England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER AND CLACTON COUNTY COURT
(HIS HONOUR JUDGE BRADBURY)

		Royal Courts of Justice Strand London W2A 2LL
		21st February 1997

LORD JUSTICE BELDAM:

I will ask Lord Justice Otton to give the first judgment.

LORD JUSTICE OTTON:

1. The appellant, Mrs Ellen Rance, was injured in a road traffic accident on 5th February 1991 when she was driving her Peugeot 205 along Lower Dunton Road, Horndon, Essex. The defendants, now the respondents, the Essex County Council, are the highway authority for that road. It runs between the A127 and A13 trunk roads. It is an unclassified road and known as a secondary distributor road. She brought an action against the Highway Authority claiming damages for personal injury caused by their breach of statutory duty and negligence. She failed.
2. The Judge found that the accident occurred as a result of the following sequence of events. An unusually high volume of heavy goods vehicles had been using Lower Dunton Road from some time in December 1990 onwards. This was due to substantial construction works in the vicinity and an exit road which debouched on to Lower Dunton Road. As a consequence of this increased heavy vehicular activity, caused no doubt by the contractors and subcontractors arriving and leaving the site and taking with them large loads of soil and spoil from an excavation intended for a lake, the road had got into an unsatisfactory state. The Judge found that heavy traffic had regularly travelled off the metalled carriageway on to the grass verges and had thus caused ruts to develop in the verges immediately adjacent to the carriageway.
3. The width of the carriageway was some 14 to 15 feet. It was delineated by two white parallel lines which indicated the outer edge of the metalled surface of the road. The Judge was satisfied that a car of the type being driven by Mrs Rance could pass a lorry travelling in the opposite direction while both vehicles remained on the metalled carriageway, but there would only be some three feet or so between the respective offsides of the two vehicles.
4. He was satisfied that on 5th February Mrs Rance was driving at a speed of about 30 miles per hour, or perhaps a little faster. At this point the road was unrestricted for speed. He accepted also that Mrs Rance saw two lorries travelling towards her and that she steered to her nearside. It is an important finding that she was not forced to do so by the approach of the lorries, but that she elected to take that course.
5. He said in the course of his judgment at page 5 at letter A:

"I have heard evidence from experts in this trial that the ruts so caused may in places be three to four inches in depth. The rut does not extend into or through the white lines marking the extremity of the driving portion of the carriageway. But the rut may well in some parts have started to nibble away at the edges of the carriageway on the side of the white lines furthest from the normal driving area."

6. He also found and accepted Mrs Rance's account that her nearside wheels left the carriageway and went into the rut. She tried to steer back on to the carriageway but could not do so for a time, and then on succeeding, when she freed her wheels from the rut, her car shot across the road into a ditch on the other side of the road and hit a tree, whereby she suffered personal injury.
7. There was also evidence from several local residents which showed that the ruts themselves had caused difficulty to a number of drivers, that there was a general dissatisfaction amongst the local inhabitants as to the condition of the road, in particular because of the filthy state it had reached from the deposits of mud upon the road surface, and he found that the Council had failed to react or even register a number of complaints about the condition of the road.
8. In bringing her proceedings, the plaintiff attributes the accident to a failure by the defendants to maintain the highway pursuant to their statutory obligations set out in section 41, and negligence.

Section 41 provides:

"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."

9. The exceptions under sections (2) and (4) need not be considered.
10. Of more importance is the provision to be found under section 58, which provides:

"In an action against the highway authority in respect of damage resulting from their failure to maintain a highway maintainable at 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 part of the highway to which the action relates was not dangerous for traffic."

Subsection (2) provides:

"For the purposes of a defence under subsection (1) above the court shall in particular have regard to the following matters:-

(a) the character of the highway, and the traffic which was reasonably expected to use it;

(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the highway;

(d) whether the highway 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;

but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person ..."

11. When sections 41 and 58 are juxtaposed, a question arises as to what the correct approach of a court should be. It is sometimes called the chicken or egg situation. This anomaly or difficulty is, to my mind, authoritatively answered by a passage in Clerk & Lindsell 17th edition, chapter 18, paragraph 110:

"As a matter of evidence it has been said by Lord Denning MR, 'At the outset, however, in order to make a prima facie case, the plaintiff must show that the highway was not reasonably safe, ie that it was dangerous to traffic.' The plaintiff must therefore show that there was a dangerous condition, a failure to repair, and resulting damage. If he discharges that onus of proof, the defendant must prove reasonable care with reference to the statutory criteria."

12. Such a situation was contemplated in Rider v Rider [1973] 1 QB 505, where at page 514 Sachs LJ says:

"... it is in my judgment clear that the corporation's statutory duty under section 44 of the Act of 1959" (the precursor of the current statutory position) "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. Motorists who thus use the highway, and to whom a duty is owed, are not to be expected by the authority all to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers; some drivers may be inexperienced, and some drivers may find themselves in difficulties from which the more adept could escape. The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur."

13. Similarly in a decision of this court in Mills v Barnsley Metropolitan Borough Council, Lord Justice Steyn (as he then was), when considering the correct approach, said at page 292:

"For my part I find it a sterile exercise to make a comparison between the facts of the reported decisions in tripping cases and the facts of the present case. The principles laid down are clear. In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:

(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;

(b) the dangerous condition was created by the failure to maintain or repair the highway; and

(c) the injury or damage resulted from such a failure.

Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority's reliance on the special defence under section 58(1) of the 1980 Act, namely, that the authority had taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic. On this aspect the burden rests on the highway authority."

14. In the present case when addressing the question of causation the Judge said at page 9G:

"If there had been no rut adjacent to the carriageway, I can and do infer that the plaintiff's nearside wheels would have gone on to the grass verge and that she would have been able to extract herself off the verge back on to the carriageway without any undue difficulty. As it was, through being in the rut and through her efforts to extract herself, she suddenly found herself propelled across the road."

15. There is thus a clear causal link between the finding of the Judge as to the state of the road and that this state caused the bizarre behaviour of the motorcar after it emerged from the ruts. By that stage it was out of control. It is to be noted, however, that the learned Judge did not make any specific finding as to whether the condition of the road as he found it constituted a danger or that there was a breach of section 41 of the Highways Act.
16. In the respondents' notice it is stated at paragraph 8:

"The Judgment of the Learned Judge should be affirmed on the grounds set out in the Judgment and the Defendants will rely upon the following ground, namely, that on the findings made by the Learned Judge, it was open to him to find that the highway was not a danger to the public and thus it was not necessary to consider the Defence under section 58 ..."

17. Miss Jane Mishcon, in what I can only call a wholly admirable argument, urges this court to follow the logic of the Judge. She acknowledges that there were no such specific findings, but submits that by reason of the fact that the Judge went on to consider section 58, there is implicit in that cause a conclusion by the Judge that the highway was at the time not only dangerous, but constituted a breach of the statutory duty.
18. It is unfortunate that the learned Judge expressed himself in somewhat ambiguous terms. At page 11D he said:

"Even so the rut as part of the verge does form part of the highway. The council were under a duty to maintain it and repair needed to be done at the time of the accident."

However, at page 15 he said:

"On the evidence of the experts those ruts were not very deep. There are no previously recorded accidents arising from vehicles trying to extract themselves from the ruts, and the council had recognised the need to do future remedial work but had also concluded that, at the particular time when the construction works were going on, it was inappropriate for such work to be then carried out. In short it is a submission on behalf of the defendants that they had taken such care as in all the circumstances was reasonably required to secure that that part of the highway comprising this rut was not dangerous for traffic. I agree with those submissions. The council succeed on their special defence ..."

19. As I have stated, the judgment is somewhat ambiguous and it would have been helpful if the Judge had made specific findings on those particular primary issues. Certainly the plaintiff would have known whether or not her accident had been caused by a danger on the road, that is that the state of the road was foreseeably dangerous to reasonable drivers, as envisaged in Rider v Rider, and, moreover, that there was a specific finding whether there was a breach of an absolute duty created by section 41.
20. For my part, I am prepared to infer and conclude that the Judge did by implication make a finding that the road was dangerous, that is foreseeably dangerous to reasonable drivers, and that in its state of disrepair it constituted a breach of the statutory obligation. In those circumstances, it seems to me that if he had come to those conclusions it was necessary for him to consider section 58. If he had concluded to the contrary and found against the plaintiff expressly on those particular issues there would have been no need whatsoever for him to have considered section 58, because the action would have failed in limine.
21. I turn then to consider the statutory defence. In Griffiths v Liverpool Corporation [1967] 1 QB 374, Lord Justice Diplock at page 390 said as follows (referring to subsection (2) to the predecessor of the current section 58):

"Subsection (2) does not, in my opinion, make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by a danger on a highway. What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence -- the onus of establishing this resting upon it. A convenient way of expressing the effect of the subsection is that it does not qualify the legal character of the duty imposed by subsection (1) but provides the highway authority with a statutory excuse for not performing it.

But however this may be there are two crucial differences between a liability in negligence and the statutory liability of a highway authority under this section. To succeed in an action for negligence the plaintiff must prove, inter alia, (1) that the defendant has been guilty of lack of reasonable care and (2) that such lack of reasonable care was the cause of the injury to him. In an action under the statute against a highway authority for injury sustained from a danger on a highway the plaintiff need prove neither of these things in order to succeed. Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) is not available to it at all. Nor is it a defence for the highway authority to show that even had it taken all reasonable care this might not have prevented the damage which caused the injury. It may be that if the highway authority could show that no amount of reasonable care on its part could have prevented the danger the common law defence of inevitable accident would be available to it; but that is not relied on in the present case and it is not necessary for us to express a final conclusion upon it."

22. Needless to say, the defence of inevitable accident was not raised in the current case.
23. The appellant's argument is summarised succinctly at page 4 of the skeleton argument in the following terms:

"The judge, when considering Section 58, asked himself the question:

'Was it reasonable for the council to wait until the volume of heavy traffic had abated before repairing the damage to the ruts?'

He held that it was. That conclusion itself was probably unjustifiable, but in any event the judge asked the wrong question. The correct question was:

'Had the Council proved that it 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 to traffic?"

24. The answer to that question, it is submitted, is plainly in the negative. The evidence from a witness called by the Council was to the effect that they were familiar with the fact that there was a publication of good practice to be applied by highway authorities, but one of the persons responsible for following that code of practice was not familiar with its contents. The guide recommends monthly inspections for this type of road. The last foreman's inspection of this stretch of road occurred some 18 months prior to the accident on 5th February 1991. It is also said that the same guide makes it clear that the Council's principal argument, namely that it was reasonable to do nothing about the ruts so long as the metal carriageway was in good repair was not tenable.
25. It was further submitted that the Council had no system for registering complaints by members of the public until January 1991, and, even when instituted, it was evident that that system was not working in that a number of complaints were made but not recorded, and the Judge made a finding to that effect.
26. The arrangements for the implementation of works considered necessary to highways were plainly unsatisfactory, since it took the Council until late 1992, that is some 18 months after this accident, to carry out the necessary remedial work. The code is entitled "The code of good practice for highways maintenance". It is prepared by the Local Authorities Association by a joint study team of technical and financial representatives from a cross-section of highways authorities. It was first published in 1983 and updated at regular intervals thereafter. At the time in question at paragraph 1(a)(iv) provided for "Edge deterioration Warning levels for edge deterioration of unkerbed roads." There are then various categories of roads to which different standards apply. It is common ground that this was a road which was a secondary feeder road or secondary distributor, which came under category B3. Edge deterioration severities are described as follows:

"Severity 2 Where severe over-riding with or without rutting or potholing of the edge of the verge is present, either alone or with deterioration of the edge of the carriageway, for severity 1."

27. It is provided that if that condition pertains then the treatment called for is one of patching and not resurfacing or any other more substantial work.
28. At 4(b) "Surveys and inspections, suggested intervals", it is provided that for secondary distributors the inspection should be carried out every year on an annual basis with a footnote:

"Where there are long intervals between safety inspections, actions will be necessary immediately following any public complaint."

29. Not surprisingly, Miss Mishcon relies heavily upon that passage as setting the standard that must be applied to a highway authority and within which the Judge was required to examine and determine whether or not the defendants had discharged their duty and burden of proof. She submits that the action which was taken and the surrounding evidence shows that the respondents did not do so.
30. The Judge when giving his ruling said as follows:

"On the evidence of the experts those ruts were not very deep. There are no previously recorded accidents arising from vehicles trying to extract themselves from the ruts and the council had recognised the need to do future remedial work but had also concluded that, at the particular time when the construction works were going on, it was inappropriate for such works to be then carried out. In short it is a submission on behalf of the defendants that they had taken such care as in all the circumstances was reasonably required to secure that that part of the highway comprising this rut was not dangerous for traffic."

31. In my judgment, the Judge did apply the correct principles as adumbrated in Griffiths and posed the correct question. He then went on to answer it in a way which might have been fuller in its reasoning, but he reached a conclusion which it was open to him on the evidence before him and which indeed supported his conclusion. It is true that the code of practice sets down stringent obligations upon highway authorities, but it must be borne in mind that they are recognised as guidelines only and do not impose a rigid regime for the inspection and maintenance of roads. It does not follow that a breach of the code, however technical, automatically creates a situation of negligence on the part of the highway authority, or, conversely, as Miss Mishcon seemed to suggest, deprives them of the benefit of that defence even though such a breach was not causative of the accident complained of.
32. It may be that their system of recording complaints was defective. That would only be relevant if the highway authority tried to prove that they were unaware of the existence of the danger in question. Here it was clear that they knew about the existence of the ruts, they had discovered it for themselves, and that they were monitoring the ruts on a frequent basis. Their inspectors and others within the relevant department were frequent users of the road and were aware of the existence of the ruts, the presence of mud upon the road and the fact that the ruts were getting deeper. They were also aware that some complaints were being made, albeit primarily targeted at the presence of the mud upon the road to such extent that there was danger of skidding. There can be little doubt that the local authority did consider the situation, kept it under observation and made a deliberate decision that in the light of the progress of the construction works any remedial work should be held back until the heavy construction work had been completed, and that they then could reinstate or repair the ruts at that time.
33. The Judge took into account that the road was a secondary feeder and came to the conclusion that he accepted the defendant's explanation and that in so doing they had discharged the burden of proof and could avail themselves of the statutory defence.
34. In those circumstances it seems to me that it is impossible for the appellant to say that there was no evidence upon which the Judge could have reached his conclusion or that his conclusion was in some way Wednesbury unreasonable. The test is whether or not there was material evidence which enabled him to come to that conclusion, and in my judgment there was. He was entitled to reach the conclusion that he did based on the evidence before him, depending upon how he evaluated it. There is no basis, in my view, for disturbing that part of the Judge's finding.
35. Finally, it was suggested that issues of contributory negligence arise. As there is no primary liability attaching to the highway authority there is no need for any consideration as to whether or not the driving by the plaintiff contributed to the accident.
36. In those circumstances I would dismiss this appeal.

LORD JUSTICE BELDAM:

37. I agree. The appellant's accident occurred at Lower Dunton Road at Horndon in Essex, which is just under five metres wide. It has grass verges for most of its length. It is described in the jargon of the modern highway authority as a "secondary distributor", since it is a road used by traffic passing from one classified to another classified road. The metalled area of the carriageway was in good repair, and its extent was marked by white lines, which the Judge found had not been obscured by mud or other dirt on the road. However, because it had been used by lorries working for contractors, which had from time to time left the metalled section of the road, the verges had been worn away, and in the place where the accident occurred there was, on the appellant's nearside, a rut approximately three to four inches deep which had been worn by the contractors' vehicles. Her nearside wheels apparently went into this rut after leaving the carriageway, for no particular reason that the Judge could discern.
38. She claimed that the highway was not properly maintained or repaired by the respondents, the Essex County Council, who conceded that the verge was, for this purpose, to be regarded as part of the highway. As my Lord has said, they were aware of the condition of the verges and had decided to wait until these heavy contractors' lorries had finished their journeying before filling in the ruts at the edge of the road.
39. The essence of the duty of the highway authority under section 41 of the Highways Act 1980 is to maintain, which includes repair, the highways at the public expense, and when an accident occurs which is alleged to have been caused by a lack of repair, the proper approach to the evidence was described in the case of Mills v The Barnsley Metropolitan Borough Council [1992] 1 PIQR at page 291 by Lord Justice Steyn. He said at page 292:

"The principles laid down are clear. In order for a plaintiff to succeed against a highway authority in a claim for personal injury for failure to maintain or repair the highway, the plaintiff must prove that:

(a) the highway was in such a condition that it was dangerous to traffic or pedestrians in the sense that, in the ordinary course of human affairs, danger may reasonably have been anticipated from its continued use by the public;

(b) the dangerous condition was created by the failure to maintain or repair the highway; and

(c) the injury or damage resulted from such a failure. Only if the plaintiff proves these facta probanda does it become necessary to turn to the highway authority's reliance on the special defence under section 58(1) of the 1983 Act, namely, that the authority have taken such care as in all the circumstances was reasonably required to secure that the particular part of the highway was not dangerous to traffic. On this aspect the burden rests on the highway authority."

40. In the present case the Judge's approach to the question, which my Lord has quoted, was full of common sense, if perhaps shorter in legal analysis than the approach suggested by Lord Steyn.
41. Subjected to the careful analysis of Miss Mishcon, it is said that the effect of this judgment is that the plaintiff should have succeeded because (a) the Judge must have found that the road was not in a safe condition, otherwise (b) he would not have had to consider whether the respondent had proved that it had taken such care as in all the circumstances was reasonably required to secure that it was not a danger to traffic. This approach is persuasive and becomes more persuasive when she adds, "and in this case the lack of repair was known to the respondents and they had done nothing." Therefore, she argues, they could not have discharged the burden upon them under section 58 of the 1980 Act of showing the requirements.
42. It is important to notice that section 58(2) requires the court in particular to have regard to certain matters in deciding whether the authority has in fact discharged the burden of showing a defence under section 58: First, the character of the highway and the traffic which might reasonably be expected to use it; secondly, the standard of maintenance appropriate for a highway of that character; thirdly, the state of repair that the reasonable person would have expected to find the highway in; and, fourthly, whether the highway authority knew or could reasonably have been expected to know that the condition of that part of the highway would be likely to cause danger to users of the highway, and where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what notices of its condition had been displayed.
43. Applying those considerations to this case and observing the nature and condition of this road from the photographs which were before the Judge, it seems to me that this road was not in an unexpected condition for a road of its type. The presence of worn verges with ruts at either side is not unusual in the roads in our country districts, particularly now that they are used by many vehicles for which they are quite unsuitable in many instances.
44. The effect of the Judge's judgment, in my view, full of common sense as it was, was that the local authority took a reasonable stance when aware of the condition of the verges. It took the view that there was no danger likely to be caused to traffic keeping a reasonable lookout with the presence of the white lines on the edge of the road when the actual metalled surface was not itself in disrepair. By filling in the ruts at the edge of the road they would be undertaking a Sisyphean task and until the lorries ceased to travel up and down that road they would be exhausting their limited resources in filling these ruts day after day. In my view there was clearly material on which the Judge could take the view, as he undoubtedly did, that the attitude of the local authority was reasonable in all the circumstances. It is to be noted that that is the underlying requirement under section 58 of the 1980 Act, because they are only required to take such care as in all the circumstances is reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.
45. For those reasons therefore, which, but for the excellent arguments of Miss Mishcon, I would not have added to those given by my Lord, I agree with his conclusion.
ORDER: Appeal dismissed with costs.