Valentine v Transport for London and Another
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1358 |
| Docket Number | Case No: B3/2010/1282 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 December 2010 |
[2010] EWCA Civ 1358
His Honour Judge Knight QC
Before: The Chancellor of the High Court
Lord Justice Hughes
and
Lord Justice Aikens
Case No: B3/2010/1282
9MK01607
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
Mr Andrew Prynne QC and Mr Paul Kilcoyne (instructed by McKeowns) for the Appellant
Mr Adam Weitzman (instructed by Kennedys Law LLP) for the 1 st Defendant
Mr Quintin Tudor-Evans (instructed by Watmores) for the 2 nd Defendant
Hearing date: 2 nd November 2010
Lord Justice Hughes:
This is an appeal by the claimant from the decision of the Judge to strike out her claims. Her claims arose from what was alleged to be an unsafe accumulation of surface grit at the edge of the highway. The appeal raises questions about the extent of the duty owed to road users by (1) the highway authority (the first defendants, Transport for London) and (2) the local council (the second defendants, the London Borough of Hounslow) which undertook some cleaning operations on the road.
The A4 Great West Road is, at Brentford, an urban dual carriageway with three lanes in each direction. It is not a motorway, and there are numerous entrances/exits and junctions. One of those is the entrance/exit for a sizeable commercial open car park alongside the highway, which serves a mixture of shops, offices and other business premises. The car park is not part of the highway. Its entrance/exit is formed, in effect, of a T junction with the highway. That T junction is slightly splayed, so that there is a tapering sliver of tarmac at either side of it, lying just to the side of what is otherwise the kerb line of the nearside lane of the highway. The splays, although they have been described as 'slip roads' are not acceleration or deceleration lanes and are much narrower than slip roads would be; their surfaces are, however, likely to be traversed by the nearside wheels of a motor car using the entrance/exit and similarly by a two-wheeled vehicle. It is to be accepted for the purposes of this appeal that the splays form part of the highway. Alongside the main road on its nearside beyond the kerb there is a grassed verge and beyond that a cycle path and footpath, all of which are interrupted where the entrance/exit crosses.
On 4 th April 2006 Mr Valentine was leaving the car park on his motorcycle and turning left onto the A4. The pleaded case, which had to be assumed accurate for the purposes of considering an application to strike out the claim, read as follows:
“As the Claimant [sic] attempted to exit from the slip road his motor cycle skidded on extensive gravel/loose debris present on the road surface located between the cycle path and the main carriageway of the A4 causing [him] to lose balance and to be thrown from his motor cycle and falling to the ground.”
Although no evidence has of course yet been given, the photographs which we have seen appear, at first sight at least, to show a significant accumulation of sandy-coloured grit or similar material on the slivers of road. Mr Valentine certainly came off his motor cycle. What appeared at first to be a minor injury very sadly turned out to develop into an acute subdural haematoma, and although he was taken the next day to hospital, it proved impossible to save him. This claim was accordingly brought under the Fatal Accidents Act by his widow.
The first defendant, Transport for London (“TfL”), is the highway authority for the A4. The claimant's particulars of claim allege that the London Borough of Hounslow (“Hounslow”), the second defendant, was the agent of TfL and as such charged with the responsibility for “maintaining, inspecting and cleaning” the road. It should be recorded that Hounslow does not accept that that accurately describes its position. It seems that it may, however, be the 'litter authority' under the Environmental Protection Act 1990. It is not, as I understand it, disputed that Hounslow did undertake some cleaning or sweeping of the road surface. The exact capacity in which it did so is at present not fully resolved. Once again, however, for the purposes of considering the application to strike out, the claimant's pleaded case must be assumed to be correct. Moreover, as will be seen, the capacity is not in any event critical to the question which arises at this stage.
The claim against TfL is put squarely upon breach of statutory duty, under section 41 of the Highways Act 1980, to maintain the highway. At one time, the claimant also contended that TfL was liable for a breach of the separate statutory duty under s 150 to remove obstructions from the highway, but before the Judge it was conceded that no civil action lies for breach of that duty. Similarly, although common law negligence was pleaded against TfL, the claimant abandoned any reliance upon it.
As against Hounslow, the claimant's case is put wholly in common law negligence. The particulars of negligence (originally asserted against both defendants but now relied on only against Hounslow), are:
“(ii) failing to inspect and/or adequately inspect the said road;
(iii) failing to devise an adequate system of cleansing. The point at which the deceased lost control of his vehicle contained an unacceptable level of gravel/detritus. Although the defendants had in place a system for cleaning the main A4 road, this system did not include an area between the cycle way and the main road junction where the deceased's accident occurred;
(iv) causing or permitting the surface of the highway to be in a dangerous condition by reason of loose gravel and debris;
(v) failing to take any or any reasonable steps to clear the gravel/debris by sweeping/cleaning the highway;
(vi) failing to institute or enforce any or any adequate system for the inspection and maintenance of the highway;
(vii) failing to warn the deceased as to the nature of the road surface and in particular the presence of excessive gravel/debris;
(viii) failing to maintain and/or repair and/or keep clear the highway;
(ix) causing or permitting the road to become a trap to traffic using the said road;
(x) exposing the deceased to an unnecessary risk of injury.”
The high point of the claimant's case against Hounslow derives from evidence elicited at the inquest from its cleaning supervisor. This was to the effect that Hounslow periodically swept the “channels”, that is to say alongside the kerbs on the nearside and at the central reservation, but that the machines did not divert from the straight line in order to sweep the slivers of tarmac either side of the carpark entrance/exit.
TfL
The judge struck out the claim against TfL on the simple basis that the duty to maintain does not extend to a duty to remove surface-lying material, obstructions or spillages, whether or not they result in some danger. In my view that conclusion was inescapable. The law is very clearly established by the two leading authorities on such material. The first is the minority judgment of Lord Denning MR in Haydon v Kent CC [1978] 1QB 343. The second is the decision of the House of Lords in Goodes v East Sussex CC [2000] 1 WLR 1356, which is binding upon us, and in which the judgment of Lord Denning in Haydon was adopted and emphatically endorsed: see in particular the speech of Lord Hoffman. The duty imposed by section 41 is a duty to maintain the fabric of the road, including its substructure such as its drains. The removal of surface-lying material which creates a danger is not within the section.
That this is the law may at first appear outdated, or anomalous, or unfortunate. It is easy to think that where a serious accident has occurred because a danger was not removed from the highway, the authority responsible for that highway ought to be liable. That is especially so, since in fact highway authorities do usually undertake the cleaning of at any rate major roads, and since they have a statutory defence to a private law civil action for damages if they can demonstrate that they have taken all such care as was in all the circumstances reasonably required to secure that the highway was not dangerous (now section 58 Highways Act 1980). It is easy to find examples at the margins of the rule which appear anomalous, such as that debris blocking drains must be removed, because drains are part of the fabric of the road which must be maintained, whilst surface-lying debris does not have to be removed.
The reasons for the present legal position are set out very clearly in Haydon and in Goodes and it would not help to attempt here to re-state them in full. They boil down to a combination of the historical development of the duty to maintain highways and the extensive consequences of an absolute duty to remove all surface-lying material from all highways from motorways to country footpaths. In short, the original common law duty to maintain the highway was absolute but was limited to maintenance of the fabric of the road and did not extend to the removal of surface-lying material. The Highways Act 1959 and now the Act of 1980 do no more than give statutory effect to that same duty. When civil liability for damages for breach of the duty was first introduced by the Highways (Miscellaneous Provisions) Act 1961, it was realised that it ought not to extend to every breach of the absolute duty, but only to a breach which involved lack of reasonable care in all the circumstances. The statutory solution might well have been...
To continue reading
Request your trial
-
Mega Trucking Company Ltd v Highways England Company Ltd
...not extend to road signs, street furniture such as warning cones or barriers, or extraneous matter on the surface. (See Valentine v Transport for London & Another [2010] EWCA Civ 1358) It does, however, include the subsurface and 122 It is against this relatively uncontroversial legal back......
-
Mr John Thomas v Warwickshire County Council
...is not endangered by snow or ice". 66 The most recent decision at appellate level on this issue is Valentine v Tfl and another [2010] EWCA Civ 1358 2010 WL 4919800. This was an appeal by the claimant against a strike out of her claims arising from what was alleged to be an unsafe accumulat......