Running Water, Ineffective Drains and Highway Maintenance Hodges v Somerset County Council By Geoffrey Brown and Nathan Peacey Running water can be a cause of problems, not least on the roads. A highway authority may find that water is prone to run on to the carriageway from adjacent land, especially in a hilly area. The adjacent land may not have proper drainage. Or its drainage system may not be properly maintained. Or there may simply be too much water flowing on to and across the land for its drains to cope. The result may be anything from a trickle to a torrent of water running on to and across the highway. What steps may a highway authority then be obliged to take? This is a question which came before the High Court in Hodges v Somerset CC 1. Until recently, the answer to this question might have seemed clear enough that a highway authority charged with maintenance of a highway should ensure that there is an adequate system of drainage in place to prevent the occurrence of hazards. Indeed, it had been said by Diplock LJ in the case of Burnside v Emerson 2 that the maintenance required of a highway authority under its statutory duty 3 includes providing an adequate system of drainage for the road. The Burnside case involved a dip in the road, where a driver encountered a pool of storm water. The water appears to have accumulated there due to a number of factors, for all of 1 2 3 Hallett J. 9 April 2003. CA. [1968] 1 WLR 1490. Under s.41 of the Highways Act 1980. 1
which the hapless highway authority were held responsible. In the first place, the authority having reduced the depth of the dip by raising the height of the carriageway, failed to ensure that the drain was resited at the lowest point of the dip. Secondly, they were found to have failed to keep the grips or gullies in such a condition that they would take the water from the road 4. Thirdly, they had failed to see that the ditch was properly cleared out. Effectively, then, the authority s duty was taken to extend to such aspects of and in relation to provision of an adequate drainage system as relocating a drain to its optimum level and clearing out a ditch. The notion that a highway authority s statutory duty requires it to provide an adequate drainage system also led to a finding of liability in Thoburn v Northumberland CC 5. In that case, the claimant had seen fit to drive his car into a dip where the road was flooded to a depth of some feet, as a result of a combination of heavy rainfall and meltwater. The water had been channelled onto the carriageway by blockage of a drain. The Court of Appeal felt able to hold the highway authority liable, even though the section of the drain which became blocked was in the ownership of a local farmer. This was in circumstances where the intended function of the ditch was to prevent water running from the adjacent land on to the road and where the Council had accordingly undertaken maintenance of the other sections of the ditch which the farmer did not own. 4 The report is not specific as to quite what this failure involved (if and in so far as it was different from the other failures). 5 CA. 19.1.99 (unrep). 2
Then, however, the House of Lords applied their judicial minds to the nature of the highway authority s statutory duty in the case of Goodes v East Sussex 6. The point which their Lordships were required to decide in that case was whether the duty required of a highway authority that it take steps to prevent the formation of ice on the surface of the highway. The case therefore involved a different form of hazard. Nonetheless, the process of reasoning which they adopted, in coming to the decision that the duty did not extend to keeping the surface free of ice, provided a foundation for a challenge to the notion that a highway authority must provide an adequate drainage system as part its statutory duty. This challenge was duly taken up by the defendants in the Hodges case. Mr Hodges story is a sad one. On a glorious Spring bank holiday, he was out on his motor cycle with some friends. They chose a scenic route through a part of Somerset where the Quantock Hills run down to the road. Unfortunately, as he was negotiating a bend, he lost control of his motor cycle. His injuries left him seriously disabled and unable to continue his career as a police officer. Mr Hodges attributed his accident to water on the road surface. This flowed on to the road from a private lane leading down from the hillside, carrying with it a certain amount of gravel from the surface of the lane. The water had come from springs in the hillside. The lie of the land channelled it on to the lane. Whilst there was a drainage system along and under the lane, which should have diverted much of the water before it could reach the highway, this has not been maintained by the local landowners and occupiers. In consequence, water could and did run on to the highway. 6 [2000] 1 WLR 1356. 3
In the event, Mr Hodges failed to establish that it was the water, or the gravel, which caused him to lose control of his motor cycle. He also failed to establish that the water and the gravel rendered the highway dangerous it was found to be reasonably passable for the ordinary traffic of the neighbourhood. The case is, however, of general interest to highway authorities on account of what the Judge had to say about the extent of their statutory duty. The Claimant relied on Diplock LJ in Burnside and argued that the highway authority had a positive duty to provide an adequate system of drainage. The Judge approached the law on the basis that it was clear from what was said by the House of Lords in Goodes, and from an earlier judgment of Lord Denning s (of which they approved) 7, that the highway authority s statutory duty to maintain the highway is limited to repair of the fabric of the highway. She was not prepared to hold that the House of Lords had intended to overrule what Diplock LJ had said in Burnside. She did, however, indicate that his observation must now be read subject to the qualification that it applies only where the drainage in question is itself part of the fabric of the road and is in need of repair. It followed that Somerset CC could be, and were, under no duty to improve or maintain the drainage system to the private lane. It was a feature of the case that Somerset CC had in fact installed some drains at the foot of the lane, adjacent to the carriageway. Whilst these were not actually sited on the carriageway, they were connected to the highway drainage system. For the purposes of 7 Haydon v Kent CC [1978] 1 QB 343. 4
her judgment, the Judge was prepared to assume (but did not in fact decide) that these drains could be said to be part of the fabric of the highway. However, this did not have any bearing on the outcome of the case, because those drains were not themselves in disrepair. They were not adequate or sufficient to cope with the flow of water which disrepair of the lane drainage system allowed to flow down the lane. Indeed, they were not located in positions where they would effectively intercept that flow. But there could be and was no breach of the Council s statutory duty, if and when these drains were not in disrepair. It was also a feature of the case that Somerset CC had in fact taken steps to try to prevent water running on to the highway. They had installed the drains at the foot of the lane. They had also sent workmen and a lorry up the lane to clear out the lane drains on previous occasions when they had received complaints about water running on to the highway. The Judge accordingly indicated that she would have had no hesitation in saying that they would have been entitled to the benefit of the statutory defence under s.58 of the Act, had she found there to have been disrepair of the highway. The Judge also had no difficulty in rejecting an alternative argument put forward on Mr Hodges behalf that the Council owed him a duty to improve the lane drainage on the basis that it had a statutory power to undertake such work and that this gave rise to a common law duty of care. On the authorities, such an argument could only succeed if the Council could be said to have acted irrationally, which the Judge was satisfied was not the case. Mr Hodges would also have had to establish there were exceptional grounds for 5
holding that the policy of the statute required compensation to be paid to persons who suffer loss because the power is not exercised 8. The case may therefore be of interest to highway authorities for a number of reasons. However, the most important message may lie in the Judge s approach to the question whether, and in what circumstances, a highway authority is under a duty to provide or improve drainage to prevent water running on to the carriageway. On the basis of her analysis, the authority need only ensure that the drains which actually form part of the highway are in a proper state of repair, in order for it to comply with its statutory duty of maintenance. Moreover, the fact that an authority also has power to undertake other works on adjacent land for the purpose of preventing water run off on to the highway 9 does not mean it is under a duty to undertake such works. Somerset CC s duty therefore did not extend to installation of a new and adequate drainage system on private land. ----------------------------------------------------------------- Geoffrey Brown is a barrister at 39 Essex Street, London WC2. Nathan Peacey is an associate at Bond Pearce, solicitors. They acted for Somerset CC in their defence of Mr Hodges claim. Copyright Geoffrey Brown, 2003 8 9 See Stovin v Wise [1996] AC 923. See Highways Act 1980, s.100. 6