Thompson v Hampshire County Council

A highway authority’s statutory duty to maintain a highway is a narrow duty to repair its physical fabric when it is out of repair. It is not a general duty to make the highway safe or to alter a dangerous layout.

A natural difference in level between a worn path and an adjacent ditch concerns layout rather than disrepair. Vegetation may constitute disrepair where it is rooted in and interferes with the highway’s surface. Adjacent or transient vegetation which merely obstructs or conceals a feature does not ordinarily do so. A complaint that safety rails should have been installed invokes the authority’s statutory power to provide safeguards, rather than its duty to maintain.

The appellant broke her ankle after straying from an unofficial beaten path on a highway verge and falling into an adjacent ditch at night. The path, which had been created by pedestrians, was unknown to the respondent highway authority. Neither the path, ditch nor culvert was itself in disrepair.

His Honour Judge Cutler in Salisbury County Court dismissed the claim for breach of the duty to maintain the highway under section 41 of the Highways Act 1980. He alternatively found that the authority could not establish the section 58 defence and that the appellant would have been one-third contributorily negligent.

The central issue on appeal was whether the juxtaposition of the path and ditch, together with vegetation obscuring the ditch, amounted to a failure to maintain the highway.

1. Appeal dismissed. The statutory duty under section 41(1) of the Highways Act 1980 is confined to repairing the physical fabric of a highway when it is out of repair. It is not a general duty, subject to the section 58 defence, to ensure that a highway is safe. It does not require a highway authority to remedy a danger arising solely from the highway’s layout. The principles in Goodes v East Sussex County Council [2000] 1 WLR 1356 and Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 were followed.
2. The ditch formed part of the natural contour of the land. Neither it, the culvert nor the beaten path was out of repair. Requiring the authority to fill or cover the ditch would extend the maintenance duty far beyond its established scope. The danger arose from the juxtaposition of the path and ditch, especially when the path was used at night without illumination. It was therefore a matter of layout rather than disrepair.
3. The vegetation did not take the path out of repair. Unlike the vegetation rooted in the paths considered in Hereford and Worcester County Council v Newman [1975] 1 WLR 901, it did not interfere with the path’s surface. Vegetation beside the path which tended to divert pedestrians, or which concealed the opening of the ditch, was a mere obstruction or a transient condition.
4. A contention that the authority should have installed a rail between the path and ditch invoked its power under section 66(3) of the Highways Act 1980, not its duty under section 41. No claim had been made under section 66(1), and the court declined to interpret that provision.
5. A common law duty may extend to a positive act of entrapment or ensnarement. No such negligence claim remained before the court. Had breach of statutory duty been established, the judge was entitled to find the appellant one-third contributorily negligent for using an unfamiliar path at night without illumination.

Lord Justice Carnwath and Lord Justice Potter agreed with Lord Justice Rix. The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the conclusion that the condition complained of concerned layout rather than disrepair under section 41 of the Highways Act 1980.
2. Salisbury County Court: His Honour Judge Cutler dismissed the statutory maintenance claim. He held alternatively that the section 58 defence would fail and that the appellant would have been one-third contributorily negligent.