Burnside and Another v Emerson and Others: CA 1968

The plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of drainage (except in one respect) but whose employees had failed to keep it clear so that it operated efficiently.
Held: At common law it was the duty of the inhabitants of a parish to put and keep its highways ‘in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.’ Standing water on a road whether or not the result of occasional flooding did not itself show a failure to maintain the highway by the authority.
Lord Justice Diplock said: ‘The duty of maintenance of a highway which was, by section 38(1) of the Highways Act, 1959, removed from the inhabitants at large of any area, and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. I take most of those words from the summing-up of Blackburn J. in a case in 1859, Reg. v. Inhabitants of High Halden , ‘Non-repair’ has the converse meaning. Repair and maintenance thus includes providing an adequate system of drainage for the road; and it was in this respect that the judge found that the highway authority in this case had failed in their duty to maintain the highway. I think that on the evidence, for the reasons given by Lord Denning M.R., he was entitled to make that finding. . . mere failure to repair gives rise to no cause of action unless the failure to repair results in a danger to the traffic using the road and damage caused to some user of the highway by the existence of that danger.’
Lord Denning: The highway authorities were never liable for non-feasance in a civil action, but the common law rule was abolished by the 1961 Act: ‘There is a duty on a highway authority to maintain the highway, and ‘maintain’ includes repair. If it is out of repair, they fail in their duty: and if damage results, they may now be made liable unless they prove that they used all reasonable care. The action involves three things: First. The plaintiff must show that the road was in such a condition as to be dangerous for traffic . . . Second: The plaintiff must prove that the dangerous condition was due to a failure to maintain which includes a failure to repair the highway. In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements. When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain. When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is not evidence of a failure to maintain. (Quoting Burgess v Northwich) So I would say that an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain. We all know that in times of heavy rain our highways do from time to time get flooded. Leaves and debris and all sorts of things may be swept in and cause flooding for a time without any failure to repair at all.
Third: 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′
LordDenning went on to consider the difference between transient and systemic causes of flooding in the Burnside case: ‘The mere presence of this pool of water on that night does not by itself show a failure to maintain. It had been raining all day. The pool of water had not been very deep for very long. Mr. Bailey, a farmer, who drove along at 8 o’clock had had no difficulty. It had become deep at 9 o’clock. Later on, at 10 o’clock, the pool was there, but was going down. But the evidence did not rest merely on the presence of the pool of water. There was additional evidence which showed that this stretch of road was not kept properly drained. It was quite often flooded when there was rain. A bus-driver gave evidence. He had been going up and down the road for some years. He said the road was always flooded there after rain. Mr. Broughton, who had been chairman of the parish council for many years, said that in the old days, when there were lengthmen who walked this length of road, he used to complain to them, and they would scrape out the debris. But in recent years the lengthmen had been replaced by a gang who visited at longer intervals. He used to complain to the surveyor then when the road was flooded: but it took them a good deal longer to put it right. After this accident had occurred, the parish council themselves wrote to the local authority, saying: ‘At a recent parish meeting complaints were made regarding water lying on the main Nottingham/Melton road opposite the school and between the two gravel-pit hills. This is considered very dangerous and I was instructed to request you to deal with this hazard as soon as possible.’ To which the local authority simply said: ‘The points mentioned are being investigated.’ Yet, according to the evidence, nothing further was done.’
Approving Burnside: ‘He found that although the system which the Nottinghamshire County Council had installed was a good system and would have been sufficient if it had been carried out, nevertheless their servants failed to operate this system properly. He said they failed in three ways: (i) by failing to secure that the drain was at the lowest point (it appears that there was a dip in the road at this point. A six-inch drain had been put in. But then the highway authority had raised the road two or three inches: and when they did so, the drain had not been put at the lowest point. It had been partly obstructed by the making of the road); (ii) by failing to keep the grips or gullies in such a condition that they would take the water from the road . . .; (iii) by failing to see that the ditch was properly cleaned out so that it would take the water from the gullies. I think these findings by the judge were borne out by the evidence, and show a failure to maintain. ‘
Lord Justice Diplock, Lord Denning MR, Lord Justice Goff
[1968] 1 WLR 1490, [1968] 1 All ER 74
Highways (Miscellaneous Provisions) Act 1961
Citing:
CitedBurgess v Northwich Local Board 1880
In the context of the duty of a local parish to maintain a highway, Lindley J said: ‘An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair.’
Counsel accepted . .
CitedRegina v Inhabitants of High Halden 1859
highhalden1859
The court considered the liability of the parish for injury arising from a failure to repair the road. The road was ‘an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances’. The evidence was that in wet . .

Cited by:
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedThoburn 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 . .
CitedDepartment for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
CitedHaydon 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 . .
CitedDepartment for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
CitedGoodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
CitedKind v Newcastle-Upon-Tyne Council Admn 31-Jul-2001
The appellant complained that the local council had failed to maintain a highway. The road was a single track rural highway. The Crown Court allowed for the present-day character of the highway, and the appellant objected. The complainant sought to . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.195690