Devon CC v TR
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Sir Stanley Burnton,Lord Justice Lloyd |
| Judgment Date | 30 April 2013 |
| Neutral Citation | [2013] EWCA Civ 418 |
| Docket Number | Case No: B3/2012/1342 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2013 |
[2013] EWCA Civ 418
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MRS JUSTICE SLADE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Hughes of Ombersley
and
Sir Stanley Burnton
Case No: B3/2012/1342
Lord Faulks Q.C. and Angus Piper (instructed by Browne Jacobson) for the Appellant
Christopher Sharp Q.C. and Matthew White (instructed by Greenwoods solicitors) for the Respondent
Hearing dates: 19 and 20 February 2013
TR was the driver of a Land Rover on a country road. Whilst he was in the act of overtaking a slower-moving vehicle, his Land Rover left the road to the nearside and his passengers were very seriously injured in the ensuing crash into trees alongside the road. They sued him and he made a third-party claim against the highway authority ("Devon"), alleging that the defective state of the offside of the road was what had caused him to lose control. The claims of the passengers against the driver were settled, leaving the third party claim to be resolved at trial. That claim came on for hearing before Slade J. By her judgment given on 29 March 2012, [2012] EWHC 796 (QB), she found that the highway authority was liable and she held that TR had not been negligent at all. This is the appeal of the highway authority from those two decisions.
The road in question was part of what is mostly a winding and hilly country C-road leading from the A30 Honiton by-pass up into the Blackdown Hills. TR was on his way back from Exeter airport where he had collected one of his passengers. The accident happened about four miles or so after leaving the main road. TR was driving north. He had been following a slower-moving red Vauxhall Vectra. After a winding and steep section of road, and a right hand bend, the road ahead opened up into a straight section which gave ample visibility to overtake. The road was a single carriageway in each direction. At some points it had no line markings at all, but on the section where the accident occurred there was a long dash centre white line and solid white lines down each edge. On both sides there were soft grass verges. On TR's nearside (west) there was a ditch with trees beyond it, approximately level with the road surface. On his offside ( east), there was a noticeable and quite steep short bank down into a ditch, and a hedge beyond it. The weather was fine but it had been raining overnight and there was both some moisture on the surface of the road and puddles in places. It was a midweek early afternoon, Tuesday 28 November 2006 at about 2 pm.
TR 's vehicle was a long wheelbase five door Land Rover Defender, about eighteen months old and in good condition. He had owned it for less than a month but was used to such a vehicle.
There was damage to the offside ( east) edge of the tarmac, both outside and (in places) over and inside the continuous white edge line. This is common enough where the outer edge of the tarmac meets a soft grass verge, and it is caused by heavy vehicles running along or over the tarmac's edge with their tyres. It is known to highways engineers and maintenance people as "overriding" damage. The effect, whilst understandably referred to as a 'pothole', is perhaps better described as a rut or sunken part at the broken edge of the carriageway, with, to its right, a muddy edge of the grass verge standing proud of the bottom of the rutted area.
When inspected the next day, the area of overriding damage was agreed to be 51 metres long. Although there was a clear possibility that heavy emergency vehicles attending the accident, and ordinary traffic passing the obstruction caused by it, might well have exacerbated the damage, the judge made findings as to the state of the road at the time of the accident, after hearing the evidence of two accident reconstruction engineers, much of which was agreed. She found on the balance of probabilities that at its widest the damaged area extended about 150mm (just under 6 inches) inside the edge of the continuous white edge line and, in places, obscured or obliterated that line: [18]. That widest point was about 15 metres from the beginning of the 51 metre length of damage [13]. She found that the deepest part of the damaged area was something more than 80 mm (3 inches) deep, but by how much it was not possible to say: [22]. The Land Rover tyres were 235 mm (9.5 inches) wide: [24]. She found that TR must have put his offside tyres into the damaged area, that he entered it at a point before the place at which it intruded most into the carriageway [28], and that at the point where he entered it the continuous white edge line was either missing or difficult to see [39].
The evidence of both TR and a driver travelling behind him was that the Land Rover was more or less past the overtaken car by the time anything went wrong. TR described an unexpected bump and his steering becoming very uneven. One or other of his passengers at some stage said, or had said, something such as "look out for the potholes". He thought he was in command of the situation and steered to the left but lost control. The driver behind described the Land Rover as entering the damaged area and being apparently "spat out" to the left. The vehicle crossed the road, leaving a tyre mark on the oncoming southbound carriageway, and crashed into the ditch and trees off the road to the nearside (west). Further reconstruction was made difficult by the gravity of the accident, particularly because of the likely additional damage done by the ambulances and fire engines and because the Land Rover was badly damaged, having, moreover, had to have its roof cut off to extract the injured passengers.
As is well known, the duty of the highway authority evolved from the common law duty of the local inhabitants to maintain a highway. That duty was an absolute one but was enforceable only by what today would be called a public law action. The inhabitants were not liable for any private loss caused by the state of the road, unless there was misfeasance, as distinct from nonfeasance or simple failure to maintain. That origin is the explanation for the manner in which the law has been expressed since the Highways Acts 1959 and 1961, and in which it now appears in the Highways Act 1980. The duty to maintain contained in section 41 (which includes repair — see section 329(1)) is now broken by mere nonfeasance. It remains an absolute duty, and it may be invoked not only in relation to civil claims against the authority arising out of an accident but also by action to enforce the maintenance of the road (see section 56). It is a duty to put and keep the highway in such a state that it does not entail danger to those who use it in the manner ordinarily to be expected: see Rider v Rider [1973] QB 505 at 514D-H. However, so far as civil claims arising out of accidents arising from non-maintenance are concerned, the liability of the authority is limited by section 58 to the case where it has not taken such care as was in all the circumstances reasonably required to render the highway not dangerous to traffic. The onus of proving that all reasonable care was taken lies on the authority.
The issues which called for decision were therefore these.
i) Was there a breach of s 41, i.e. was the road in a condition which exposed to danger those using it in the ordinary way? If yes:
ii) Was the accident caused by that breach? If yes:
iii) Had Devon made out the statutory defence under section 58 of that Act, i.e. of taking all reasonable care? If no:
iv) Was there any contributory negligence on the part of TR?
Issues (i) & (ii): Section 41
The Judge's finding that the road was, in places at least, dangerous is implicit in several passages of her judgment, for example paragraphs [106], [110] and [112]. She was plainly entitled so to hold and there was little doubt about it on the facts. As a matter of abstract logic, I am content to accept the proposition of Lord Faulks QC for Devon that the fact that its highways staff would have regarded the defective road edge as a category 1 defect according to their working manual, and thus as requiring immediate attention on grounds of safety, does not of itself mean that the road was dangerous. It might theoretically be possible to postulate a case in which a defect met the manual's definition of a category 1 defect but yet there was no prospect of anyone being put in danger from it in the course of ordinary road use. However, it is not easy to imagine such a factual scenario and on the facts of this case the reason why the defect was category 1 was quite plainly because drivers might be put in danger by being thrown off course.
Devon's first ground of appeal is expressed as follows:
"The trial judge erred in finding that there was an actionable breach of duty under s 41 … having (correctly) found as a fact that TR's Land Rover did not enter the area of rutting … at its point of worst encroachment into the traffic lane. It is submitted that she ought to have found in the premises that there was no dangerous defect in the carriageway at the point that TR entered into the rutted area, such that there was no breach of s 41 of the Act."
The Judge was persuaded, at a hearing some weeks after giving judgment, to grant permission on this ground. In doing so she said this:
"The authorities put before the court dealt with the requirement on a claimant to show that they suffered an accident at the point in the highway which represented a...
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