You are in: Home Page | About Thompsons | Publications | Law Bulletins | September 2006

Law Bulletin - September 2006

Widening of the scope of the duty to maintain public highways

The Court of Appeal held that a highway authority can be liable under the Highways Act 1980 s.41(1) for accidents caused by standing water on the highway, resulting from a blocked drain.

They held that the duty to maintain the highway applied not only to the surface of the highway used by traffic or pedestrians, but it extended to highway drains beneath or beyond the traffic surface, or in the central reservation. The duty to maintain highway drains required not only the repair of physical defects in the fabric of the drains, but also the clearing of blockages.

The Court of Appeal's ruling has been reported as widening the scope of the duty to maintain public highways – potentially meaning extra costs and liabilities for contractors and highway authorities – but they said they were simply re-stating the case of Burnside -v- Emerson (1968)1 WLR 490.

Department for Transport, Environment and the Regions -v- Mott MacDonald Ltd and others. CA 2006.

Animals Act – remember you have to prove characteristics to get “strict” liability

The claimant’s vehicle slowly passed a horse being ridden in the same direction. The horse moved into the road just as the car passed. Neither the rider nor the car driver could then avoid a collision.

The Court of Appeal overturned the Judge’s findings at first instance that the rider was strictly liable for his horse’s actions.

For strict liability under the Animals’ Act you have to prove, among other things:
“the likelihood of the damage, or of it being severe was due to the characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances”.

There were no exceptional characteristics of a horse here:

-The horse’s weight – which had caused the severe damage – was a normal characteristic.

-The propensity for the horse to move otherwise than directed was not a characteristic of an animal found “at a particular time or in particular circumstances” compared with ,say, the reaction of a horse bolting in fright as in Mirvahedy -v- Henley (2003) UKHL 16.

The accident was mishap, without blame or liability under the provisions of s.2 of the act

Clark -v- Bowlt. 2006 EWCA Civ 978