Wentworth v Wiltshire County Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE STUART-SMITH,LORD JUSTICE BELDAM |
| Judgment Date | 20 May 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0520-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0472 |
| Date | 20 May 1992 |
[1992] EWCA Civ J0520-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Lewis-Bowen, sitting
as a Deputy High Court Judge)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Stuart-Smith
and
Lord Justice Beldam
92/0472
MR. ROBERT REID QC and MS KATHARINE HOLLAND (instructed by Messrs Penleys, Gloucestershire) appeared on behalf of the Respondent (Plaintiff).
MR. MICHAEL DE NAVARRO QC and MR. BRADLEY MARTIN (instructed by Messrs Wansbroughs Willey Hargrave, Bristol) appeared on behalf of the Appellant (Defendant).
By writ dated the 27th November 1981 the respondent instituted proceedings against the appellant for breach of statutory duty in failing to repair a certain highway known as Ewins Hill Road. The damages claimed consisted wholly in financial loss, there being no suggestion of injury to persons or damage to property. The financial loss arose in this way. The respondent was a dairy farmer and his farm was served by the road. The survival of the farm depended on the ability of the Milk Marketing Board's tanker to use the road for collection of the milk produced by his herd. Owing to lack of repair the road became dangerous for use and the Board were thus unable to collect the milk as from the 10th January 1980.
On the 30th January 1991, His Honour Judge Lewis-Bowen sitting as a High Court Judge gave judgment for the respondent in the total sum of £77,409 and costs.
The appellants submit that the judge erred in holding them liable at all. If unsuccessful in that contention they challenge a comparatively small item in the award of damages.
Liability
For some years before the withdrawal of the Milk Marketing Board's collection the respondent had been in dispute with the appellants on the question of repair. The appellants denied that the road was a highway maintainable at the public expense. That it is such a highway and thus that the appellants were under and were in breach of a statutory duty to repair imposed by the Highways Act 1959 is not in issue. It was established by decision of the Crown Court on the 3rd November 1980 in proceedings initiated by the respondent under section 51(3) of the Highways Act 1959 (the 1959 Act). As a result of that decision the appellants repaired the road some nine months later but it was then too late to save the respondent's farm. The sole question is whether the respondent can claim for the economic loss which admittedly flowed from the breach. This depends upon the construction of certain provisions of the 1959 Act and of the Highways (Miscellaneous Provisions) Act 1961 (the 1961 Act) which, by section 16, is to be construed as one with the 1959 Act.
Prior to the 1959 Act no civil action for damages resulting from non-repair (non-feasance) lay against the inhabitants at large or their successors who were responsible for repair, although at common law an indictment based on public nuisance could be brought if the lack of repair was sufficiently serious.
An action for damages also lay for damages including financial loss directly flowing from obstruction to a highway.
The 1959 Act, as appears from its long title, was designed to consolidate with amendments earlier enactments relating to highways, streets and bridges and make consequential amendments to the common law. Part I created various highway authorities. Part IV deals with the maintenance of highways. It begins with section 38 which by subsection (1) abolishes the pre-existing duty with respect to the maintenance of highways, which lay upon the inhabitants at large of any area. The common law duty is thus swept away.
There then follow provisions creating or providing for the creation of categories of highways maintainable at the public expense. The first of such categories is by section 38(2) (a) any highway which immediately prior to the commencement of the Act was maintainable by the inhabitants at large of any area or maintainable by a highway authority.
I go next to section 44(1) which creates the statutory duty upon which the respondent founds his claim. It provides:
"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, be under a duty to maintain the highway."
Since, by section 295 "maintain" includes "repair" the duty is clear.
The next relevant, and in my view vital, section is section 59. Subsection (1) provides:
"After the commencement of this Act, no indictment shall be preferred in respect of neglect to maintain a highway."
Thereby the only pre-existing means of enforcing the duty to repair was removed. This must be coupled with the provisions of section 298 which, subject to section 89(1) to which I refer next, preserves from being affected by the Act the pre-existing exemption from liability for non-repair "available to a highway authority immediately before the commencement of this Act as the successor to the inhabitants at large."
Subject to section 89(1) therefore it would at this point appear that the new statutory duty was without teeth. The remedy by indictment had gone and the exemption for non-repair had been preserved. That subsection provides that cattle grids provided under the Act for a highway (and certain other works) "shall be maintainable by the highway authority for the highway: and they shall not be entitled to rely on any exemption from liability for non-repair available to a highway authority as the successor to the inhabitants at large". There is, however, still even in such case an apparent absence of teeth.
This is plainly intended to be cured by the provisions of section 59(2) to (10) which enable any person who alleges that a way or bridge is a highway maintainable at the public expense and is out of repair to establish those matters (if not admitted) by application to quarter sessions (now the Crown Court) and obtain an order that it be put in proper repair by the highway authority within such reasonable period as may be specified in the order. In cases where both matters are admitted a similar order may be made by a magistrates court. If the order is not complied with within the time specified the complainant must be authorised by the court to carry out such works as may be necessary to put the highway in proper repair and to recover any expenses reasonably incurred in carrying out the works so authorised from the highway authority as a civil debt. The Act thus provides a specific and very detailed means of enforcing the statutory duty which it has placed on the highway authority.
This in my judgment indicates that no other means of enforcement was intended by Parliament, see Doe v. Bridges [1831] 1 B & Ad 847 per Lord Herschell at page 859, Pasmore v. OswaldtwistleUPC [1898] AC 387 at page 394 and Lonrho Ltd. v. Shell Petroleum Ltd [1982] AC 173, per Lord Diplock at p 185. The indication is of course not conclusive for there are exceptions as appears clearly from Lord Diplock's speech in Lonrho and also from the speech of Lord Simonds in Cutler v. WandsworthStadium Ltd [1949] AC 398 at 407. If however the 1959 Act stood alone I would have no hesitation in concluding that, as a matter of construction, no other method of enforcement was available. It does not however stand alone, and it is necessary to see what is the effect of construing it as one with the 1961 Act.
Section 1(1) of that Act abolished the exemption of liability for non-repair which had been preserved, save as to cattle grids etc. by section 298 of the earlier Act, and section 1(5) repealed that section and also the concluding words of section 89(1) which had abolished the exemption in relation to cattle grids. The situation thus becomes one in which the highway authority is under a general duty to repair and has no exemption from liability for breach of that duty.
At the same time however, section 1(2) provided a defence to any action against a highway authority in respect of damage resulting from failure to maintain. That defence consisted in proof "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".
It is in my view clear from the nature of the defence thatit is an essential part of any claim for non-repair to establishthat the relevant part of the highway was dangerous to traffic. This is, indeed, well settled by authority, see Meggs v. Liverpool Corporation [1968] 1 WLR 689, Burnside v. Emerson [1968] 1 WLR 1490, and Lawman v. London Borough of Waltham Forest C.A. ( unreported C.A. transcript 1980, 025) amongst others. Further light is shed on the nature of the action contemplated by the provisions of section 1(3) which prescribes the matters to which the court is to have particular regard when considering a defence under section 1(2). They are five in number. The first three are of no particular significance but I regard the last two as important. They are:
"(d) whether the authority knew or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway.
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose what warning notices of its condition had been displayed."
Both of those provisions indicate that the contemplated...
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