Vernon Knight Associates v Cornwall Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Sir Stanley Burnton,The Master of the Rolls |
| Judgment Date | 30 July 2013 |
| Neutral Citation | [2013] EWCA Civ 950 |
| Docket Number | Case No: A1/2012/2888 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2013 |
[2013] EWCA Civ 950
The Master of the Rolls (Lord Dyson)
Lord Justice Jackson
and
Sir Stanley Burnton
Case No: A1/2012/2888
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY, TECHNOLOGY AND
CONSTRUCTION COURT
HIS HONOUR JUDGE HAVELOCK-ALLAN QC
1BS90303
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Stead (instructed by Wansbroughs Solicitors) for the Appellant
Mr William Vandyck (instructed by Berrymans Lace Mawer) for the Respondent
This judgment is in six parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The law,
Part 6. Decision.
This is an appeal by Cornwall County Council ("the council") against a decision that it is liable for damage caused by floodwater escaping from one of the roads in the county. The principal issue is whether the judge applied too high a standard of care, without having regard to all the relevant factors.
The claimant is the owner of a holiday village in Cornwall. This suffered flood damage on two occasions, namely in November 2006 and September 2008.
I shall refer to the Highways Act 1980 as "the 1980" Act". Section 41 (1) of the 1980 Act provides:
"Duty to maintain highways maintainable at public expense.
(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway."
Section 58 (1) of the 1980 Act provides:
"Special defence in action against a highway authority for damages for non-repair of highway
(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."
The purpose of sections 41 and 58 of the 1980 Act is to keep the highway safe for those who travel along it. Maintenance of the highway includes not only filling in potholes and so forth, but also ensuring adequate drainage. This is illustrated by Department for Transport, Environment and the Regions v Mott MacDonald Ltd [2006] EWCA Civ 1089, in which the Court of Appeal held that a highway authority could be liable for accidents caused by standing water on the highway.
Sections 41 and 58 of the 1980 Act do not impose any duty on highway authorities to protect nearby property owners against flood damage. Such a duty arises, if at all, under the common law. The only relevance of these statutory provisions in the present litigation is that they establish the highway authority's duty to maintain the highways, including the associated drains.
Both the witnesses and counsel in this case have used the word "hotspot" to describe a place where there is a high risk of flooding. I shall use the word "hotspot" in the same sense.
After these introductory remarks, I must now turn to the facts.
The claimant owns Honicombe Manor, St Ann's Chapel, near Callington, Cornwall. This property was formerly a manor house, but was developed into a holiday village during the 1970s and 1980s. At the northern edge of the holiday village there is a stone wall which runs for some distance and then stops. After the wall ends there is a line of trees. A road runs along the northern boundary of Honicombe Manor, which the council has designated C0250015. I shall refer to it as "Honicombe Road".
To the north of Honicombe Road is an area known as the Donkey Park. The whole of this area overlooks the Tamar Valley and slopes down from north to south. Therefore, unless obstructed or diverted, after heavy rainfall water is liable to flood from the Donkey Park onto Honicombe Road and from there into the holiday village.
In one section of Honicombe Road there is a dip. The bottom of this dip coincides with the point where the boundary wall of the holiday village ends. As a consequence surface water running off the Donkey Park tends to collect at the bottom of the dip. If that water is not carried away by drains, after it reaches a certain depth the water will surge past the end of the wall and into the holiday village.
In or about 2000 the council installed a series of drains, gullies and a catchpit in the dip. These were and are sufficient to carry away all water which may collect there. However, these drains and gullies are not effective if the gratings through which water should enter become blocked with leaves, sticks and other debris. When the gullies are "fleeced over" is this way flooding is liable to occur.
In order to discharge its duties under section 41 of the 1980 Act the council employs a company known as "CORMAC" to carry out road maintenance. CORMAC in turn provides numerous maintenance teams, each with responsibility for a defined area. CORMAC has assigned responsibility for the St Ann's Chapel area to a rural maintenance team known as Gang 606. At all material times the charge hand of Gang 606 was Mr Clive Olver. Mr Olver worked with one assistant. The area for which Gang 606 was responsible comprised about 12 square miles and 150 miles of road.
Gang 606, like other rural maintenance teams, carried out cyclical maintenance. In other words, they visited each stretch of road in turn and carried out necessary maintenance work. Whenever it was necessary to do so, Gang 606 left off their routine work and went to deal with the emergencies or serious defects (known as "category 1 defects").
CORMAC and the rural maintenance teams were not left entirely to their own devices. Officials from the council's highway department oversaw the work which CORMAC carried out. The council also employed safety inspectors, who checked every road in the county. The safety inspectors drew CORMAC's attention to all defects which they discovered. They classified serious defects as "category 1". These required remedial action with 24 hours.
Having outlined the general arrangements made by CORMAC and the council, let me now turn to the events giving rise to the present claim. On Friday 24 th November 2006 there was exceptionally heavy rainfall during the day. By 7 p.m. in the evening more than 25 millimetres of rain had fallen. Over the next five hours 38.8 millimetres of rain fell. There were also high winds. BBC online news report at 4.20 p.m. referred to torrential rain and flooding in the Callington and Launceston area. The gullies in Honicombe Road were blocked with leaves and debris. These had collected during the six week period since the most recent visit by Gang 606. Because the gullies were blocked, the rainwater could not escape. The dip in the road became flooded. During the evening flood water surged into the holiday village causing extensive damage. Mr Morris, the manager of the holiday village, telephoned the council at 7.45 p.m. and reported the incident.
Although Mr Olver was not on standby duty that night, he was called by his supervisor and asked to deal with a number of flooding incidents. Mr Olver arrived at Honicombe Road at about 9.45 p.m. He waded into the swirling waters and succeeded in clearing the debris from the gratings over the drains. At once the flood started to abate and the waters steadily drained away.
The flood damage caused to the holiday village on 24 th November 2006 was subsequently quantified at £123,391.41. The claimant notified the council of its claim.
The second incident occurred on Thursday 4 th and Friday 5 th September 2008. There was heavy rainfall on the Thursday. By 3 p.m. in the afternoon 19.2 millimetres of rain had fallen. During the night the dip in Honicombe Road became flooded. This was because leaves and debris prevented water escaping into the gullies. Once again flood water poured into the holiday village. Fortunately on this occasion the damage was less severe. It has been quantified at £18,233.77.
The council's records of road maintenance during 2008 have been lost. It appears, however, from Mr Olver's diary that Gang 606's last maintenance visit to Honicombe Road before the flood was in early July 2008.
The claimant maintained that the council was at fault for allowing floods to develop in November 2006 and September 2008. Accordingly the claimant brought the present proceedings in order to recover its losses.
By a claim form issued in Birmingham County Court on 3 rd December 2010 the claimant claimed damages against the council for losses sustained during the two floods. The claimant pleaded that the council was in breach of its duty under section 41 of the 1980 Act and that the council was liable both in negligence and in nuisance for the escape of water.
The council denied liability, averring that it had taken all reasonable steps to prevent flooding. The council also put forward a plea of contributory negligence, although it subsequently abandoned that plea.
The action came on for trial in the Bristol Technology and Construction Court before His Honour Judge Havelock-Allan QC during October 2012. Mr Morris gave evidence for the claimant. Mr Olver and a number of council officials gave evidence for the defence.
It was elicited from Mr Morris during cross-examination that before November 2006 the...
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Table of Cases
...84 Vasiliou v Secretary of State [1991] 2 All ER 77, 61 P & CR 507, [1991] 1 PLR 39, CA 77 Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950, [2013] 3 EGLR 69, [2013] BLR 519, [2013] All ER (D) 408 (Jul), CA 83 Walsh v Oates [1953] 1 QB 578, [1953] 2 WLR 835, [1953] 1 All ER 9......