Department
for Transport v. Mott McDonald Limited &
Others – Sounding the retreat on Goodes?
On
27th July 2006 the Court of Appeal handed down judgment in the case of Department
for Transport, Environment & the Regions v. Mott Macdonald Limited, Amey
Mouchel Limited & Cornwall County Council [2006] EWCA Civ 1089.
This is a case which all highways practitioners need to be familiar
with.
Factual Background
This was an appeal by the DfT from a first instance decision on a
preliminary issue in three consolidated cases arising out of similar accidents.
In each case it was alleged that the accident was caused by standing water on
the highway, attributable to the highway authority’s failure to maintain the
highway drains, in breach of its duty under section 41(1) of the Highways Act
1980.
Part 20 proceedings were brought by the DfT, the highway authority,
against its maintaining agents. The DfT had settled each of the claims with the
original claimants and sought to recover its outlay from the maintaining
agents. They in turn took the point that there was no breach of section 41, in
particular on the grounds that, following the House of Lords’ decision in Goodes
v. East Sussex County Council [2000] 1 WLR 1356, section 41 did not
encompass a duty to maintain the highway drains.
The issue at the heart of the claim was whether the decision in Burnside
v. Emerson [1968] 1 WLR 1490 could stand in light of the approach taken by
the Courts in a number of later highways claims; namely, Hereford &
Worcester County Council v. Newman [1975] WLR 901, Haydon v. Kent County
Council [1978] 1QB 343, Goodes, Gorringe v. Calderdale
Metropolitan Borough Council [2004] 1 WLR 1057 and Thompson v. Hampshire
County Council [2004] EWCA Civ 1016.
The DfT’s case was that Burnside remained good law. At first
instance, the respondents persuaded the judge that it was not.
In Burnside an accident had been caused by a car running into a
pool of water in the road. The trial judge held the highway authority liable
under the predecessor to section 41. He held that, although the highway
authority had installed a good system of drainage, they had not operated it
properly, and the resulting water on the highway constituted a danger due to
their failure to maintain. This decision was upheld by a Court of Appeal
consisting of Lord Denning MR, Diplock LJ and Goff J.
Judgment
Carnwarth LJ gave the leading judgment. The Chancellor of the High Court
and Moses LJ agreed with him.
In holding that Burnside remained good law, Carnwarth LJ dealt
with a number of judicial statements which the respondents sought to rely upon
in support of the contention that the duty to repair was confined to the
‘surface’ of the highways.
The first such statement arose from Lord Denning’s dissenting judgment
in Haydon. In that judgment he referred to repair as meaning “making
good defects in the surface of the highway itself so as to make it
reasonably passable for the ordinary traffic of the neighbourhood at all
seasons of the year without danger caused by its physical condition” (my
underlining).
Far from accepting that Lord Denning’s judgment in Haydon contained any departure from his views in Burnside, Carnwarth LJ said
that Lord Denning’s reference to the latter (he referred to Burnside a
number of times in Haydon) contained the clear implication that he saw
no inconsistency between the two cases.
Carnwarth LJ then turned to consider the genesis of the term “surface”,
as used by Lord Denning in Haydon. He said that it arose from the
judgment of Cairns LJ in
Hereford.
The respondents had sought to show that, because this decision post-dated Burnside,
it evidenced a shift of approach on Lord Denning’s part. Carnwarth LJ was
having none of that. He said that the reference to “surface” was explicable on
the facts of the case (
Hereford related to a footpath which had been rendered practically impassable by dense
vegetation growing on its surface). In addition, Carnwarth LJ noted that, in
Hereford, no
authority had been cited for any more general rule limiting the maintenance
duty to the surface of the road. He observed that Burnside itself had
not been referred to and, as it would have been binding authority to the
contrary, he was unprepared to hold that
Hereford contained any support for the respondents’ argument.
Consideration was then given to the use of the terms “fabric” and
“structure” in the opinions of Lords Hoffman and
Clyde
in Goodes. The respondents argued that these terms were to be taken as
having the same meaning as the word “surface” in Haydon. Once again,
Carnwarth LJ disagreed. He said that the use of the terms “fabric” and
“structure” were deliberate, being derived from a case called Dublin United
Tramways Limited v. Fitzgerald [1903] AC 99, in which it was said that “What
they have got to keep in good condition is the structure or fabric of the
roadway. But the surface is part of that structure or fabric and, as this is
roadway, a very important part …”. Carnwarth LJ relied upon this dicta in support of his view that the duty is not confined to the “surface” of the
road; the surface is simply treated as one important part of what is to be
maintained, which is the “structure and fabric of the roadway”.
Carnwarth LJ then dealt with Gorringe and Thompson. Of the
former he said that the reference therein to “the state of the road’s surface”
was intended as a general statement of the duty and not a definitive statement
of its precise limits. As to the latter, he said that having been a member of
the Court on that occasion there was no intention to treat Burnside as
having been in effect overruled.
On the back of this analysis of the subsequent cases, Carnwarth LJ said
that those cases, when properly understood, did not support the respondents’
contention that the section 41 duty is confined to the surface of the highway.
He said that Burnside was not inconsistent with those authorities and
that the Court remained bound by it.
Carnwarth LJ then undertook a similar analysis of the question of
“repair” and the way it had been dealt with in Burnside and the
subsequent cases. He concluded that it would be wrong to consider “repair”
without due regard to “maintenance”. He said that there was nothing in the
subsequent cases which persuaded him that Burnside was wrong.
Significantly, he emphasised that there was nothing in those cases which would
assist the respondents in a case where the drainage defect complained of was a
“longstanding blockage”.
Comment
Although highways authorities can take some comfort from the fact that
Carnwarth LJ appears to have placed reliance on the need for a defect to have
been “long-standing”, this comfort must be tempered by the realisation that the
citadel that was Goodes no longer looks quite so impregnable. It is
notable that, having cited the old and little known case of Sandgate Urban
District Council v. Kent County Council (1898) 79 LT 425, Carnwarth LJ went
on to say that this was a case which would need to be drawn to the attention of
the House of Lords were a question as to the true ambit of section 41 ever to
find itself before it again.
Of course, the amendments to the Highways Act 1980, made by section 111
of the Railways and Transport Safety Act 2003, are such that the Appellate
Courts are unlikely to be troubled again with thorny questions relating to ice
and snow. However, in the author’s opinion, the Court of Appeal’s decision in Department
for Transport v. Mott Macdonald & Others opens the door to challenges
which looked doomed in the afterglow of Goodes. For instance, what of
the situation where moss has been allowed to build up on the surface of the
highway over a lengthy period of time? Or what of defects just off the highway
which nevertheless cause a danger upon it? Only time will tell whether this
recent decision will have long-standing consequences. The author, along with
all other highways practitioners, awaits these developments with interest.
Daniel Tobin
14th August 2006
