Pritchard v Clwyd County Council

A transient danger caused by heavy rain or other elements does not, by itself, prove that a highway authority failed to maintain the highway. The claimant must provide evidence of a defect, obstruction, or other breach. Res ipsa loquitur applies only where the event is more consistent with the defendant’s failure, identifies the defendant as responsible, and falls within that defendant’s exclusive control. It cannot supply proof where separate authorities perform different functions and the cause remains uncertain. A statutory duty to remove transient obstructions is discretionary and does not necessarily create a private damages action. Section 22(1) of the Control of Pollution Act 1974 was not intended to create such an action for an injured highway user.

The claimant slipped while crossing a flooded road and injured her knee. She sued the highway authority and the authority responsible for the sewer system, alleging negligence and breaches of statutory duty.

The Holywell County Court found both defendants at fault, reduced damages by one quarter for contributory negligence, and awarded £6,801.35. Both defendants appealed. The claimant cross-appealed on contributory negligence and damages. The central issue was whether the accumulation of water after heavy rainfall supported an inference that either defendant had breached a common law or statutory duty.

1. Appeal allowed. Beldam LJ, with Stocker LJ agreeing, held that the recorder’s finding of liability could not be supported. It was unnecessary to determine the claimant’s cross-appeal on contributory negligence or damages.
2. The collection of water after a heavy storm was a transient danger caused by the elements. In Burnside v Emerson [1968] 1 W.L.R. 1490, the distinction between a permanent danger caused by want of repair and a transient danger caused by heavy rain was material. Occasional flooding, without more, was not evidence of non-repair. The photographs showed no defect in the highway surface, and there was no evidence that the drainage system was inadequate or that the gullies were blocked.
3. Res ipsa loquitur did not apply. The event had to be more consistent with a defendant’s failure to take care, point to a particular defendant as being at fault, and fall within that defendant’s exclusive control. Here, responsibility was divided between two authorities with different duties. The flooding might have resulted from a temporary blockage, debris, or another cause for which neither authority had notice or an opportunity to intervene.
4. Section 22(1) of the Control of Pollution Act 1974 did not create a civil cause of action for an injured highway user alleging failure to clean the highway. The statutory scheme supplied other remedies, including the provisions identified in sections 322 to 324 of the Public Health Act 1936, section 88 and section 97 of the 1974 Act.
5. The duty concerning transient obstructions under section 150 of the Highways Act 1980 was discretionary. Its enforcement mechanism was a complaint and magistrates’ order, not a civil damages claim. The reasoning in Haydon v Kent County Council [1978] Q.B. 343 was applied on that issue.
6. The appeal was allowed with costs, subject to the stated enforcement and legal-aid taxation directions.

1. Court of Appeal (Civil Division). The defendants’ appeal was allowed. The finding of liability and damages award could not stand. The claimant’s cross-appeal was not determined because it was unnecessary.
2. Holywell County Court. The recorder found both defendants at fault, found the claimant 25 per cent responsible, and awarded £6,801.35.