Valentine v Transport for London & Anor

A highway authority’s statutory duty to maintain a highway concerns its structure and fabric. It does not ordinarily require removal of loose surface-lying material, spillages, snow or ice, even where that material creates danger. The duty extends to integral features such as drains, including clearing blockages, and is absolute as a matter of public law. The statutory defence for civil damages does not qualify that public law duty. A claim based only on failure to clean an omitted area is an omission claim. A claim may proceed where cleaning may have positively made the highway more dangerous or pushed material into the relevant area.

Judith Valentine appealed from the decision of His Honour Judge Knight QC in the Central London County Court, which struck out claims arising from her husband’s fatal motorcycle accident on the A4 Great West Road. The pleaded cause was extensive gravel or loose debris on a highway area adjoining a commercial car-park entrance.

The claim against Transport for London alleged breach of section 41 of the Highways Act 1980. The claim against the London Borough of Hounslow was framed in negligence, based on its road-cleaning operations and alleged failures to inspect, clean and maintain the area. The central issues were whether the surface material fell within the section 41 duty and whether Hounslow’s cleaning activities could support a negligence claim despite the distinction between acts and omissions.

1. Transport for London. The appeal was dismissed. Section 41 of the Highways Act 1980 imposes an absolute public law duty to maintain the structure and fabric of the highway. It does not impose a duty to remove loose surface-lying material, obstructions or spillages. The distinction applies whether the material is recent or long-standing and whether or not it creates danger.
2. The duty includes integral parts of the highway, such as drains. Clearing a blocked drain may constitute maintenance or repair because it concerns the road’s structure and fabric. That principle is consistent with Goodes and does not extend the duty to surface deposits. The section 58 statutory defence concerns civil claims for damages and does not qualify the underlying public law duty. Section 150 provides a separate, qualified obligation concerning obstructions and does not enlarge section 41.
3. The amendment made by the Railways and Transport Safety Act 2003 for snow and ice reinforces the general position. Any broader alteration of the statutory scheme is for Parliament. The pleaded case concerned foreign material lying loose on the surface, not deterioration or break-up of the highway itself. It therefore had no real prospect of success and was properly struck out under CPR 3.4(2) and CPR 24.2(a)(ii).
4. Hounslow. The appeal was allowed. A statutory power or broad statutory duty to clean does not, without more, create a common law duty to undertake the activity. A complaint that the authority omitted one area from an otherwise general cleaning operation is substantively an omission. However, the pleaded case could be developed as a positive negligent act if the cleaning operation made the road more dangerous, created a trap, or pushed grit into the area where the accident occurred. Those possibilities were not necessarily defeated by Stovin v Wise or Gorringe v Calderdale BC.
5. The claim against Hounslow was permitted to proceed on those pleaded bases. The judgment did not decide that either case would succeed.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 1358: appeal dismissed against Transport for London and allowed against the London Borough of Hounslow.
• Central London County Court — His Honour Judge Knight QC struck out the claims. The appeal arose from that decision.