Jones v Rhondda Cynon Taff County Borough Council

The duty under section 41 of the Highways Act 1980 requires a highway to be maintained to an objective standard. It must be reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition. It does not guarantee users’ safety.

Foreseeability that a defect might cause injury does not itself establish a breach. The danger must be one against which the authority could reasonably be expected to guard. Section 41 and the defence under section 58 remain distinct inquiries. A common law negligence claim cannot require a highway authority to maintain a highway to a higher standard than section 41 requires.

A firefighter injured his ankle when his foot entered an eroded depression beside a riverside footpath while he attended a small fire at night. The footpath was a highway maintainable at public expense, but it was little used, led to a dead end and retained a made-up section at least 1.2 metres wide.

Cardiff County Court found a breach of section 41 of the Highways Act 1980, but held that the highway authority had established the section 58 defence. It dismissed the claim and provisionally assessed contributory negligence at 75%.

The claimant appealed on the section 58 defence, common law negligence and contributory negligence. By a respondent’s notice, the authority contended that the judge should have found no breach of section 41.

1. Appeal dismissed unanimously. The Court of Appeal upheld the dismissal of the claim, although for reasons different from those of the county court. The authority’s respondent’s notice succeeded because no breach of section 41 of the Highways Act 1980 had been established.
2. Laws LJ, with whom Longmore and Richards LJJ agreed, held that describing the section 41 duty as absolute requires care. The duty is absolute only because it requires maintenance to an objective standard, rather than merely the exercise of reasonable care. It does not require an authority to guarantee highway users’ safety. The highway must be reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition.
3. Bare foreseeability of injury is insufficient. The relevant danger must be one against which a highway authority may reasonably be expected to guard. The county court’s findings showed that the made-up path was in reasonable repair, provided ample room for safe passage and repassage, and had an obvious eroded edge. Its use was minimal. Those findings entitled the judge to conclude that repair was not reasonably required, despite the substantial drop beside the path. His finding of breach appeared to have resulted from applying a test of bare foreseeability.
4. The inquiries under sections 41 and 58 are distinct. A failure to satisfy the objective section 41 standard establishes breach. The authority may then rely on section 58 by showing that it took the care reasonably required to avoid the danger. Circumstances inform both inquiries, but serve different purposes. Resource considerations may be relevant to section 58, but are not necessarily relevant to whether section 41 was breached.
5. The common law negligence claim also failed. Since the section 41 standard had been satisfied, liability in negligence would require the authority to maintain the highway to a higher standard than the statute imposed. The court accepted no authority or principle supporting that result.
6. As the absence of breach disposed of the claim, it was unnecessary to decide the challenge to the provisional assessment of 75% contributory negligence.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court allowed the highway authority’s respondent’s notice and held that there had been no breach of section 41 of the Highways Act 1980.
2. Cardiff County Court: HHJ Graham Jones dismissed the personal injury claim on 17 January 2008. He found a breach of section 41 but upheld the section 58 defence. He would otherwise have assessed contributory negligence at 75%.