Flooded roads

Flooded roads

Are there any legal requirements for councils to provide a specified number of gullies or drains in road gutters? The A230 near me has a considerable flow of rainwater after even moderate rain, as the gullies are hundreds of metres apart. It forces me to cycle further into the road than I want to.

Iain Sturges

Standing water on a road surface is a hazard for cyclists and other road users. Tyres are more likely to lose traction and it is difficult to see hazards beneath the water such as potholes.

There is no legal requirement for a specific number of gullies or drains, but I have pursued claims against highway authorities alleging failure to maintain drains or gullies. A highway authority has a statutory duty to maintain the highway pursuant to Section 41(1) of the Highways Act, 1980. Does the highway authority’s duty to maintain the highway extend to its drainage system? The leading authority on this is the 1968 case of Burnside v Emerson, considered by the celebrated Judge Lord Denning (then the Master of the Rolls). In that case, the plaintiffs (prior to 1998, claimants were called plaintiffs) were injured when their car, travelling at about 25mph in very wet conditions, was struck by another car, which swerved on entering a pool of water on the road.

There was evidence that the other car must have been travelling at approximately 50mph at the time of collision; its driver was killed. There was also evidence that the particular part of the road was frequently flooded in wet weather and that this was due: (a) to a drain not being placed at the lowest part of the road; and (b) to a lack of cleaning of the drain by the highway authority. A claim was brought against the highway authority under the Highways Act 1959 (the previous version of the 1980 Act).

Lord Denning MR held where there is a permanent danger in the highway by reason of non-repair, failure to maintain may be inferred. Where there is a transient danger due to the elements, the existence of danger for a short time is not evidence of a failure to maintain. In this case, Lord Denning MR upheld the findings of the trial judge that the plaintiffs had established a cause of action against the highway authority because it failed to maintain the drainage gully, which had not been cleared of detritus and vegetation, thus causing the standing water.

It has been argued by some highway authorities that Lord Denning’s case is no longer good law. However, in 2006 the Court of Appeal in DETR v Mott MacDonald held that the highway authority’s duty to maintain the highway did extend to drains and gullies, not just the road surface. So it remains possible to pursue a claim for damages if the injury or death was caused by a failure to maintain.

Paul Kitson

 

This was first published in the June / July 2014 edition of CTC's Cycle magazine.

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