C5: Highways

Question 1

What are the main legislation around highways?

Answer 1

The Highways Act 1980

And its amendments:

Infrastructure Act 2015
Railways and Transport Safety Act 2003

And

Countryside and Rights of Way Act 2000 (CRoW 2000)

Question 2

Does ‘highway’ have a defined meaning in statutory or common law?

Answer 2

Not specifically, although s328 HA 1980 attempts to define the meaning of it.

Willis J defined a highway in a case: “a highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance”.

Lord Briggs later said “There is in my view no single meaning of highway at common law… When used within a statutory formula…the word necessarily takes its meaning from the context in which it is used”.

Question 3

What are the three kinds of highways according to common law? How about statute?

Answer 3

Common law:

1. A cartway or carriageway: a public right of way, a) on foot, b) riding a horse or c) for vehicles and livestock.
2. A bridleway: a public right of way, a) on foot, b) riding a horse
3. A footpath: a public right of way, a) on foot

Statute:

s329 HA 1980 gives similar definitions of these main types of highway.

Question 4

What does s41 of the HA 1980 provide?

Answer 4

s41 HA 1980 provides that the highway authority is under a duty to MAINTAIN any highway which is maintainable at PUBLIC EXPENSE.

Question 5

Can a highway authority pass responsibility for the highway on to someone else? What kind of duty is that?

Answer 5

The highway authority has a non-delegable statutory (and common law) duty, which means that the highway authority cannot pass responsibility to another party (similar to the duty employers owe to their employees).

Question 6

Could the highway authority be an ‘occupier’ of the highway?

Answer 6

No. A case tried to argue that the highway authority was an “occupier” of the highway and therefore owed the common duty of care under the Occupiers’ Liability Act 1957. This was rejected by the Lords, who stated that even in the case of occupiers of land, there was no duty to give warning of obvious dangers.

People had to accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others. The highway authority was not an occupier of the highway and did not owe the common duty of care.

Question 7

What does and doesn’t the highway authority’s duty to maintain cover?

Answer 7

The duty to maintain covers repair and maintenance (i.e. keeping in working order), but not making improvements or giving warnings about normal road conditions.

Question 8

What is ‘maintenance’ defined as under s329(1) of the HA 1980?

Answer 8

Under s329(1) of the 1980 Act, “maintenance” is defined in terms that it “includes repair” so that it is plain that the fabric of the highway itself has to be kept in repair.

Question 9

What happened to the duty of removing surface-lying material?

Answer 9

Although the courts used to hold that the highway authority’s duty extended to removing surface-lying material, Valentine [2010] found that it did not. Her husband died after skidding on gravel and loose debris on the surface of the A4. Instead, the local authorities’ statutory duty to repair was confined to maintaining the structure and fabric of the road.

Question 10

What does repair mean in the context of duty to maintain?

Answer 10

Repair means making good defects in the road.

Question 11

Under which area(s) of tort might liability arise under the Highways Act 1980?

Answer 11

In nuisance, negligence or for breach of a statutory duty. However, such liability is limited to personal injury and damage to property to those using the highway, and not to an adjoining landowner whose business has suffered because of the condition of the highway (as in Wentworth v Wilts CC [1993]).

Question 12

Are highway authorities bound by their duty to maintain to prevent or remove moss on the surface of the highway?

Answer 12

No. Rollinson v Dudley Metropolitan Borough Council [2015] the court held that the presence of moss or algae did not amount to material disturbance or damage to a road, pavement or pathway or the surface and could not be said to render a pathway “out of repair”. It confirmed that authorities have no duty under s41 to prevent or remove moss on the surface of the highway.

Question 13

Give some examples of what might be considered defects in the surface of a highway.

Answer 13

Examples would include: a hole or bump; a slope; a dip; or a raised edge.

Question 14

What are transient hazards?

Answer 14

Transient or temporary hazards can include snow and ice (transient dangers brought on by foul weather) or other temporary hazards.

Question 15

What does the Railways and Transport Safety Act 2003 state about snow and ice?

Answer 15

Railways and Transport Safety Act 2003 amended s41 HA 1980 by adding s41(1A): In particular, a highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.

Question 16

What is the defence for highway authorities in s58 HA 1980 and what must they prove to claim that defence?

Answer 16

s58: The statutory defence of reasonable care.

The authority must prove that they took reasonable care to maintain the highway and make sure it was not dangerous for traffic.

Question 17

List the 5 factors contained in s58(2) HA 1980 that a court must take account of when considering whether the defence is applicable.

Answer 17

The Act gives a list of statutory factors the court shall consider when assessing the applicability of the defence. These are contained in s58(2):

• the CHARACTER (nature) of the highway, and the traffic which was reasonably to be expected to use it;
• the standard of maintenance APPROPRIATE for a highway of that character and used by such traffic (e.g. location/busy);
• the STATE OF REPAIR in which a reasonable person would have expected to find the highway;
• whether the highway authority KNEW, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was LIKELY TO CAUSE DANGER to users of the highway; and
• where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what WARNING NOTICES of its condition had been displayed.

Question 18

On a practicable level, what does the highway authority do to prove its defence of reasonable care (s58)?

Answer 18

They inspect the relevant highway regularly and remedy any defects found. This has led to increased scrutiny on local authority systems and procedures for dealing with highway repairs.

Question 19

Which 3 things must a claimant prove for a claim in negligence for breach of s41 HA 1980?

Answer 19

1) That the highway was DANGEROUS in the sense that, in the ordinary course of human affairs, danger may REASONABLY have been ANTICIPATED from its continued use by the public.
2) that the dangerous condition was created by a FAILURE TO MAINTAIN or repair; and
3) that the injury RESULTED from such failure.

Question 20

What is the journey of the burden of proof for highway authority cases?

Answer 20

A claimant has to prove a dangerous defect which caused the accident and the burden of proof then moves to the defendant to show that it took such care as was reasonable (but the accident happened in any event).

Question 21

What is the test for the defence of the highway authority and which case is this drawn from?

Answer 21

The test is the foreseeability of danger in the eyes of a reasonable person, following Mills v Barnsley MBC [1992], where the claimant tripped when she caught her heel in a hole of a paving brick, 1 inch deep. On appeal it was accepted that the inspection system of once a month was reasonable and the hole was minor, the risk to pedestrians was low, and the highway was not, therefore, dangerous. The judge said that ‘our tort law should not impose unreasonably high standards’. E.g. a pavement shouldn’t be judged against a bowling green.

Question 22

Is a lack of resources in the highway authority a sufficient reason for having an inadequate system? Provide 2 case examples.

Answer 22

No, see:

• Wilkinson v City of York Council [2011] - cycling, pothole, council did not have resources for 3 monthly inspections, only 12 monthly inspections or;
• Crawley v Barnsley Metropolitan Borough Council [2017] - Friday reported pothole, Saturday injury, no weekend inspections because of lack of resources on the weekend.

Question 23

Summarise the Highways Act 1980: S41 statutory duty to maintain in three points:

What kind of duty?
How far does duty go?
What does duty include?

Answer 23

• Highway authority is under a non-delegable duty to maintain any highway which is maintainable at public expense.
• Duty to maintain extends to repair and maintenance of the fabric of the highway but not improvements.
• Duty includes transient hazards as snow and ice, unlikely to include other types such as surface-lying material.

Question 24

Summarise the Highways Act 1980: S58 statutory defence of reasonable care in three points:

What is the defence?
What do the courts consider for defence?
Which factors will be relevant for defence?

Answer 24

• Defence is to show authority took all reasonable steps to fulfil duty to maintain in the particular circumstances.
• Mandatory statutory factors are what the court will consider in assessing reasonableness.
• Nature and location of the highway may be relevant as well as whether the authority knew or should have known the highway is dangerous.

Question 25

What kinds of tort might arise when looking at public rights of way?

Answer 25

- Trespass (if we stray from a public right of way onto private land) - Negligence (if an accident on a public right of way maintainable at public expense due to its poor repair) - Occupiers’ liability (for statutory duties for defective premises owed by a private landowner, even towards trespassers.)

Question 26

What is a public right of way and what types are there?

Answer 26

A public right of way is a type of highway on which the public can travel. There are three kinds: 1) footpaths, where the only right the public have is to walk 2) bridleways, where there is a public right to walk, ride or cycle 3) road (carriageway), where there is a public right to walk, ride, cycle or ride motor vehicles.

Question 27

How do highway authorities keep track of their highways, which they owe a duty to maintain?

Answer 27

Using ‘the definitive list’ - s36(b) Highways Act 1980 obliges authorities to keep a list of highways within their areas which are maintainable at public expense. It often is not definitive.

Question 28

How was it proven that a path in a council estate was a highway maintainable at public expense?

Answer 28

See Gulliksen v Pembrokeshire County Council [2002], where a council estate path was deemed to be the council’s responsibility. C was walking on a path through a council estate and was injured when he tripped on a dangerous defect in the path. The Court of Appeal held that since no local authority could provide housing except under statutory authority (Housing Act powers), it was to be taken that the paths which were part of the council estate were constructed pursuant to Housing Act powers and by operation of the Highways Act the path was therefore a highway maintainable at public expense.

Question 29

How are public rights of way created?

Answer 29

In theory most paths (or other type of highway) become rights of way because the owner dedicates them to public use. In fact, very few paths have been formally dedicated, but the common law assumes that if the public uses a path without interference for some period of time – set by statute at 20 years – then the owner had intended to dedicate it as a right of way. This is contained in s31 Highways Act 1980.

Question 30

What does ‘once a highway, always a highway’ mean?

Answer 30

Once a highway has come into being by whatever means it continues indefinitely no matter whether it is used or not.

Question 31

What can a highway authority do to stop a highway from being a highway?

Answer 31

A highway authority can order a diversion where it believes that it is in the best interest of an owner or occupier that the line be diverted. (ss118-121 HA 1980). Under s118 it can also extinguish a right of way completely on the grounds that the right of way is now not needed for public use. The only factor is whether the path is likely to be used by the public.

Question 32

Explain why a person who is injured when using a public right of way cannot make a claim against the landowner under the Occupiers’ Liability Act 1957. Name a case to support your answer.

Answer 32

No landowner over which a public right of way exists owes a duty to the public in relation to nonfeasance (lack or repairs). This is justified because it is enough for a landowner to have a public right of way imposed over their land, without having to make sure the right of way is kept in good repair.

Question 33

Who would be more successful in a claim? A trespasser on private land which isn’t a public right of way, or a person injured whilst lawfully being present on a public right of way. Why?

Answer 33

A trespasser would have more rights, if they were proven to be a trespasser under the Occupiers’ Liability Act 1984, because a public landowner wouldn’t usually be liable for nonfeasance for public rights of way, due to already being imposed with a public right of way on their land. So, unless liability can be established under a relevant statutory regime such as occupiers’ liability, a common law claim in negligence against a private landowner for failure to repair a public right of way is unlikely to be successful.

Question 34

Is a person lawfully present on a public right of way a ‘visitor’ under the Occupiers’ Liability Act 1957?

Answer 34

No, that person is not a visitor to the land, or a trespasser. They are just using the public right of way.

Question 35

How did the Countryside and Rights of Way Act 2000 (CRoW 2000) improve rights of way legislation?

Answer 35

By encouraging new routes and clarifying uncertainties about what rights already exist.

Question 36

Which legislation introduced a right of way for open-air recreation to 'access land'?

Answer 36

Part 1 CRoW 2000 introduced a right of way for open-air recreation to ‘access land’, with s2(1) providing: Any person is entitled to enter and remain on any access land for the purposes of open-air recreation, if and so long as– (a) he does so without breaking or damaging any wall, fence, hedge, stile or gate, and (b) he observes the general restrictions in Schedule 2.

Question 37

What is ‘access land’ defined as? What does it not include?

Answer 37

Access land is defined in s1(2) CRoW 2000 as open country (e.g. mountain, moor, heath and down), registered common land, coastal margin and any land that has been voluntarily dedicated as access land in England. It doesn’t include land that is ‘excepted land’.

Question 38

What is excepted land?

Answer 38

Under CRoW 2000, excepted land is land that does not have public access.

Question 39

What does Schedule 2 CRoW 2000 contain?

Answer 39

Schedule 2 CRoW 2000 contains a number of general restrictions, which must be observed by a person exercising the right of way over access land and the coastal margin. - Damaging activities like lighting fires or destroying plants aren’t allowed. - Some recreational activities (e.g. cycling, horse riding, camping) are also excluded from the right, but may continue if they are currently enjoyed under other legislation, or where the landowner is content for these to continue.

Question 40

According to s12(1) CRoW 2000, does giving public a right of way to access land to use it for open-air recreation) increase or not increase liability of a landowner in tort?

Answer 40

In terms of liability of a landowner in tort, it is clear from s12(1) that the general right in s2(1) “does not increase the liability…of a person interested in the access land or any adjoining land in respect of the state of the land or of things done or omitted to be done on the land”. It is clear therefore that it is simply a right of access for open-air recreation and does not impose any statutory duties on land owners over and above those already existing in law.

Question 41

According to CRoW 200, is a person exercising the right of way over access land regarded as a ‘visitor’ for the purposes of OLA 1957?

Answer 41

No, CRoW 2000 makes it clear that a person exercising the right of way over access land is not to be regarded as a “visitor” for the purposes of the Occupiers’ Liability Act 1957, as provided by s13(1).

Question 42

Can a landowner restrict access to access land at all under CRoW 2000?

Answer 42

A landowner may also exclude the public who would otherwise have a right of way for up to 28 days a year under s22(1) CRoW 2000.

Question 43

What is a local authority ‘adopted’ highway?

Answer 43

The process of adoption simply means that the relevant highway authority has agreed to take on the maintenance of a particular road or highway at public expense, thus giving rise to statutory obligations and protections.

Question 44

Where are local authority ‘adopted’ highways most often found?

Answer 44

In new housing developments, where land is in private ownership (e.g. developer).

Question 45

What is the key provision for adoption of a private road in Highways Act 1980?

Answer 45

The key provision for adoption of a private road is s38(1) Highways Act 1980 which states: where an agreement is made under this subsection the highway to which the agreement relates shall, on such date as may be specified in the agreement, become for the purposes of this Act a highway maintainable at the public expense and the liability of that person to maintain the highway shall be extinguished.

Question 46

When will adoption of a highway by a local authority normally take place?

Answer 46

At a pre-agreed period of time after completion of the highway works, typically 12 months.

Question 47

Who is responsible for the newly built highway until the local authority adopts it?

Answer 47

Until that final adoption takes place, the developer remains responsible for their maintenance: both for rectification of defects in the works and for ongoing routine maintenance. After the agreed maintenance period, the local authority takes on responsibility for maintenance.

Question 48

Highways Act 1980 - what are the important sections?

Answer 48

Highways Act 1980 - s31 (20 years dedication for a public right of way), s36 (which type of highways are maintainable), s41 (duty to maintain), s58 (defence), ss118-121 (diverting or extinguishing a public right of way), ss328-329 (definition of highway),

Question 49

Are repainting signs improvements or do they fall within the statutory duty to maintain?

Answer 49

Gorringe v Calderdale Metropolitan Borough Council [2004] the claimant had a road traffic accident when her car skidded onto the opposite side of the road hitting a bus coming in the other direction. The layout of the land over which the road passed was such that because of a dip, the driver’s view was obscured and in particular, it was easy to miss the fact that there was a sharp left-hand bend approaching. The “Slow” sign was old and the paint had faded, making it more difficult to see the warning. The claimant claimed against the local authority – the designated authority for the public roads in this area – for the breach of the statutory duty to maintain under s41, though this was rejected by the House of Lords, which held that painting and erecting signs were improvements and did not fall within the statutory duty to maintain. The dip in the road was obvious and the claimant should have taken more care.

Question 50

When a road is more susceptible to damage, do highway authorities need to make their checks more regular? Case example.

Answer 50

Jacobs v Hampshire County Council [2013] a cyclist was injured after hitting a hole in the road caused by water penetration at a point where a tarmac surface was joined to a cobbled surface. The evidence was that this sort of joint was particularly susceptible to water penetration damage within any two-month period. The highway authority’s regular six-monthly inspection was therefore held to be inadequate and it was liable for a breach of its statutory duty.

Question 51

How important are inspections for the duty to maintain? Case example.

Answer 51

Wilkinson v City of York Council [2011] the claimant was cycling along Whitby Drive in York when her front wheel hit a pothole throwing her over the handlebars. The pothole was said to have been 30cm across and 4cm deep. The last inspection was ten months pre-accident and was subject to 12 monthly inspections. It should have been at three monthly intervals but due to resources this was not possible. The claimant won at first instance, subject to a 50 per cent deduction for contributory negligence. The council appealed, though this was rejected on the basis that there is nothing in s58 which permits budgetary considerations. Toulson LJ stated: “Section 58 was designed simply to afford a defence to a claim for damages brought against a highway authority which was able to demonstrate that it had done all that was reasonably necessary to make the road safe for users, not an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe”.

Question 52

Would the highway authority be liable if a pothole was reported, but an accident happened over a weekend when there was no availability of the authority to check the pothole? Case example.

Answer 52

Crawley v Barnsley Metropolitan Borough Council [2017]. A member of the public reported a pothole to the highway authority at 4.20 p.m. on a Friday. The highway authority’s system was that defects are inspected on the next working day (in this case Monday), unless it was reported by the emergency services or was in a sensitive location. The decision to delay inspection was quite simply due to lack of resources on a weekend. On Saturday evening Mr Crawley was out jogging, fell in the pothole and was injured. The judge at first instance (Robinson J) found that the pothole was “dangerous and actionable” but that the defendant’s system was reasonable. Mr Crawley appealed. An appeal to a high court judge reversed that decision and found in favour of Mr Crawley. The Council further appealed, but this was dismissed and they were held liable for the injuries. The key question for the Court of Appeal was whether it was reasonable to have a “next day” service for defects except at the weekend. Jackson LJ’s view was that the system of inspection was reasonable, highlighting that s58 refers to the operation of a repairs system as being reasonable in all the circumstances, in this case a “weekend” could be regarded as a “circumstance”. However, the arrangements affecting late Friday and the weekend were a matter of resources. It was common ground that lack of resources could not justify a failure to provide a reasonable system, following Wilkinson above. The evidence suggested this was a serious defect and required immediate attention, with Briggs LJ stating: “The council’s system failed the s.58 test…because the system suffered from the built-in flaw that reports of potentially serious defects would not be evaluated at all by someone with the requisite skill out of working hours, unless they came from members of the emergency services.”

Question 53

Can a sign negate a presumption that a highway is not for public use, even though it has been used for over 20 years? Case example.

Answer 53

Ley v Devon County Council (2007), the claimant lived in a flat which was part of a complex built by Exeter City Council. She was injured when she tripped on a dangerous defect on a path which was near to the flat. There was a “residents only” sign on the path. At first instance the judge determined that the sign was to prevent non-residents from parking in the area, that the path was not restricted as to who could use it, and that the path was therefore a highway maintainable at public expense. Alternatively, he said, the path was deemed to have been dedicated as a highway by virtue of public use for 20 years (and there was no evidence to rebut the dedication). On appeal it was held that the path was clearly private property (on all the evidence, including the sign). Even if it could be inferred that there had been some use by the public over 20 years, the sign was sufficiently detailed to negate the dedication. Thus there was not a highway at all.