Court of Appeal in Northern Ireland Decisions

Madden V Department of the Environment for Northern Ireland [2003] NICA 2(3) (10 January 2003)

Ref: CARC3788

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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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

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CARSWELL LCJ

1. This is an appeal from a decision of Sheil J given in the Queen's Bench Division of the High Court on 19 April 2002, whereby he dismissed the appellant's claim for damages and gave judgment for the respondent Department. The action arose out of an injury sustained by the appellant when rollerblading on the footway of a public road. The judge felt obliged by authority to hold that the respondent Department, the road authority responsible for maintenance of the road, did not owe any duty of care to the appellant. In this appeal we have to consider the correctness of that ruling and the liability of a road authority to various types of user on different parts of a road.
2. On the afternoon of 28 January 1997 the appellant, then aged 8 years, was rollerblading with another girl on the footway of a public road, Laurel Way, Strabane, when she tripped and fell, sustaining a laceration to her lip and grazing of the knees. The judge found that she fell because her rollerblade caught in a hole in the footway. That hole was the site of a toby or watercock, whose lid was missing. It was not in dispute that this defect would have made the footway dangerous for pedestrians, and the respondent did not seek to rely upon the statutory defence afforded by Article 8(2) of the Roads (Northern Ireland) Order 1993 (the 1993 Order).
3. Sheil J held, in dismissing the appellant's claim for damages, that he was obliged to follow the decision of this court in Ingram v Department of the Environment (1993, unreported), in which it was held that the road authority was under no duty to make safe a pavement as a place of recreation or a playground. I shall return to consider this decision later in this judgment, but before I do so I wish to examine the principles involved in the determination of cases such as the present.
4. At common law duty to maintain a highway fell, subject to certain exceptions, upon the inhabitants at large of the parish in which it was situated. The remedy at common law for failure to repair was an indictment based on public nuisance. If, however, a private individual suffered damage as a result of the highway being out of repair he could not bring an action against the inhabitants at large if the lack of repair was due to the mere failure of the parish to maintain the highway (non-feasance) rather than to negligent acts of repair or other positive acts taken with respect to the highway (misfeasance): Sauvain, Highway Law, 2^nd ed, paragraph 5.01; Charlesworth & Percy on Negligence, 10^th ed, paragraph 9-39.

5. The Department of the Environment, now the road authority for Northern Ireland, eventually succeeded to the liability of the inhabitants of the parish to maintain roads, but its predecessors as road authorities had the benefit of this historic immunity until the enactment of the Roads (Liability of Road Authorities for Neglect) Act (Northern Ireland) 1966 (the 1966 Act), the analogue of the Highways (Miscellaneous Provisions) Act 1961 in England. The Roads (Northern Ireland) Order 1980 constituted the Department as road authority, imposed on it a statutory liability to maintain all roads and re-enacted the material provisions of the 1966 Act.
6. The liability of the road authority is now governed by the 1993 Order. Several material definitions are contained in Article 2 of the Order. "Road" is defined as meaning –

   "a public road, that is to say a road which is maintainable by the Department, and includes –

   (a) a road over which the public have a right of way on foot only, not being a footway;

   (b) any part of a road; and

   (c) any bridge or tunnel over or through which a road passes;"

   A road, unless it is a footpath, will contain a carriageway and, normally in urban areas, will also have at least one footway. The definitions of these parts of a road are as follows:

   "`carriageway' 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;

   … `footway' 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;"

   The duty to maintain roads is contained in Article 8, which reads:

   "8.-(1) The Department shall be under a duty to maintain all roads and for that purpose may provide such maintenance compounds as it thinks fit.

   (2) In an action against the Department in respect of injury or damage resulting from its failure to maintain a road it shall be a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove –

   (a) that the Department had taken such care as in all the circumstances was reasonably required to secure that the part of the road to which the action relates was not dangerous for traffic; or

   (b) that the injury or damage –

   (i) resulted from works (other than works by or on behalf of the Department) carried out on or under that part of the road to which the action relates; and

   (ii) resulted from an event which occurred before the completion of the re-instatement or making good of that part of the road in accordance with any relevant requirement.

   (3) For the purposes of a defence under paragraph (2)(a) the court shall in particular have regard to the following matters –

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

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

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

   (d) whether the Department knew, or could reasonably have been expected to know, that the condition of the part of the road to which the action relates was likely to cause danger to users of the road;

   (e) where the Department could not reasonably have been expected to repair that part of the road before the cause of action arose, what warning notices of its condition had been displayed;

   but, for the purposes of such a defence, it shall not be relevant to prove that the Department had arranged for a competent person to carry out or supervise the maintenance of the part of the road to which the action relates, unless it is also proved that the Department had given him proper instructions with regard to the maintenance of the road and that he had carried out the instructions.

   (4) In paragraph (2)(b) "relevant requirement" means a requirement imposed by or under this Order or any other statutory provision or rule of law or by, or in connection with the issue of, any approval, consent, licence, notice or permission issued under this Order or any other statutory provision."

7. Counsel for the appellant pointed out that in the ordinary way persons using footways in an urban location are not confined to those proceeding at a walking pace on foot from one place to another. They will commonly include joggers, children in prams or pushchairs, young children on tricycles, small bicycles or scooters and persons of varying ages on roller skates or roller blades. In many cases it would not be safe, and certainly would not be usual, for such users to go on the carriageway. Cases of reckless use of the footway by vehicles which should only be driven or ridden on the carriageway might pose a problem, but it was not suggested that the appellant in the present case was causing danger to other users by skating along the footway rather than the carriageway. The respondent's counsel argued that it was necessary to consider the class of person for whose benefit and protection the statute imposed the duty. That class extended only to persons passing and repassing on foot or with appurtenances such as prams or pushchairs (counsel acknowledged that wheelchairs would be difficult to classify).
8. It is apparent from the definition in the 1993 Order of a footway, which corresponds with the common law concepts in respect of dedicated ways, that the only persons who have a right of way on footways are foot passengers, though this may extend to cover the occupants of prams or pushchairs. It is possible that that narrowly defined class may be capable of extension, just as the House of Lords was prepared in Director of Public Prosecutions v Jones [1999] 2 AC 240 to extend lawful user of a highway beyond the strict confines of passing and repassing. But although it might be unsafe for young children to ride tricycles etc on the carriageway or to skate on it, I doubt if it can be said that they have a right of way to use the footway in that fashion. The conclusion which the respondent seeks to draw, which was accepted by the judge, was that no duty whatever is owed to any such user or to any person save a passerby on foot. I cannot suppose that such a proposition is correct, and for the reasons which I shall set out I do not consider that it is sustainable in principle or a necessary conclusion from the authorities.
9. The respondent's counsel relied strongly on the proposition that the appellant, when rollerblading on the footway, was a trespasser. If, as appears likely, the law has not extended the class of persons entitled to use the footway to an extent sufficient to include her, then it follows from the authorities that she was indeed a trespasser: see Harrison v Duke of Rutland [1893] 1 QB 142 at 154 and 158 and the statement in Halsbury's Laws of England, 4^th ed, vol 21, para 110, approved by Lord Hutton in DPP v Jones at page 285. The respondent argued from that proposition that the road authority's statutory duty to maintain the road does not extend to such trespassers or give them a right to claim damages if injured by reason of a defect in the road amounting to want of repair. It may be observed that if this conclusion is correct, the law governing a road authority's liability to trespassers would be materially more draconian than that which applies to occupiers of land.

10. I am unable to accept that the conclusion is correct. I do not find it of assistance to categorise road users into lawful users and trespassers. Such distinctions are material under the present law governing occupiers' liability, which has itself developed considerably from the days when visitors were divided into different categories to whom duties of differing content were owed and trespassers were virtually capita lupina without remedy for any injury sustained. Occupiers' liability forms a separate and distinct branch of the law, and in my opinion it is neither necessary nor appropriate in principle to apply it to the statutory duty of a road authority. As Lord Keith of Kinkel pointed out in McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 at 246, persons using a public or private right of way do so as of right; the concept of invitation or licence is not applicable to them and the occupier does not owe them the occupier's duty of care: cf Greenhalgh v British Railways Board [1969] 2 QB 286 at 293, per Lord Denning MR. Now that the immunity from liability for non-feasance has been abolished, and a generalised statutory duty to maintain roads has been placed upon the road authority, there is no need to create categories of persons to whom it is owed. Nor is it appropriate to do so, since in my opinion the wording of Article 8(1) of the 1993 Order imposes a duty owed to all road users.
11. The nature of the use made of the road by the particular user will nevertheless be material in two ways. In the first place, as appears from the terms of Article 8(3), the standard of maintenance will depend to an extent upon the traffic which is reasonably expected to use the road (and the manner in which that traffic may be expected to do so). Accordingly, if the balance of a rollerblader skating on the footway is upset by an unevenness which would not be a danger to foot passengers, and he falls and is injured, the road authority should not be liable. Secondly, if a person uses the road in a reckless fashion, for example, by riding a motor cycle at speed on the footway, and is injured by reason of a defect which would constitute a danger to pedestrians, his damages may be reduced for contributory negligence, or in an extreme case his claim might be defeated by the defence of volenti non fit injuria.
12. I accordingly conclude that in principle the respondent road authority did owe a duty to the appellant and that her claim should not be barred on the ground accepted as valid by the judge. It is necessary then to consider the authorities to see if they are inconsistent with that conclusion. The judge followed the decision of this court in Ingram v Department of the Environment (1993, unreported). In that case the court held that no duty was owed by the road authority to the plaintiff, who was travelling on the footway on a skateboard, which he was teaching his son to operate, when it struck a defective toby, causing him to fall off the board. The reasons for the decision expressed in the only note available of the judgments given were as follows. Kelly LJ held:

"We think that it is important to go back to the Order. Article 8(2) imposes the duty in these terms --- dangerous for traffic ---. That must mean, in our view, dangerous for user by traffic which one normally expects to be found on the road or pavement. We cannot think it is sensible or practical to impose a duty on a highway authority to make a pavement safe for the user of a skateboard. Essentially the road user, in our opinion, is one who is going from one place to another, whether that person be an adult or a child in a wheelchair or a blind or infirm person. There is no duty, in our opinion, on a highway authority to make safe a pavement as a place of recreation or a playground."

The other member of the court McCollum J gave his reasons in similar terms:

"The ratio of the court's decision is that the duty on the Department in relation to footpaths is that footpaths should be safe for pedestrian traffic with all the appurtenances that might reasonably be expected to accompany such traffic. There is no duty to make the footpaths safe for other kinds of traffic such as bicycles and, a fortiori, for activities which may not even fall properly within the description of traffic.

The emphasis is on pedestrian use which would include other ancillary activities such as wheeling prams etc. All kinds of pedestrians are to be taken into account, that is all the kinds of pedestrian use that can reasonably be anticipated. The court takes the view that this does not impose a duty on the Department to make the footpaths safe for the use of skateboards."

13. In reaching its decision in Ingram v Department of the Environment the court reasoned from the reference in Article 8(2)(a) of the 1993 Order to the duty on the road authority to take reasonable care to ensure that the relevant part of the road was not dangerous for traffic. A further reference to traffic appears in Article 8(3)(a), which requires the court for the purposes of a defence under paragraph (2)(a) to have regard to the character of the road and the traffic which was reasonably expected to use it.
14. When they were faced with the first cases arising after the coming into force of the Highways (Miscellaneous Provisions) Act 1961, the equivalent of our 1966 Act, the courts were not willing to accept that every trivial defect was sufficient to constitute want of repair of a highway. A series of cases, which included the Liverpool trio of Griffiths v Liverpool Corporation [1967] 1 QB 374, Meggs v Liverpool Corporation [1968] 1 All ER 1137 and Littler v Liverpool Corporation [1968] 2 All ER 343, established the propositions summarised by Lord Denning MR in Burnside v Emerson [1968] 3 All ER 741 at 742-3:

1. The plaintiff must show that the road was in such condition as to be dangerous for traffic. In seeing whether it was dangerous, foreseeability is an essential element. The state of affairs must be such that injury may reasonably be anticipated to person using the highway.

2. The plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair the highway.

3. If there is a failure to maintain, the highway authority is liable prima facie for any damage resulting therefrom. 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 (the equivalent of Article 8(3) of the 1993 Order).

15. It is suggested in Sauvain, op cit, paragraph 5-20 that no duty may be owed by the highway authority to persons driving motor vehicles on bridleways and footpaths or cyclists riding on footpaths. The learned author bases this proposition on the decision of the English Court of Appeal in Rider v Rider [1973] 505, but I do not consider that that decision should be regarded as authority for saying that no duty at all is owed to such persons. The issue in the case was whether the highway authority had properly been held partly to blame for injuries sustained by the plaintiff in a road accident. The trial judge held that the lane in question was foreseeably dangerous to reasonable users. It was argued on appeal that a sufficiently careful driver would not have been put at risk by the state of the lane and that the highway authority had accordingly fulfilled its statutory duty to maintain the highway. The Court of Appeal rejected this argument. It held that it was the statutory duty of the highway authority, in the words of Sachs LJ at page 514 –

"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."

It must therefore provide not merely for model drivers, but for the normal run of drivers to be found on the highways, including those who make mistakes. It may be seen from the way in which the argument was presented on behalf of the highway authority and dealt with by the court that it was directed to the issue whether the defect constituted a danger. I do not consider that the decision can be taken to support the proposition that the highway authority does not owe a duty to certain users. I would regard it as a more appropriate analysis that it owes a duty to all road users to maintain the road, but that that obligation is discharged if it does not allow dangers to develop. In determining whether a defect in the road surface constituted a danger, one has to take into account the nature of the traffic which is to be expected on the part of the road in question and whether the defect would be a danger to such users.

16. It is not possible to ascertain whether these authorities were cited in Ingram v Department of the Environment, but it appears probable that either they were not cited or the court accepted the suggestion in Sauvain, loc cit (which also appeared in the first edition) without detailed examination of the basis for it. Either way the decision appears to me to have been made per incuriam, and I do not regard it as binding upon this court, which has had the benefit of full argument on the issue. I must respectfully dissent from the decision, which was not in my view correctly decided and need not be followed.
17. In my opinion the authorities which I have considered do not support the proposition that the road authority did not owe a duty to children rollerblading on the footway. They do not appear to me inconsistent with the view which I adopted in principle, that it owes a duty to all road users to maintain the road. It then has to be determined whether that part of the road was maintained, and that turns upon whether the defect in question constituted a danger to the persons reasonably to be expected to use it. The persons ordinarily using a footway are foot passengers, though it would be open to a court to hold that other persons may on the facts be reasonably expected to do so. If there is a defect which constitutes a danger to such users the road is out of repair and the road authority is in breach of its statutory duty to maintain. If it cannot rely on the statutory defence under Article 8(2), as the respondent's counsel accepted in the present case, then it will be liable to a person injured, whether or not that person is an ordinary pedestrian, subject to the issue of contributory negligence – which might be very substantial if the person injured has been using the footway in a reckless fashion.
18. In the present case it was not in dispute that the hole created by the absence of the toby lid would have constituted a danger to pedestrians and the respondent Department did not rely on the statutory defence. This is in my opinion sufficient to conclude the case in favour of the appellant. Since she was injured by reason of that defect she is entitled to recover against the Department. In view of her age, the issue of contributory negligence is unlikely to arise, but we shall leave that to the trial judge. I would allow the appeal, remit the action to the judge to assess damages, determine the extent of any contributory negligence and enter judgment for the appellant for the appropriate figure.