Department of Transport, Environment and the Regions v Mott Macdonald Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Moses,Chancellor of the High Court |
| Judgment Date | 27 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1089 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: A2/2006/0944 & 0945 |
| Date | 27 July 2006 |
[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
Royal Courts of Justice
Strand, London, WC2A 2LL
Chancellor of The High Court
Lord Justice Carnwath and
Lord Justice Moses
Case Nos: A2/2006/0944 & 0945
HQ0403577/356
Nigel Wilkinson QC & William Hoskins (instructed by Treasury Solicitors) for the Appellants
Geoffrey Brown (instructed by Hextalls LLP), for the 1 st Respondent
Edward Faulks QC (instructed by LGL and Handcock Caffin) for the 2 nd & 3 rd Respondents
Background
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.
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 East Sussex County Council [2000] 1 WLR 1356, section 41 did not encompass a duty to maintain the highway drains.
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).
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
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.
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
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.
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…").
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) ."
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."
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."
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.
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
Section 41(1) of the Highways Act 1980 provides as follows:
"The authority who are for the time being the highway...
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