Maintenance of highway — Standing water caused by blocked drains Appellant’s department settling claims and seeking indemnity from maintaining agents — Section 41 of Highways Act 1980 — Whether duty to maintain extending to highway drains — Whether duty requiring clearing of blockages — Appeal allowed
The appellant’s department settled various claims brought against it in respect of accidents caused by standing water on the roads. In each case, the claimants had relied upon a breach of the department’s duty to maintain the highway, pursuant to section 41(1) of the Highways Act 1980. The appellant’s department brought proceedings under CPR 20 to recover its outlay from its maintaining agents, the respondents. The latter contended that the section 41 duty did not encompass a duty to maintain the highway drains and that, accordingly, the appellant’s department had not been liable and was not entitled to recover from the respondents.
A preliminary issue was tried as to the extent of the section 41 duty, on the assumption that the standing water was the result of long-standing blockages of the highway drains by silt, debris and vegetation. The judge held that the duty was confined to keeping the road surface in repair and did not extend to obstructions that, although they rendered the highway less commodious, did not damage its surface. He considered that Burnside v Emerson [1968] 1 WLR 1490, which was the authority for the proposition that the duty to repair included the drainage system, had been overruled by subsequent cases.
