England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT
(HIS HONOUR JUDGE SENNITT)

		Royal Courts of Justice Strand London WC2 Friday, 11th May 2001

Friday, 11th May 2001

1. LORD JUSTICE SIMON BROWN: Lord Justice Longmore will give the first judgment.
2. LORD JUSTICE LONGMORE: This is a renewed application for permission to appeal a decision of His Honour Judge Sennitt in Cambridge County Court in which he held that the defendants, the Cambridgeshire County Council, were liable for breach of duty as the highway authority and, although there is some challenge to this, also in common-law negligence to Mr Shoals, a motorcyclist who suffered injury after colliding with an unlit bollard on a traffic island in the middle of the A505 opposite the Imperial War Museum site at Duxford.
3. Mr Shoals was travelling westwards at about 11.00 at night when a rabbit ran into the path of the motorcycle. Mr Shoals braked and moved to the right into an area of white hatching separating the westbound part of the road from the eastbound part. The bollard being unlit, Mr Shoals only saw it when his headlights picked it out; he did not see that it was on an island. He diverted right but hit the kerb of the traffic island and was thrown off his motorcycle.
4. The judge held that the Cambridgeshire County Council was in breach of their duty to maintain the highway under section 41 of the Highways Act 1980 because the unlit bollard was part of the highway. The reason why the bollard was unlit was that some other road user at some time before had collided with a keep left signal facing those travelling eastwards on the road on the other side of the carriageway, and thus had broken the electric circuit which fed both that signal and the bollard.
5. The judge, having held that there was a breach of duty to maintain the highway, also held that he was not satisfied on the balance of probabilities that the highway 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.
6. Mr Weston has appeared before the Court this morning, and in an economical argument submits that there is a question of principle, namely whether street furniture is part of the highway so that if a bollard becomes unlit there is (as he puts it) no obligation of the county council in relation to that under the Highways Act. He reminds us that there is nothing actually in the definition of "highway" in relation to street furniture, although there are other regulations and statutes which give powers in relation to them.
7. That argument seems, to me at any rate, to be a hopeless argument. It would be ridiculous if something such as a bollard or a street sign which is supposed to be lit at night were not part of the highway for the purposes of the section 41 obligation. Street signs and bollards are there for the assistance of motorists and the idea that the local highway authority has no obligation to maintain them is, with respect, an impossible argument.
8. Mr Weston also submits that there is insufficient to justify a finding of negligence. He points out, correctly in the light of Diplock LJ's judgment in Griffiths v Liverpool Corporation, that in an action for common-law negligence the onus is on the plaintiff to prove duty of care, breach of that duty and causation, whereas under section 41 of the Highways Act there are merely the defences of which a highway authority may avail themselves, but the onus of showing that those defences apply is on the highway authority. In my judgment, even if there were anything in Mr Weston's point about street furniture, it would not avail him on this appeal because the findings of the learned judge are findings which relate as much to duty of care and breach of duty of care as to the defences under the Highways Act. The learned judge said that inspection of the bollard should have happened more than once every four weeks because of its particular position on the main road and he says whether that would have led to the want of repair being discovered one cannot say with any certainty but at least there would have been a much more likely prospect of it.
9. Any Court of Appeal faced with that is, in my judgment, most unlikely to say that that is not a sufficient finding in relation to duty of care in any event. So there would really be absolutely no point of any kind in giving Mr Weston permission to appeal in this case despite the attractiveness in which he put his short argument.
10. LORD JUSTICE SIMON BROWN: Whilst not disagreeing with my Lord's judgment with regard to section 41, I would prefer to rest my own supporting judgment on the alternative basis established by the judge below, namely the defendant's liability in any event for common-law negligence.
11. One way or the other, however, there is no worthwhile prospect of succeeding on this appeal. Therefore the application for permission is dismissed.
(Application for permission to appeal dismissed)