Widening of the scope of the duty to maintain public highways (Department for Transport, Environment and the Regions v Mott MacDonald Ltd and others, 2006)
The Court of Appeal last week overturned the decision of the High Court in Department for Transport, Environment and the Regions -v- Mott MacDonald Limited and others (2006) and held that a highway authority is responsible under the Highways Act 1980 s.41(1) for accidents caused by standing water on the highway, resulting from a blocked drain or inadequate drainage system. The Secretary of State had admitted liability in three claims arising out of separate road accidents and subsequently brought Part 20 claims against the maintaining agents to recover its outlay. The Court of Appeal 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 decision at first instance was seen as limiting the scope of responsibility of highway authorities from that which had been generally understood since 1968. Whilst 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 - it can also be seen as restoring the 'status quo'.
In the context of a DBFO Contract, liabilities of this kind will almost certainly be caught by the wide indemnities typically required by the Highways Agency. However, it would normally be anticipated that the DBFO Co would have an opportunity to defend the original claim brought against the Highways Agency whereas in this case the claims were settled by the Highways Agency itself.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
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The original publication date for this article was 08/08/2006.
