Lillian Lawman (Married Woman) (Appellant (Plaintiff) v The Mayor Aldermen and Burgesses of the London Borough of Waltham Forest (Respondent
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE WALLER,DAME ELIZABETH LANE |
| Judgment Date | 23 January 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J0123-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1976 L 3416 |
| Date | 23 January 1980 |
[1980] EWCA Civ J0123-1
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Lord Justice Stephenson
Lord Justice Waller
and
Dame Elizabeth Lane
MR. J. SAMUELS (instructed by Messrs. Budd Martin Burrett) appeared on behalf of the Appellant (Plaintiff).
MR. P. TWIGG (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Respondent (Defendant).
On 10th October 197 5 Mrs. Lawman, the plaintiff, then aged 66, was returning in daylight in the middle of the day, with her husband, from a shopping expedition to her home on the corner of Waltham Way and Valley side in the London Borough of Waltham Forest. She was walking in Waltham Way, along a flagstone pavement a few feet wide, which runs between a grass verge at the edge of a wide road and a brick wall turning into a hedge near the point where she tripped on a projecting paving stone near to a public street light, number 62, and broke her left radius and wrist.
She sued the Highway Authority, the defendants, for breach of the statutory duty imposed upon them by section 44(1) of the Highways Act 1959, and for negligence and nuisance. The defendants denied the allegations and pleaded the statutory defence provided by section 1(2) of the Highways (Miscellaneous Provisions) Act 1961, and contributory negligence on the part of the plaintiff.
At the trial on 26th April to 6th June 1978 the defendants did not pursue their allegations of contributory negligence. The learned judge dismissed the action but he assessed the damages at £1,269.90 exclusive of injuries. He felt considerable sympathy for the plaintiff, but he felt unable to find any breach of statutory duty and he would have rejected the statutory defence pleaded if he had found that the defendants were in breach, though he could not fault their instructions to their officers or the inspection required of those officers.
This appeal is principally against the judge's findings of no breach of statutory duty.
We have heard able arguments chiefly favouring different interpretations of the duty imposed on a highway authority by section 44(1) of the Act of 1959. The judge's findings on primary fact, most of which are not challenged, are these. He found that Mr. Heasman, the defendants' Street Inspector, (a 'perfectly careful inspector', as he described him) inspected the pavement area where the plaintiff later fell, on 3 September 1975, in accordance with the defendants' instructions to inspect this area every two months and report projections of 20 millimetres or more. He noticed no projection of the order of 20 millimetres, though he noticed and reported such a projection not very far away.
On 10th October 1975 the plaintiff tripped on a paving stone which was 20 millimetres (or. 78 of an inch) proud, and injured her left arm, as I have said. On 22nd October 1975 Mr. Clayton, the defendants' Accident Inspector, who had been a Street Inspector, measured the projection of the stone which tripped the lady as 20 millimetres. He gave instructions for that part of the pavement to be repaired and for two other flagstones, quite a long way away around the corner into Valleyside, to be repaired at the same time, and he marked those repairs to all three flagstones as urgent.
The learned judge said this, at page 3 of the transcript:
"The first question is has the plaintiff established that the footpath was out of repair? These footpath cases have been giving trouble for years, and they continue to, and no doubt will continue to give trouble. On one side the local authority is under duty to keep the highway, which a footpath is a part of, in good repair. On the other side, it is quite obvious that citizens of the country cannot expect every footpath to be like a billiard table, and commonsense cells one that one must allow for somedifferences in level between flagstones and that some differences do not necessarily mean that the footway is out of repair. The fact that an accident happened at a particular place may or may not be indicative of the footway being in a dangerous condition because, on the authorities, if as a result of non-repair the footway does become dangerous, plainly it is a case of a defect which can be said to require repair and therefore it is submitted the footway is out of repair. And that unless the local authority can rely on the statutory defence given under Section 1, subsection (2) of the Highways Act, 1961, they are liable for an injury which results."
After referring to Meqqs v. Liverpool Corporation 1968 1 WLR 1137 and the unreported case of Whitworth v. The Manchester Corporation, which was decided by this court on 17th June 1971 and is in the Supreme Court Library Transcript Reports, and to the report of the Marshall Committee on Highway Arrangements in 1970, the learned judge refused to regard a figure such as 20 millimetres as "a blanket figure" on which a highway authority could always rely to escape statutory liability, though proper as a yardstick by which to judge whether the expense of repairing footways should be undertaken. He then found no want of repair in this pavement at the material time and place, and held that the action must fail.
Did the defendants fail to maintain the pavement, being a part of the highway, under the provisions of section 44(1) of the Highways Act 1959, as the plaintiff alleged? What was the" duty imposed upon them by those provisions.
Section 44 provides by subsection (1);
"The authority who are for the time being the highway authority for a highway maintainable at the public expense shall, subject to the following subsection" (which is not relevant to this case) "be under a duty to maintain the highway."
By section 295 (1):
"maintenance" includes repair, and "maintain" and "maintainable" shall be construed accordingly":
And "traffic", not mentioned in section 44 but relevant to the decision in this appeal, "includes pedestrians and animals".
The nature and extent of the duty imposed by section 44(1) has been clearly stated in judgments binding upon this court. For instance, Diplock, L. J. in Burnside v. Emerson, 1968 1 WLR, 1490, stated the duty thus, at page 1496:
"The duty of maintenance of a highway which was, by section 38(1) of the Highways Act, 1959, removed from the inhabitants at large of any area, and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular" time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. I take most of those words from the summing-up of Blackburn J. in a case in 1859, Reg, v. Inhabitants of High Halden." (1 Foster and Findlayson 678). "Non-repair" has the converse meaning."
Further down on page 1497, the learned Lord Justice said this:
"A mere failure to repair gives rise to no cause of action unless the failure to repair results in a danger to the traffic using the road and damage caused to some user of the highway by the existence of that danger."
Diplock, L. J. had already explained in the first of the reported pavement cases that this duty to maintain was absolute. In Griffiths v. Liverpool Corporation 1967 1 QB, 374, he said this at page 389 F:
"The duty which at common law rested upon the inhabitants at large to maintain the highways in their parish was long ago transferred to local authorities acting as highway authorities and has become a statutory duty currently imposed by section 44(1) of the Highways Act,1959. The duty at common law to maintain, which includes a duty to repair a highway, was not based on negligence but in nuisance. It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain, and the statutory duty which replaced it was also absolute."
The judgement of Salmon, L. J. in the same case, at page 394, is to the same effect.
The same statutory duty was restated by Sachs, L. J. in Rider v. Rider, 1973 QB. 505, at page 514 E:
"Having considered the authorities cited to Stirling J. and in this court, it is in my judgment clear that the corporation's statutory duty under section 44 of the Act of 1959 is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them - taking account, of course, of the traffic reasonably to be expected on the particular highway."
In using the words "reasonably to maintain and repair", I take the learned Lord Justice to be intending to measure the standard of maintenance and repair and not to qualify the absolute duty by any considerations of what is reasonably practicable.
In the most recent reported case before this court, Haydon v. Kent County Council, 1978 QB, 343, Lord Denning, Master of the Rolls, restates the duty as an absolute duty at pages 356 and 357 of the report when explaining the meaning of the words "repair" and "maintain".
Mr. Twigg, for the defendants, has made a submission based on language used by Lord Denning, M. R. in Burnside v. G Emerson at page 1494 of the report, and by Goff, L. J. and Shaw, L. J. in Haydon v. Kent County Council, at pages 363and 364 of the report (both cases concerned not with want of repair, but with a transient hazard produced by bad weather)which I find hard to reconcile with the absolute nature of the duty to maintain, subject to the defence provided by section 1(2) of the Highways Miscellaneous Provisions Act 1961. But I need not consider that...
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