Ali v The City of Bradford Metropolitan District Council

A highway authority’s duty under Highways Act 1980, s 130, protects the public’s legal rights to use and enjoy highways. It does not create a private action for damages caused by an unsafe obstruction. The statutory scheme under ss 149 and 150 regulates the removal of obstructions through public-law powers, duties and enforcement mechanisms. The common-law rule concerning an occupier who continues a nuisance after knowledge of it does not automatically apply to highway authorities and highway users. A highway authority is not an occupier of the highway and does not owe highway users a common duty of care. The decision did not concern a nuisance created by the authority itself.

Mrs Ali claimed damages after slipping on mud and debris covering steps on a public footpath. Her claim initially relied on several statutory and common-law causes of action, but before the preliminary hearing it was limited to breach of s 130 of the Highways Act 1980 and nuisance. The Bradford County Court held that the pleadings disclosed no cause of action, and Judge Spencer QC upheld that decision. The appeal concerned whether either s 130 or nuisance could provide a private claim for the accident.

The appeal was dismissed unanimously. Toulson LJ delivered the principal judgment. Wilson LJ agreed with both judgments, and Longmore LJ agreed with Toulson LJ’s reasons.

1. Section 130. Section 130 of the Highways Act 1980 protects the public’s legal rights to use and enjoy highways. It concerns access and the prevention of unlawful stopping-up or obstruction, not the safety of the highway’s condition. Its statutory history, descending from s 26 of the Local Government Act 1894, showed no intention to create a private action for damages. The enforcement procedure under ss 130A to 130D confirmed that the duty was public-law in character.
2. Maintenance and obstruction. The authorities on highway maintenance, including Haydon v Kent County Council [1978] QB 343 and Goodes v East Sussex County Council [2000] 1 WLR 1356, established that the s 41(1) maintenance duty was concerned with structural repair. The duty did not generally extend to removing obstructions that did not damage the highway’s surface. Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057 treated the snow and ice obligation in s 41(1A) as a limited addition to that repairing duty. Parliament had therefore legislated only to the extent set out in s 41(1A).
3. Nuisance. The principle in Sedleigh-Denfield v O’Callaghan [1940] AC 880, concerning an occupier who continues a nuisance after knowledge and a reasonable opportunity to end it, could not simply be transferred to the relationship between a highway authority and highway users. The authority was not an occupier of the highway and did not owe users a common duty of care. The statutory provisions governing removal of highway obstructions, particularly ss 149 and 150, included a mechanism for balancing risks against available resources. Imposing equivalent liability through nuisance would interfere with that scheme and usurp Parliament’s role.
4. The court left open the distinct case of a nuisance created by the highway authority itself. Lord Scott’s observation in Gorringe at para 51 was obiter and did not require a different result. The pleaded claims disclosed no private cause of action, so the appeal was dismissed.

1. Court of Appeal (Civil Division): Appeal dismissed. The court held that the pleaded claims under s 130 of the Highways Act 1980 and nuisance disclosed no private cause of action: [2010] EWCA Civ 1282.
2. Bradford County Court: Deputy District Judge Lobb held at a preliminary hearing that the pleadings disclosed no cause of action. Judge Spencer QC upheld that decision.