowered, or altered, in such manner and with such materials as they shall think proper, and they shall also pave or make, and repair with such materials as they shall think fit,...
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