Highway Maintenance:
The Case of DETR v Mott Mouchel (1) Amey Mouchel (2) and Cornwall (3).  

The 2006 case of DTER v  Mott MacDonald and Mouchel and Cornwall County Council turned onthe interpretation of many previous cases, including Burnside and Emerson (1968),  Thoburn v Northumberland (1999),   Goodes v East Sussex(2000)  and   Gorringe v Calderdale MBC (2004).

What had happened in Burnside v Emerson was that an accident occurred on a road when a car being driven by Emerson ran into a pool of water and swung into the path of a car being driven by Burnside.  The highway authority for the road on which the accident occurred was the second defendant.  Lord Denning MR gave the leading judgment.  He said,

“In the old days, the highway authority was never liable in a civil action for non-feasance in not repairing a road.  Even if they put in a system of drainage which turned out to be inadequate, they were not liable for the failure of the system.  That was held to be non-feasance (see Burnton v West Suffolk (1960)).

That law has been altered by the Highways (Miscellaneous Provisions) Act 1961 which must be read [at the time of this 1968 judgement] with the Highways Act 1959.  Under those acts, the rule exempting a highway authority for non-feasance was abolished.  There is a duty on the highway authority to ‘maintain’ the highway; and maintain includes ‘repair’.  If it is out of repair, they fail in their duty; and if damage results, they may be made liable unless they prove that used all reasonable care.  This action involves…:

First: [that] the plaintiff must show that the road was in such a condition as to be dangerous for traffic.  In seeing whether it was dangerous, foreseeability it is an essential element.  The state of affairs must be such that injury may reasonably be anticipated to persons using the highway”….

Second: [that[ the plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair, the highway.  In this regard, a distinction is to drawn between a permanent danger due to want of repair and a transient danger due to the elements.  When there are potholes or ruts in a classified road which have continued for a long time un-repaired, it may be inferred that there has been a failure to maintain.  When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is no evidence for a failure to maintain.  Lindley J said in 1880 in Burgess v Northwich Local Board (1880); “an occasional flooding, even if it temporarily renders a highway impassable, it is not sufficient to sustain an indictment for non-repair”.  So I would say that in an icy patch in winter or an occasional flooding at any time is not in itself evidence a failure to maintain.  We all know that in times of heavy rain highways do from time to time get flooded.  Leaves and debris and all sorts of things may be swept in and cause flooding for a time with any failure to repair at all”;

Third: [that] “if there is a failure to maintain, the highway authority is liable prima facie for any damage resulting there from.  It can only escape liability if it proves that it took such care as in all the circumstances was reasonable.  And in considering this question, the court will have regard to the various matters set out in section 1(3) of the Act of 1961”.

In Mitchell v DfT and Mott Macdonald in the High Court this year, counsel for Mott Macdonald contended that, as the law has developed, it was clear that a highway authority is only liable if it fails to repair and to keep in repair the surface of the highway and that the Court of Appeal was wrong in Burnside v Emerson to hold, in so far as it did hold, that the duty extended to providing an adequate system of drainage in the sense of making sure there was a system.   (See Stovin v Wise (1996).) 

The opposing argument in the High Court was that Burnside v Emerson was a drainage case and Goodes v EastSussexCounty Council, Gorringe v Calderdale Metropolitan Borough Council or Thompson v HampshireCounty Council were not. 

The Court of Appeal considered the case in July 2006. 

The highway authority had settled the original claims and was now pursuing the maintenance agents for recovery of the monies thus expended.  The essence of the appeal case was this:  Was there a breach of the duty in section 41(1), when the accidents were caused by standing water on the highway, or was it the case that section 41 did not encompass a duty to maintain highway drains?

This is what Carnwath LJ found:

Burnside v Emerson had been good law for nearly 40 years and had been applied in the Court of Appeal as recently as 1999 in Thoburn v Northumberland. 

On the facts of each case, there were drains serving the highways.  Those drains were however blocked (on a longstanding basis) by silt, debris or vegetation and the resultant dangerous standing water on the road was a material cause of each accident.

This case can be split into two issues:  The surface issue and the repair issue.

• The surface issue.  Was the section 41 duty restricted to the surface upon which the passers-by pass by?

• The repair issue.  If there is a duty to maintain the drains, does it extend beyond maintaining their physical integrity to clearing their blockages?

Lord Denning in Burnside had emphasised the important distinction between transient dangers caused by the elements (which are not in themselves evidence of “disrepair”)  and longer – term problems (which are).

The three respondents in this appeal argued that Burnside is no longer binding on the Court of Appeal; i.e. that it “cannot stand” with the House of Lords’ decision in Goodes. 

Carnwath LJ looked at Lord Dennning’s definition of ‘repair’ in Haydon v Kent, which can be interpreted as relating only to highway surfaces, but then that case was only about highway surfaces, so that restriction was not surprising.  The High Halden case was more helpful, because that was about an unsurfaced road.  The duty to repair in High Halden related to “the road” not merely to the surface of it.   And there was nothing in the subsequent cases to override that view.  The duty to repair is not confined to the surface of the highway.

Lord Carnwath was supported in this view by the House of Lords case of Sandgate UDC v Kent CC (1898), which was about an the costs of maintaining an esplanade adjoining  a highway and the sea wall and groynes, which had been built to protect it from inundation.  Lord Halsbury said

“It was argued before the arbitrator that in point of law the expenses, as regards that part, were not recoverable because it was not part of the main road.  To my mind that contention is absurd.  Is it common sense to say that, where the obligation is to maintain the road and keep it in repair, you can by neglect, allow that duty to be so disregarded that in time the road may be washed away, so that your liability or obligation ceases? Such a proposition is, to my mind, absolutely monstrous.  The obligation at common law, and the same obligations have been handed on to the various bodies which in turn have received by statute the obligations and duties in respect of roads, is absolute, that they must keep in repair the roads in their parish.  Can anything be more clear than this, that the obligation is absolute in the first instance on the proper body whoever it be?...

Then the proposition appears to be this, that if you take a main road, not merely the via trita, (literally, “the trodden way”) but that part of it which is said to be dedicated to the public, your jurisdiction must be limited to, and does not go an inch beyond that which is the highway.  If that be so, if you want to cut a gutter to prevent the road from being flooded, or to take a culvert under it, where is your culvert to start?  Have you no jurisdiction to dig a hole to allow the water to go through the culvert, so as to preserve the road?  The truth is that you might put forward half a dozen hypotheses to show that such a construction of the law would reduce the whole thing to an absurdity, and render the administration of the road authority absolutely impossible I have no hesitation in saying that, assuming a thing to be necessary for the preservation of the road, and assuming that the local authority is under obligation to keep up that road, the law of England is that you shall keep up that road by whatever means are appropriate and necessary to do it.”

Later, dealing with the repair of the groynes, he specifically rebutted the contention that the word “maintenance” had no independent meaning:

“Then the proposition is this.  You cannot do anything of this sort to maintain the road; you must allow it to go out of repair each year, although that would involve extraordinary and unnecessary expense to the parish or local body, whatever it might be; you must do that because your only power is to repair the road.  In that argument I think that the word ‘maintenance’ appears to have escaped the attention of those so arguing: the maintenance of the road is quite as much a part of the duty as the ‘repair’…”

Conclusion: The Court of Appeal held that Burnside was and is good law.  The DETR appeal was allowed.