A road user was injured on a corner which was known to the highway authority to be dangerous. The authority had sought to make arrangements with the owner of land adjoining the highway to remove a bank which obstructed the view.
Held: The Highway Authority could be liable in negligence for failing to achieve a remedy to a situation which it knew to be dangerous, but that no additional duty was owed, under its statutory duty to maintain the highway, to execute works on private land. Kennedy LJ ‘I agree with the judge that the statutory duty to maintain the highway does not extend to work on land not forming part of the highway. There is no definition of highway in the Act of 1980 beyond that in section 328(1), where it is defined as meaning ‘the whole or a part of a highway, other than a ferry or waterway,’ but the common law definition is that a highway is a way over which there exists a public right of passage. It seems to me that despite what is contained in the other statutory provisions to which we have been referred it would be stretching the meaning of both ‘highway’ and ‘maintain’ if this court were to say that in order to comply with its duty to maintain the highway authority had to remove an obstruction to visibility situated on adjoining land. In my judgment sections 79 and 154 are merely sections which enable the highway authority to carry out functions which go beyond the scope of section 41. Accordingly I conclude that the judge was right not to find any relevant breach of statutory duty.’
Nourse, Kennedy and Roch L.JJ
Times 08-Mar-1994, Gazette 13-Apr-1994, [1994] 3 All ER 467, [1994] 1 WLR 1124
lip
Highways Act 1980 41(1) 328(1)
England and Wales
Citing:
Considered – Haydon v Kent County Council CA 1978
Impacted snow and ice had built up on a steep, narrow, made-up footpath from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities. Their resources were fully . .
Considered – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .
Considered – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Distinguished – East Suffolk Rivers Catchment Board v Kent HL 1941
An exceptionally high spring tide caused many breaches of the banks of the River Deben, and extensive flooding, including the respondent’s farm. By section 6 of the 1930 Act, the appellants had a statutory power to maintain the flood defences, but . .
Distinguished – Sheppard v Glossop Corporation CA 1921
. .
Cited by:
Appeal from – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – Great North Eastern Railway Limited v Hart and Secretary of State for Transport, Local Government and the Regions and Network Rail Infrastructure Limited QBD 30-Oct-2003
A driver had crashed through a barrier before a bridge, and descended into the path of a train. Ten people died. He now sought a contribution order against the Secretary of State for the condition of the barrier which was said to be faulty.
Cited – Kane v New Forest District Council CA 13-Jun-2001
A pedestrian walked from a footpath into the road and was hit by a car. She sought damages from the highway authority, saying that they had allowed vegetation to grow to an extent to make it impossible to be seen. As a second tier appeal, the . .
Cited – Thoburn v Northumberland County Council CA 19-Jan-1999
The claimant alleged that the defendant by allowing a flood across a road not to be cleared was in breach of their statutory duty under the 1980 Act.
Held: Though the blockage was not entirely on the Highway, the nature and extent of it was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.89578
