Shoals v Cambridgeshire County Council

Street furniture serving motorists, including a bollard intended to be lit at night, forms part of the highway for the purposes of the highway authority’s maintenance obligation under section 41 of the Highways Act 1980. A highway authority may therefore be liable where such equipment is left unlit and creates a danger to traffic.

Separately, in common-law negligence the claimant bears the burden of proving duty, breach and causation. Findings that inspection should have occurred more frequently, and that earlier inspection would probably have revealed the defect, may suffice to establish breach.

Mr Shoals was injured when his motorcycle struck the kerb of a traffic island after he swerved to avoid a rabbit. The island contained a bollard which should have been lit but was unlit because damage to another road signal had broken the shared electrical circuit.

The Cambridge County Court held Cambridgeshire County Council liable for breach of its duty as highway authority under section 41 of the Highways Act 1980 and also in common-law negligence. The Council renewed an application for permission to appeal, arguing principally that the bollard was not part of the highway and challenging the negligence finding.

1. Application dismissed. There was no worthwhile prospect of success on the proposed appeal.
2. A bollard or street sign intended to assist motorists, and intended to be lit at night, is part of the highway for the purposes of section 41 of the Highways Act 1980. It would be untenable to regard the highway authority as having no obligation to maintain such equipment.
3. In common-law negligence, the claimant must prove duty of care, breach and causation. This differs from the statutory scheme under section 41, where the highway authority relies on statutory defences and bears the burden of establishing them.
4. That distinction did not assist the Council. The county court’s findings supported liability both as to common-law duty and breach and as to the statutory obligation. The finding that the bollard should have been inspected more frequently than once every four weeks, given its position on a main road, was sufficient. Although it could not be said with certainty that earlier inspection would have discovered the defect, such inspection would have created a much greater prospect of discovery.
5. Lord Justice Simon Brown agreed that the section 41 argument could not succeed, but preferred to rest his supporting judgment on the alternative basis of common-law negligence. Permission to appeal was dismissed.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed.
• Cambridge County Court: His Honour Judge Sennitt held Cambridgeshire County Council liable under section 41 of the Highways Act 1980 and in common-law negligence.