Court of Appeal in Northern Ireland Decisions

Madden V Department of the Environment for Northern Ireland [2003] NICA 2(1) (10.January.2003)

Ref: COGF3813

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

________

BETWEEN:

RHONDA MADDEN, A MINOR, BY PAUL MADDEN,

HER FATHER AND NEXT FRIEND

(Plaintiff) Appellant;

-and-

DEPARTMENT OF THE ENVIRONMENT FOR NORTHERN IRELAND

(Defendant) Respondent.

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Before: CARSWELL LCJ, NICHOLSON LJ and COGHLIN J

COGHLIN J

1. I gratefully acknowledge and accept the account of the facts giving rise to this appeal which has been set out in the judgment delivered by the learned Lord Chief Justice. I respectfully agree with the learned Lord Chief Justice and Nicholson LJ that this appeal should be allowed for the reasons which they have stated in the course of their judgments and I would simply add the following observations of my own.
2. If the interpretation of the Roads (Northern Ireland) Order 1993 (the "1993 Order") for which the respondent contends is correct the result will be that a pedestrian could maintain a cause of action in respect of the danger constituted by the absence of the missing toby lid but precisely the same hazard would not found a cause of action if it was the cause of injury sustained by a person in a wheelchair, a young child on a tricycle or scooter, a young person on a skate board or a person proceeding along the pavement on roller blades or roller skates. The respondent would be under a duty to prevent injury to a person with impaired vision (Haley v London Electricity Board [1965] AC 778) or to a pedestrian who had become infirm through age but would owe no such duty to a person disabled to such an extent as to be confined to a wheelchair. By contrast, Article 127 of the 1993 Order specifically requires the respondent to have regard to the needs of the blind and disabled when executing works in a road or a street.
3. It seems to me that, in interpreting the 1993 Order, the Court should seek to avoid a construction which produces anomalous, illogical, unjust or inconsistent results.
4. In Suffolk CC v Mason [1979] AC 705 Lord Diplock said, at page 709:

"At common law highways are of three kinds according to the degree of restriction of the public rights of passage over them. A full highway or 'cart way' is one over which the public have right of way

(1) on foot;

(2) riding on or accompanied by a beast of burden; and

(3) with vehicles and cattle.

A 'bridle way' is a highway over which the rights of passage are cut down by the exclusion of the right of passage with vehicles and sometimes, though not invariably, the exclusion of the right of drift way, ie. driving cattle, while a footpath is one over which the only public right of passage is on foot."

A "footpath", which is an independent highway in its own right (Derby CC v Matlock Bath Scarthin Nick UDC [1896] AC 315) is to be distinguished from a "footway". The latter, as defined in the Order of 1993 means "… a way comprised in a road which also comprises a carriageway, being a way over which the public have a right of way on foot only." A similar definition appears in Section 329(1) of the Highways Act 1980 (the "1980 Act"). Both the Order and the Act contain a similar definition of "carriageway" which means "… a way constituted or comprised in a road being a way over which the public have a right of way for the passage of vehicles." It seems to me that the clear intention of Parliament in employing such a definition was to ensure that while members of the public on foot were free to use the carriageway component of a road when it was safe to do so, given the presence of vehicles and other forms of transport, they should also have reserved for them a safe means of passage to and fro from which vehicles would be excluded.

5. Indeed, the Act of 1980 under the sub-title "Safety Provisions" specifically included the following section:

"66.-(1) It is the duty of a highway authority to provide in or by the side of a highway maintainable at the public expense by them which consists of or comprises a made up carriageway, a proper and sufficient footway as part of the highway in any case where they consider the provision of a footway as necessary or desirable for the safety or accommodation of pedestrians …."

6. There does not appear to be any legislative provision in Northern Ireland which is the direct equivalent of Section 66 of the Highways Act 1980. However, in my opinion, there is no reason in logic or law why the same term, defined in the same manner in legislation in each jurisdiction, should not be construed in the same way namely as part of a road, distinct from a carriageway, upon which pedestrians, including the young and the disabled, may pass and re-pass in safety.
7. I am not persuaded that, in passing the 1959 and 1961 highways legislation in England and Wales and the Roads (Liability of Road Authorities for Neglect) Act (Northern Ireland) 1966 in Northern Ireland, it was also the intention of Parliament to strictly limit the class of persons who could benefit from the abrogation of the rule of law which operated to exempt a road authority from liability for non-repair of roads or highways exclusively to persons passing and re-passing over a footway on foot. In a case from an age which has long since passed away Byles J directed a jury in R v Mathias (1861) 2 F&F 570 at 573 that "The easement in this case is a public right of 'footway'. But it is not easy to furnish a definition of that word. It cannot certainly be taken literally." To construe the legislation in such a fashion in the 21^st century would, in my view, result in needless inconsistencies and anomalies and generate unnecessary feelings of unfairness and injustice in the minds of the general public.
8. Accordingly, in the absence of any evidence that she was interfering with the right of the general public to pass and to re-pass along the footway of Laurel Way, Strabane, I do not consider that the plaintiff, travelling upon her roller blades, was a trespasser.
9. If I am wrong about this conclusion and, at the material time, the plaintiff was in fact a trespasser, I respectfully agree with the opinion of the learned Lord Chief Justice that the wording of Article 8(1) of the 1993 Order imposes a duty owed to all road users, trespassers or otherwise.
10. In the circumstances, I also would allow the appeal and would be in favour of remitting the action to the learned trial judge for the purpose of assessing damages, determining the extent of any contributory negligence and entering judgment for the appellant for the appropriate figure.