Thompson v Hampshire County Council

This is another case which concerns the extent of a highway authority’s duty to maintain the highway.

In August 1999 Fiona Thompson, then 33, was on holiday in the New Forest with other members of her family. They were staying at a camping and caravan site at Balmerlawn in Hampshire, situated on the A337 (also known in the locality as Lyndhurst Road) about one mile north of Brockenhurst. On 5 August she had visited a brother who lived locally. At about 10.30 pm she was dropped back in the vicinity of the campsite at the junction of the A337 with the B3055, which lies a short distance to the south of the campsite. It was dark. The A337 runs north-south. It is a busy road, particularly in the summer months, but unlit by any street lighting. The B3055 joins it from the east. While Ms Thompson was making her way in the dark, without a torch, along the verge of the A337, northwards from the corner of the B3055 towards the campsite, along a narrow beaten earth track, she fell into a ditch beside the track just where it emerged from a culvert, and broke her ankle. She had strayed from the path, but not by much, perhaps no more than a step. She accepted that in the dark she could not see where she was putting her feet. She was trapped in the ditch for some 15 minutes before some passers-by heard her cries and helped her. That injury is said to have had a significant impact on her life, but the trial with which this appeal is concerned dealt only with liability.

It is common ground that the verge on which Ms Thompson was walking when she fell was part of the highway and the responsibility of the local highway authority, Hampshire County Council. In due course Ms Thompson sued the Council for breach of its statutory duty “to maintain the highway” under what is now section 41 of the Highways Act 1980 (the “Act”). There is no claim in negligence at common law, only for breach of the Council’s statutory duty. Ms Thompson failed at trial before HHJ Cutler, and is now the appellant in this court.

The grass verge on the east side of the A337 where Ms Thompson was walking is 10 metres or so wide. The verge immediately beside the road was cut twice a year, in May and September, to provide a band of shortened grass 1 metre wide for the use of pedestrians walking beside the road. However, the full width of the verge extended in an unmown state right up to a north-south wooden fence, which bordered a cricket field and constituted the boundary of the highway. The beaten earth footpath along which Ms Thompson was walking ran from the corner of the B3055 northwards beside the cricket field fence and just within the highway. To someone taking Ms Thompson’s route from this corner, shortly after the path became parallel to the fence, a ditch which was culverted beneath the grass verge for the distance which she had so far walked, emerged close beside the path. From that point, the path continued between the fence to her right and the ditch to her left, with some vegetation immediately alongside the fence. The ditch continued along the left hand side of the path for a distance of some 40 metres until it disappeared again into a culvert underground. Where the ditch first emerged from its culvert, it was particularly close to the path, and, quite apart from the effect of the dark at night, the drop into it was hidden by the grass which overgrew the brickwork of the end of the culvert.

The beaten earth path had been made by visitors to the campsite. It was not an official footpath. Indeed, according to the evidence, the Council highway department did not even know of its existence prior to Ms Thompson’s accident. That was because, whenever they inspected the area, which they did twice a year, they did so very early in the morning, when there were no pedestrians about, from a slow-moving car which did not give the inspector a clear view across the whole of the verge to the surface of the path. No previous incident or accident had ever been reported to the Council. However, the path had been in use for a number of years. The judge described it as the main pedestrian route between the campsite, which had no facilities such as shops, public houses or restaurants, and the B3055, also known as Balmer Lawn Road, which did contain such facilities. Ms Thompson had not used the path before, but she had seen other holidaymakers at the campsite using it.

At trial the Council submitted that there was no need for pedestrians to walk along the path, since there were other means of access between the B3055 and the campsite. There was the metre wide strip of verge immediately next to the A337, which, as I have said above, was cut twice a year. There was also an official public footpath which ran from a point a little way into the B3055, parallel to the A337 on the cricket field side of the fence up to the campsite. However, the judge accepted, in the course of considering the Council’s submission of contributory negligence, that there had been no negligence on Ms Thompson’s part in choosing the route she took: for she was aware that the beaten path which she used was used by others at the campsite as “the one route” for going to and from the campsite to the location where she had been dropped off. Indeed the position and appearance of the path was that of the continuation of a metalled or paved path which ran along the verge of the A337 to the south of the B3055 junction. It also served as a northward extension of a paved path running along the north side of the B3055.

On behalf of Ms Thompson, Mr Douglas Herbert submitted, as he had done before the judge, that the fault of the Council lay in the unsafe juxtaposition of path and ditch. It was not that either path or ditch was in itself in disrepair: but their close juxtaposition, especially where the ditch emerged from its culvert, exacerbated by the deceptive growth of the summer grass, rendered the Council in breach of its statutory duty. It was a form of trap. One step outside the narrow path could, as in Ms Thompson’s case, have serious consequences. It was a path where pedestrians had to be able to pass one another if they met from opposite directions; where children were part of family groups and might also walk unaccompanied by adults; and where campers on bicycles also travelled. The statutory duty to maintain the highway was a duty to render a path such as this, albeit unknown to the Council, safe for its users. Its lack of safety was not a mere matter of layout or configuration, but arose from its structure and the fact that the ditch represented a hole in the highway itself, albeit in that part of it which was on the verge rather than the metal carriageway.

On behalf of the Council, on the other hand, Mr Geoffrey Weddell emphasised that the statutory duty to maintain has been given by recent high authority a narrow interpretation, to reflect ancient common law obligations, as amounting to no more than a duty to repair. The test was therefore to ask whether the path or highway were out of repair. They were not. In truth, the complaint was essentially one about layout. Such a matter could, in an appropriate case, such as something akin to entrapment, give rise to a case in negligence. But no such case had been raised or persevered in here, and the claim was put solely in breach of statutory duty. The growth of vegetation was merely a temporary matter, akin to a matter of obstruction, but did not render the highway out of repair. Although the ditch rendered the surface of the verge uneven, that was in the nature of a ditch, and the verges of our country roads, although themselves part of the highway, were full of such ditches, as everyone was aware. Ultimately, users of the highway had to be responsible for their own safety. Ms Thompson should not have been using the path for the first time in the dark without a torch. If she had stayed on the path, she would have been all right.

Section 41 is the first section under the heading “Maintenance of highways maintainable at public expense”. It provides:

Under section 329 of the Act, an interpretation section ,“maintenance” –

By an amendment to section 41 introduced by section 111 of the Railways and Transport Safety Act 2003 (albeit that, were it otherwise relevant, comes too late to affect this case), a new subsection (1A) has been introduced:

There is a statutory defence in section 58 headed “Special defence in action against a highway authority for damages for non-repair of highway”. It provides:

Section 58(2) goes on to address certain matters to which the court shall have particular regard for the purposes of that defence, such as the character of the highway and its traffic, the appropriate standard of maintenance for such a highway, and the state of repair in which a reasonable person would have expected to find the highway.

Finally, under the heading “Safety provisions”, I would refer to section 66, the opening provisions of which read as follows:

These provisions give highway authorities power to build safety features for a highway or a footway on or by the highway; but the only duty is to provide a footway where they consider it necessary or desirable for the safety or accommodation of pedestrians. It has not been alleged in this case that the Council is in breach of its duty under section 66(1), nor, by way of judicial review, that it has exercised or failed to exercise its powers under section 66 in any unreasonable or unlawful way.

The judge agreed with the Council’s submissions below. As for the claim under section 41, he said this:

That was sufficient for his decision. But he went on to say something about the section 58 defence and about contributory negligence in case he was wrong in his view about breach of the section 41 duty. As for section 58, he said that if there were a breach of that duty, he did not see how the Council could avail itself of its section 58 defence since it simply did not know about the path on the verge. He was clearly of the view that the Council should have known about the path. As for contributory negligence, he would have found Ms Thompson one-third to blame: not for choosing that path rather than taking any other route, but because she was prepared to do so at night, for the first time, without any illumination, and therefore should have exercised a high degree of care to ensure that she did not step outside the line of the path.

On this appeal, there is no cross-appeal on the section 58 defence: but Ms Thompson submits that, if she is right about breach of the section 41 duty, then the judge was wrong to say that she was responsible for any, other perhaps than the smallest degree, of contributory negligence.

The modern authorities may be said to start with Burnside v. Emerson [1968] 1 WLR 1490, where breach of the statutory duty was established. A car crashed as a result of running into a pool of storm-water lying across the road. The pool had been caused by the authority’s failure properly to maintain the drainage system, which had become blocked. Lord Denning MR said that the action for breach of the statutory duty (then found in section 44(1) of the Highways Act 1959) involved the claimant showing both that the road was in a dangerous condition, such that injury may reasonably be anticipated to persons using the highway; and also that the dangerous condition was due to a failure to maintain; and that in this connection a distinction should be drawn between a permanent danger due to want of repair and a merely transient danger due to the elements: only the former was actionable (at 1493H/1494G). Diplock LJ, in a passage subsequently approved and adopted by the House of Lords, said (at 1497A) that the statutory duty –

Hereford and Worcester County Council v. Newman [1975] 1 WLR 901 concerned footpaths obstructed by vegetation and, in one case, by a barbed wire fence. It was held that the authority had failed to maintain the footpaths affected by a substantial growth of vegetation rooted in their surfaces, taking them out of repair; but (by a majority) that the fence was a mere obstruction and not a failure of repair. Cairns LJ said (at 911B/D):

Haydon v. Kent County Council [1978] 1 QB 343 concerned snow on a narrow, steep footpath. The claimant failed in showing breach of the statutory duty, but there was a division of opinion in this court as to the reason. The majority (Goff and Shaw LJJ) considered that the duty to maintain extended to removing snow and ice and making the highway safe in bad weather conditions; but that it had not been shown that the authority had failed to act with sufficient speed. Lord Denning MR, however, considered that the duty did not extend at all to such transient conditions or to matters which were merely obstructions. He emphasised the historical common and statutory law background was to be found in the duty to repair and that the test was therefore whether the highway in question was out of repair. He said that repair meant “making good defects in the surface of the highway itself” (at 357A). He adopted the dictum of Diplock LJ from Burnside and the reasoning of Cairns LJ from Newman. As examples of matters which were out of repair he cited “deep ruts in cart roads, potholes in carriage roads, broken bridges on footpaths or bushes rooted in the surface” (At 357B). As examples of mere obstructions he cited the barbed wire fence in Newman, and matters of a transient nature such as snow or ice or water or anything which does not damage the surface of the highway (at 358F). His minority judgment was later approved in full by the House of Lords in Goodes v. East Sussex County Council [2000] 1 WLR 1356.

In Stovin v. Wise [1996] AC 923 the claimant motor cyclist was injured in a collision at a junction. There was a visibility problem at the junction due to a rising contour (a “bank”) on adjoining land, not itself part of the highway. Due to previous accidents at this junction, the authority had acknowledged the visibility problem and recommended flattening the bank provided the adjoining landowner agreed. Unfortunately that recommendation had not been acted upon. The claimant sued the driver of the car which had come out of the junction and settled that claim. The defendant however had joined the authority (Norfolk County Council) as a third party alleging both breach of statutory duty and negligence. The trial judge held that there had been no breach of statutory duty because the bank was not part of the highway, but he awarded a contribution of 30% on the ground of the authority’s negligence. This court dismissed the authority’s appeal, but the House of Lords allowed it, albeit by a bare majority. The issue of statutory duty itself therefore never survived the trial. As for the claim in negligence, Lord Hoffmann, who spoke for the majority, said this in conclusion (at 958):

Four years later, in Goodes v. East Sussex County Council [2000] 1 WLR 1356 the issue of the statutory duty to maintain did reach the House of Lords, in a re-run of Haydon. The claimant’s car skidded on a patch of black ice. He complained that the authority’s failure to salt or grit the road in the face of weather forecasts of freezing conditions was a breach of its duty. The trial judge dismissed the claim, this court allowed it, following the view of the majority in Haydon, on the basis that the authority had failed to remove the ice within a reasonable time. The House of Lords preferred the view of Lord Denning to that of the majority in Haydon. Lord Hoffmann stressed that there was no complaint that there was anything wrong with the road’s surface (in the absence of ice). He specifically approved Lord Denning’s analysis in Haydon that the duty to maintain was in truth “concerned only with keeping the fabric in repair” (at 1360F). It was not a “general duty to take reasonable care to secure that the highway was not dangerous to traffic” (at 1362G). Why then was “maintain” defined as including repair? Lord Hoffmann said (at 1365E/G) that it was not easy to fathom the draftsman’s mind, but he –

Lord Hoffman went on to say that the solution of the majority in Haydon was an unsatisfactory half-way house, for the statutory duty was an absolute one, albeit subject to the section 58 defence. If an absolute duty to maintain roads free of ice and snow, subject to the statutory defence, was to be thought appropriate, that was a matter for Parliament. (As stated above, it is now the law: see section 41(1A) of the Act.) However, section 41(1) and section 58 were not to be conflated into a general duty of care, different in scope from that which had existed in the past, subject only to a reversal of proof whereby it was for the defendant authority to prove that it had exercised all reasonable care.

In Kind v. Newcastle-upon-Tyne Council [2001] EWHC Admin 616 (unreported, 31 July 2001) the claimant wished to force the authority to extend into the verges the metalled width of a single track road used for farm access, so that it could be made safe for pedestrians, cyclists and horse riders to face and pass heavy goods vehicles. The crown court found that although the road was in a reasonable state of repair to serve the ordinary traffic making use of it, the verges, which were part of the highway, were not suitable for that traffic. Scott Baker J held that there was no inconsistency:

Mr Weddell, on behalf of the Council, relied on that authority as being the single case nearest on its particular facts to the present appeal. At any rate, it seems to me that its conclusion is consistent with Mr Weddell’s submission, based on Goodes (which was mentioned by Scott Baker J) and the most recent House of Lords authority, to which I make mention immediately below, that the statutory duty to maintain does not extend to matters of layout.

Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 was decided after the judgment of Judge Cutler below. There the claimant collided with an oncoming bus just beyond the crest of a country road. The crest had hidden the bus until the last moment and the curve immediately behind the crest gave the oncoming bus the appearance of approaching on the wrong side of the road, when in fact it was correctly stationed. The false perception led the claimant to brake, skid and collide. In the past there had been a “slow” sign painted on the road at some point before the crest, but it had disappeared, probably due to road repairs. The claimant brought proceedings both for breach of statutory duty and in negligence, in essence on the basis that the authority had failed to warn about the danger. The House of Lords held that there was liability in neither: the statutory duty did not involve the provision of information by signs, and the mere fact that the authority had power to provide signs did not mean that it was negligent in not doing so. As for the former, Lord Hoffmann again rehearsed the history of section 41, referred to Burnside, Lord Denning in Haydon and Goodes, and proceeded swiftly to his conclusion: the provision of information “is quite different from keeping the highway in repair” (at para 15). As for the claim in negligence, Lord Hoffmann stressed that the authority had done nothing itself: the duty to act was based solely on the existence of its statutory powers. However, he also said at para 43 –

Lord Scott similarly contrasted the absence of a statutory duty to maintain with –

It seems to me to be clear from these authorities that a highway authority is not responsible, under its statutory duty to maintain the highway, for the highway’s layout. In Gorringe, the authority was liable under section 41(1) neither for the dangerous layout of the road itself, nor for the failure to warn about that danger by means of signs. In one sense that dangerous layout was concerned with the “structure” of the road, a word deriving from Diplock LJ’s formula in Burnside and often repeated since: but it is by now clear, if it was ever in doubt, that this reference to structure is to nothing more than the physical surface of a highway. The duty is not a general duty to ensure, subject to the section 58 defence, that a highway is not dangerous to traffic, but no more than a duty to repair the structure of the highway if it is out of repair (Goodes and Gorringe).

However, a duty in common law negligence may go further, where such negligence amounts to a positive act of entrapment or ensnarement. In the present case, no such allegation was advanced.

One can see that in one sense this case concerned the structural surface of the highway, for in the relevant area of the path the surface of the verge fell away into a ditch. However, the ditch was part of the contour of the land, even if the highway did extend over the verge up to the fence. To say that such a ditch needed to be filled in or covered over so as to even out the surface of the verge would be tantamount to saying that all verge ditches would have to be similarly addressed, as a matter of the statutory duty to maintain the surface of the highway. However, that would be going hugely beyond an authority’s previously understood duty. Neither ditch nor culvert nor pathway were out of repair or in disrepair: it was simply that a walking path right next to a ditch presented certain dangers, at any rate at night in the absence of any illumination such as a torch. However, this is just such a natural danger to the user of a highway as he must be prepared to overcome by his own natural caution, and the taking of precautions: just as drivers must similarly take care against the hazards of road layouts. No driver would go out on an unlit road at night without the means of illuminating the road. Just because there is no liability by reason of the statutory duty unless the lack of repair of the highway itself constitutes a danger to its users, it does not follow that the duty is itself a general duty to make the highway safe for its users.

In effect, Ms Thompson’s complaint about the juxtaposition of path and ditch is a complaint about layout and not lack of repair. As for the growth of summer vegetation, either that on the fence side of the path, which may, as Mr Herbert at one point suggested, have tended to push the pedestrian over towards the ditch, or that on the ditch side of the path, which may have obscured the point at which the covered culvert emerged to become an open ditch, that was not, as in Newman, a feature of the out of repair surface of the path itself, but either a mere obstruction or at any rate a merely transient feature. Mr Herbert did not submit that the ditch should have been covered over (cf the failed submission in Kind), only that the Council should have taken some steps to protect the incautious pedestrian from straying off the path into the ditch, such as a rail of some kind between path and ditch, particularly at the point of greatest danger where the ditch emerged from its culvert close to, but outside the confines of, the beaten path. However, properly understood, that submission is an invocation of the Council’s power, but not its duty, under section 66(3) of the Act.

There was, in truth, no claim by reference to section 66 at all. Section 66(1) does impose a duty on an authority to provide “a proper and sufficient footway as part of the highway” but only in a case where it considers a footway as necessary or desirable for the safety or accommodation of pedestrians. Since no claim was ever made by reference to section 66(1) and its ramifications were never scrutinised, I would be loath to say anything which might be construed as an interpretation of it; and I do not intend to do so. But clearly, if a section 66(1) claim had been made, it might have been relevant to consider what, if any, obligation there was in a case where the Council had provided a mown path for pedestrians beside the road and knew of the footpath to the campsite in the cricket field, but did not know of the footpath in question. It might also have been relevant to consider what was involved in the concept of a “proper and sufficient footway”. None of these matters was considered, because section 66(1) was not in play.

Nor is there any claim in common law negligence, no doubt for very good reasons. Such a claim had been originally pleaded, at any rate as arising out of the Occupiers Liability Act 1957 (see paragraph 12 and particular (xi) of the Particulars of Claim): but such a plea had been abandoned at or before trial. On analysis, however, and in the light of the authorities which I have reviewed above, it seems to me that such legal attraction as Ms Thompson’s predicament, for which I feel every sympathy, has as expounded in the able submissions of her counsel, Mr Herbert, derives from the sub-text that the layout of path, culvert and ditch in this case was a trap. That submission, however, as Gorringe makes clear, must be made in common law negligence.

In the circumstances questions of contributory negligence do not arise. I would briefly state, however, that, on the hypothesis that Ms Thompson had made good her claim for breach of statutory duty, in my view the judge was entitled to assess her contributory negligence at one-third. In essence, he considered that she had failed to take reasonable care for her own safety. In taking to the path, which she had never used before, at night and without illumination, and in circumstances where she could not see where she was putting her feet, Ms Thompson could reasonably be asked to bear a minority of responsibility for her predicament. I do not think this court would be entitled to interfere with the judge’s assessment of that share.

For the reasons stated above, I would dismiss this appeal.

I agree.

I also agree.