Department for Transport, Environment & the Regions v MacDonald Ltd & Ors

A highway authority’s duty under section 41(1) of the Highways Act 1980 extends beyond the traffic surface to the structure and fabric of the highway. It includes maintaining an adequate highway drainage system and clearing a longstanding blockage which prevents that system from working.

A transient accumulation of water caused by heavy rain does not itself establish failure to maintain. Liability may arise where a dangerous accumulation results from a longstanding drainage defect or blockage. Burnside v Emerson remained binding and was consistent with the later authorities concerning snow, ice, highway layout and road signs.

Three consolidated claims arose from accidents allegedly caused by standing water on highways. The highway authority settled the injured road users’ claims and brought Part 20 proceedings against its maintaining agents. The agents contended that section 41 of the Highways Act 1980 imposed no duty to maintain highway drains.

Judge Seymour QC decided the preliminary issue against the highway authority and dismissed the Part 20 proceedings. He considered that later authorities had effectively displaced Burnside v Emerson and confined the statutory duty to repair of the road surface.

The agreed question on appeal assumed that the accidents resulted from a dangerous accumulation of water caused by a longstanding blockage of the highway drainage system. The Court of Appeal had to decide whether the statutory duty covered the drainage system and whether maintenance included clearing such a blockage.

1. Appeal allowed. The preliminary issue, as reformulated, was answered affirmatively. On the assumed facts, the highway authority could have been liable to the original claimants under section 41(1) of the Highways Act 1980. The dismissal of the consequential Part 20 proceedings could not stand.

2. The statutory duty is not confined to the part of the road surface used by traffic or pedestrians. The references in later authorities to the road’s surface arose from the issues in those cases. The controlling concept is the highway’s structure or fabric, of which its surface is an important part. An effective drainage system may form part of that structure and fabric.

3. Burnside v Emerson remained binding. It established that highway repair and maintenance include providing an adequate drainage system and properly operating it. None of the later cases concerned maintenance of highway drains or laid down a rule inconsistent with Burnside. Goodes v East Sussex County Council concerned removal of snow and ice; Gorringe v Calderdale MBC concerned warning signs; and Thompson v Hampshire CC concerned highway layout.

4. Maintenance is not restricted to repairing physical damage to drainage fabric. Clearing a blockage may put the drainage system back into working order and therefore amount to repair or maintenance. A longstanding blockage by silt, debris or vegetation falls within that principle.

5. The statutory duty does not make every occurrence of standing water actionable. A transient danger caused by heavy rain, leaves or debris is not itself evidence of failure to maintain. The assumed facts were materially different because they involved a dangerous accumulation caused by a longstanding blockage.

6. Carnwath LJ delivered the judgment. Moses LJ and the Chancellor of the High Court agreed.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 1089 , unanimously allowed the highway authority’s appeal and answered the reformulated preliminary issue affirmatively.
2. Queen’s Bench Division: Judge Seymour QC held that the highway authority would not have been liable to the original claimants and dismissed the consequential Part 20 proceedings. He considered that the statutory duty was confined to repair and keeping in repair of the road surface.