Neutral Citation Number: [2010] EWCA Civ 1358

Case No: B3/2010/1282
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE KNIGHT QC
9MK01607
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/12/2010
Before :

THE CHANCELLOR OF THE HIGH COURT
LORD JUSTICE HUGHES
and
LORD JUSTICE AIKENS
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Between :

	Judith Valentine	Claimant/
Appellant	
	- and -		
	Transport for London
 -and-
The London Borough of Hounslow	Defendants/Respondent	

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Mr Andrew Prynne QC and Mr Paul Kilcoyne  (instructed by McKeowns) for the Appellant
Mr Adam Weitzman (instructed by Kennedys Law LLP) for the 1st Defendant
Mr Quintin Tudor-Evans (instructed by Watmores) for the 2nd Defendant

Hearing dates : 2nd November 2010
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Approved Judgment

Lord Justice Hughes : 
1.	This is an appeal by the claimant from the decision of the Judge to strike out her claims.  Her claims arose from what was alleged to be an unsafe accumulation of surface grit at the edge of the highway.  The appeal raises questions about the extent of the duty owed to road users by (1) the highway authority (the first defendants, Transport for London) and (2) the local council (the second defendants, the London Borough of Hounslow) which undertook some cleaning operations on the road.  
2.	The A4 Great West Road is, at Brentford, an urban dual carriageway with three lanes in each direction.  It is not a motorway, and there are numerous entrances/exits and junctions.  One of those is the entrance/exit for a sizeable commercial open car park alongside the highway, which serves a mixture of shops, offices and other business premises. The car park is not part of the highway.  Its entrance/exit is formed, in effect, of a T junction with the highway.  That T junction is slightly splayed, so that there is a tapering sliver of tarmac at either side of it, lying just to the side of what is otherwise the kerb line of the nearside lane of the highway.  The splays, although they have been described as ‘slip roads’ are not acceleration or deceleration lanes and are much narrower than slip roads would be;  their surfaces are, however, likely to be traversed by the nearside wheels of a motor car using the entrance/exit and similarly by a two-wheeled vehicle. It is to be accepted for the purposes of this appeal that the splays form part of the highway.  Alongside the main road on its nearside beyond the kerb there is a grassed verge and beyond that a cycle path and footpath, all of which are interrupted where the entrance/exit crosses.
3.	On 4th April 2006 Mr Valentine was leaving the car park on his motorcycle and turning left onto the A4.  The pleaded case, which had to be assumed accurate for the purposes of considering an application to strike out the claim, read as follows:
“As the Claimant [sic] attempted to exit from the slip road his motor cycle skidded on extensive gravel/loose debris present on the road surface located between the cycle path and the main carriageway of the A4 causing [him] to lose balance and to be thrown from his motor cycle and falling to the ground.”
Although no evidence has of course yet been given, the photographs which we have seen appear, at first sight at least, to show a significant accumulation of sandy-coloured grit or similar material on the slivers of road.  Mr Valentine certainly came off his motor cycle.  What appeared at first to be a minor injury very sadly turned out to develop into an acute subdural haematoma, and although he was taken the next day to hospital, it proved impossible to save him.  This claim was accordingly brought under the Fatal Accidents Act by his widow. 
4.	The first defendant, Transport for London (“TfL”), is the highway authority for the A4. The claimant’s particulars of claim allege that the London Borough of Hounslow (“Hounslow”), the second defendant, was the agent of TfL and as such charged with the responsibility for “maintaining, inspecting and cleaning” the road.  It should be recorded that Hounslow does not accept that that accurately describes its position. It seems that it may, however, be the ‘litter authority’ under the Environmental Protection Act 1990.  It is not, as I understand it, disputed that Hounslow did undertake some cleaning or sweeping of the road surface.  The exact capacity in which it did so is at present not fully resolved.  Once again, however, for the purposes of considering the application to strike out, the claimant’s pleaded case must be assumed to be correct.  Moreover, as will be seen, the capacity is not in any event critical to the question which arises at this stage.      
5.	The claim against TfL is put squarely upon breach of statutory duty, under section 41 of the Highways Act 1980, to maintain the highway. At one time, the claimant also contended that TfL was liable for a breach of the separate statutory duty under s 150 to remove obstructions from the highway, but before the Judge it was conceded that no civil action lies for breach of that duty.  Similarly, although common law negligence was pleaded against TfL, the claimant abandoned any reliance upon it. 
6.	As against Hounslow, the claimant’s case is put wholly in common law negligence.  The particulars of negligence (originally asserted against both defendants but now relied on only against Hounslow), are:
“(ii)   failing to inspect and/or adequately inspect the said road;
(iii)  failing to devise an adequate system of cleansing.  The point at which the deceased lost control of his vehicle contained an unacceptable level of gravel/detritus.  Although the defendants had in place a system for cleaning the main A4 road, this system did not include an area between the cycle way and the main road junction where the deceased’s accident occurred;
(iv)    causing or permitting the surface of the highway to be in a dangerous condition by reason of loose gravel and debris;
(v)   failing to take any or any reasonable steps to clear the gravel/debris by sweeping/cleaning the highway;
(vi)   failing to institute or enforce any or any adequate system for the inspection and maintenance of the highway;
(vii)  failing to warn the deceased as to the nature of the road surface and in particular the presence of excessive gravel/debris;
(viii) failing to maintain and/or repair and/or keep clear the highway;
(ix)   causing or permitting the road to become a trap to traffic using the said road;
(x)     exposing the deceased to an unnecessary risk of injury.”
7.	The high point of the claimant’s case against Hounslow derives from evidence elicited at the inquest from its cleaning supervisor.  This was to the effect that Hounslow periodically swept the “channels”, that is to say alongside the kerbs on the nearside and at the central reservation, but that the machines did not divert from the straight line in order to sweep the slivers of tarmac either side of the carpark entrance/exit.  
TfL
8.	The judge struck out the claim against TfL on the simple basis that the duty to maintain does not extend to a duty to remove surface-lying material, obstructions or spillages, whether or not they result in some danger. In my view that conclusion was inescapable.  The law is very clearly established by the two leading authorities on such material.  The first is the minority judgment of Lord Denning MR in Haydon v Kent CC [1978] 1QB 343.  The second is the decision of the House of Lords in Goodes v East Sussex CC [2000] 1 WLR 1356, which is binding upon us, and in which the judgment of Lord Denning in Haydon was adopted and emphatically endorsed:  see in particular the speech of Lord Hoffman. The duty imposed by section 41 is a duty to maintain the fabric of the road, including its substructure such as its drains. The removal of surface-lying material which creates a danger is not within the section.  
9.	That this is the law may at first appear outdated, or anomalous, or unfortunate.  It is easy to think that where a serious accident has occurred because a danger was not removed from the highway, the authority responsible for that highway ought to be liable.  That is especially so, since in fact highway authorities do usually undertake the cleaning of at any rate major roads, and since they have a statutory defence to a private law civil action for damages if they can demonstrate that they have taken all such care as was in all the circumstances reasonably required to secure that the highway was not dangerous (now section 58 Highways Act 1980).  It is easy to find examples at the margins of the rule which appear anomalous, such as that debris blocking drains must be removed, because drains are part of the fabric of the road which must be maintained, whilst surface-lying debris does not have to be removed. 
10.	The reasons for the present legal position are set out very clearly in Haydon and in Goodes and it would not help to attempt here to re-state them in full.  They boil down to a combination of the historical development of the duty to maintain highways and the extensive consequences of an absolute duty to remove all surface-lying material from all highways from motorways to country footpaths. In short, the original common law duty to maintain the highway was absolute but was limited to maintenance of the fabric of the road and did not extend to the removal of surface-lying material.  The Highways Act 1959 and now the Act of 1980 do no more than give statutory effect to that same duty.  When civil liability for damages for breach of the duty was first introduced by the Highways (Miscellaneous Provisions) Act 1961, it was realised that it ought not to extend to every breach of the absolute duty, but only to a breach which involved lack of reasonable care in all the circumstances. The statutory solution might well have been to take the opportunity to modify the general duty to maintain and to limit it to a duty to take reasonable care to do so.  At the same time the duty could have been extended to cover the removal of surface-lying material.  But, for whatever reason, that was not done.  Instead, the statutory route taken was to impose civil liability but to create the statutory defence of reasonable care taken.  Thus that statutory defence applies only where a claimant seeks damages for breach of the duty.  It does not limit the absolute duty of the highway authority, which remains absolutely bound, as a matter of public law, to maintain the highway without any qualification, and thus whether or not any lack of reasonable care is involved.   
11.	It is true that the courts encounter the section 41 duty principally in the context of private law civil actions for damages consequent on personal injuries, such as the present. But the consequences of breach of the duty to maintain are by no means limited to susceptibility to such actions.  In many ways the greater consequence is the burden which falls upon the highway authority, and through it upon the taxpayer, to comply with the absolute duty.  That absolute duty is enforceable by a variety of public law remedies, including judicial review and complaint to the Crown Court under section 56. If the court finds that the highway is ‘out of repair’, an order to put it in repair must follow: s 56(2).  The consequences of the absolute nature of this liability are stressed in both Haydon (at 360C) and Goodes (at 1366A) as one of the reasons why the limitation of the duty to maintain remains even in modern times.  
12.	I do not overlook the fact that under a different section of the Act (s 150) a highway authority is under a duty to remove obstructions from the highway.  But the existence of that separate duty underlines the fact that section 41 does not embrace such an obligation. It is common ground that section 150 does not create a right of civil action for breach.  Moreover, whilst complaint of breach may be made to the magistrates’ court, section 150(3) charges that court to consider all the circumstances including the expected volume of traffic, the nature of the obstruction and the resources of the authority, before deciding whether or not to order removal.  That qualified sanction is to be contrasted with the position under section 56.  
13.	None of the valiant efforts of Mr Prynne QC, for the claimant, can overcome the plain fact that this court is bound by Goodes to hold that the removal of surface-lying material is not required by section 41.  That the surface-lying material in Goodes was snow and ice, and that therefore there were references in the speeches in the House of Lords to the particular difficulties presented by such emanations of weather conditions, does not mean that the rule is confined to snow and ice, and it is plain from the decision that it is not.  There is no doubt some force in the argument that blockage of drains by debris is in some respects not unlike a surface danger caused by an accumulation of debris, but that is simply an example of the inevitable difficulties which will arise at the margins of any legal rule.  If the duty to maintain applied to the removal of grit on the road, it would also have to apply to oil spillage, landslip, mud, trees etc, and to rural footpaths as to motorways.
14.	There may be a policy case for saying that history should not prevail in changed modern conditions and thus for altering the duty to maintain to a qualified, rather than an absolute, one, and then extending it to surface material. That, however, is the kind of reorganisation of the structure of highways provision in this country which has to be a matter for Parliament and not for the courts. 
15.	As a response to the decision in Goodes, Parliament did indeed enact a modification to the duty to maintain.  The Railways and Transport Safety Act 2003 inserted into section 41 a new subsection (1A) as follows:
“(1A)     In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”
That is precisely the kind of modification to the otherwise absolute nature of the duty to maintain which might with advantage be considered more generally. But the fact that it has been made only in relation to snow or ice and not, for example, to spillages of oil, landslips, mud or the accumulation of grit, only serves to underline what is otherwise the general rule.  
16.	Mr Prynne QC persuaded the judge to give leave to appeal on the basis that there might be uncertainty about a line to be drawn between Goodes on the one hand and Burnside v Emerson [1968] 1 WLR 1490 on the other.  Burnside was a case of recurrent pooling of surface water on the highway.  The cause was a failure of drainage engineering; the drains were not at the lowest point in the road and they were blocked by debris.  Mr Prynne relies on this extract from the judgment of Diplock LJ (at 1496H):
“The duty of maintenance of a highway authority is a duty not merely to keep a highway in such state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.”
This could not in any event prevail as a general statement of the law against Goodes.  But I do not agree that Diplock LJ was there dealing at all with the question of surface obstructions. He was saying no more than that the duty to maintain did not take its standard from an existing state of affairs, however low, but involved a duty to achieve an objective standard – that is to say it is a duty not simply to “keep” in repair, but to “put and keep” in repair.  That it was said in the context of the provision and maintenance of drains is clear from what followed almost immediately:
“Repair and maintenance thus include providing an adequate system of drainage for the road and it was in this respect that the judge found that the second defendants, the highway authority, had failed in their duty to maintain the highway.”

17.	Mr Prynne next contended that the decision of this court in Department for Transport (etc) v Mott MacDonald Ltd & others [2006] EWCA Civ 1089, [2006] 1 W.L.R. 3356 assists him.  There, the drains of a major dual carriageway had become blocked by silt, debris and/or vegetation.  The highway authority had settled claims made by injured motorists who ran into standing water but when it attempted to recover its outlay from its maintenance contractors the point was taken against it that clearing the drains was not required by section 41.  
18.	The court had to deal with two contentions advanced by the contractors.
(i)  that the section 41 duty extends only to the surface of the road and not to its substructure, such as its drains;    alternatively   
(ii) that if there was a duty to maintain the drains, it extended only to the repair of physical defects in the fabric and not to clearing blockages.
19.	Both contentions failed.  The first failed because it was flatly contrary to the decision in Burnside v Emerson.  The contractors’ contention that Burnside had impliedly been overruled by Goodes (applying Lord Denning’s judgment in Haydon) together with other cases, was an impossible one since the relevant judgments had both endorsed it.  The duty under section 41 relates not only to the surface of the road but to the whole of its structure or fabric, which includes the drains. 
20.	The second contention failed because (a) it was again contrary to Burnside v Emerson (b) the expressions ‘maintenance’ and ‘repair’ work together, and in any event (c) the failure to unblock drains can perfectly properly be described as a failure both of repair and of maintenance.  
21.	There was some discussion before us whether the conclusion on the second contention was or was not consistent with Goodes.  I have not the slightest doubt that it is perfectly consistent with it, and it is clear that the court in Mott MacDonald thought so too. Mott MacDonald was not concerned with surface-lying material but with the structure of the road.  There was no question of it addressing the question in Goodes, by which the court was bound, still less of either differing from it or qualifying it.   
22.	The part of Carnwath LJ’s judgment in Mott MacDonald which gave rise to this discussion before us was contained principally in paragraph 51.  The court had been pressed with references to the word ‘repair’ in the judgments in Haydon, in Goodes, and in Hereford and Worcester CC v Newman [1975] 1 WLR 901, and with the contention that they somehow served to restrict the duty under section 41.  Rebutting that contention, Carnwath LJ said:
“51. First, I do not understand either Lord Denning or Lord Hoffman to have been saying that one could ignore the statutory language and treat the section as if it referred only to ‘repair’ without any mention of ‘maintenance’.  Their purpose was only to rebut the suggestion that the word could be read without any regard to its pre-1959 history.  The Hereford case perhaps illustrates how the words work together.  ‘Repair’ is not an obvious word to describe the removal of vegetation from a footpath, although it is a fair description of the process of making good the surface after removal;  but the term ‘maintenance’ (or indeed ‘making good defects’) is perfectly apt for the combined operation. Secondly, Cairns LJ’s watch-winding example does not assist the respondents’ case.  Winding up a watch is not ‘repair’ because it is an ordinary part of the watch’s operation.  However, if the watch has stopped because of an accumulation of dust in the machinery, ‘repair’ is a suitable word to describe the process of putting it back in working order, even though there has been no physical damage to the ‘fabric’.  Similarly, on the facts of Burnside, Diplock LJ clearly regarded the clearing of a blockage in the highway drains as coming within his definition of putting in repair.” 
He added at paragraph 54:
“To conclude, the engineers…said that the flooding was due to the ‘poor drainage maintenance’.  That is a natural use of the word ‘maintenance’.  There is nothing in the authorities to which we have been referred to suggest that it was not an equally natural use of the word in the context of the pre-1959 law…..I see nothing to throw any doubt on that aspect of the reasoning in Burnside and we are bound by it.”
Thus he held that clearing the blocked drains could perfectly properly be described either as ‘maintenance’ or as ‘repair’.
23.	It is indeed the fact that in several of the judgments, and in the Act itself, the words ‘repair’ and ‘maintenance’ are used to express the same idea, if not at times interchangeably.  The Act uses the word “maintain” in section 41 which contains the duty.  The definition section (s 329(1)) provides that “maintenance includes repair”, probably because the pre-1959 decisions were often couched in terms of ‘repair’.  However, section 56, which contains the provisions for enforcing orders to be made by the Crown Court, uses the word ‘repair’.  Under s 56(1) a complaint to the authority may be made by a person who alleges that the highway is “out of repair”, and if the authority does not in consequence do the work, the power of the court, under section 56(2) is couched in these terms:
“….the complainant may apply to the Crown Court for an order requiring the respondent, if the court finds that the way…is a highway which the respondent is liable to maintain and is out of repair to put it in proper repair…”      (emphasis supplied)
It was the equivalent provision to this in the Highways Act 1959, identically worded except that the court was then the magistrates’ court, which was invoked in Hereford and Worcester CC v Newman.  That is why the judgments in that case are couched in terms of ‘repair’.  Moreover, when civil liability for breach of the statutory duty was introduced by section 1(1) of the Highways (Miscellaneous Provisions) Act 1961, that too was couched in terms of ‘repair’:
“The rule of law exempting the inhabitants at large and any other persons as their successors from liability for non-repair of highways is hereby abrogated.”      (emphasis supplied)
24.	It is accordingly entirely unsurprising that in Haydon Lord Denning made the point (at 359F) that:
“…it follows that a highway authority is now liable to an action for non-repair of highways, whereas previously it was exempt.  But there is nothing in section 1(1) to make a highway authority liable for things which are not ‘non-repair’.  Thus when there was snow or ice on the road, it was not out of repair.”
25.	Lord Denning was there holding that what would not have been a breach of the authority’s duty before 1959 did not become a breach after the Act of that year.  That is all that Carnwath LJ was saying in Mott MacDonald, in order to dispose of the argument that the duty is limited to the repair of physical defects and does not include clearing blocked drains. His remarks at paragraph 51, cited above, are not capable of creating a new distinction between maintenance and repair which has any bearing on the present case, and in particular which could justify a distinction between snow and ice and other surface-lying material.  On the contrary, his judgment convincingly demonstrates that ‘maintain’ and ‘repair’ describe the same idea.  His example of the blocked watch expresses this, as does his conclusion that the clearance of blocked drains can perfectly sensibly be described either as repair or as maintenance.  And as he pointed out, Diplock LJ had said the same of blocked drains in Burnside v Emerson: see the passages set out above at paragraph 16 for their juxtaposition of ‘maintenance’ and ‘repair’ and for the concluding proposition at 1497B:
“Repair and maintenance thus include providing an adequate system of drainage for the road.”      (emphasis supplied)
  
26.	In analysing the decision in Burnside v Emerson the court in Mott MacDonald also drew attention to the following observation in the judgment of Lord Denning MR (at 1494D):
“The plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair the highway.  In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements.  When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain.  When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of the danger for a short time is no evidence of failure to maintain.”
This is a reference to evidence.  The mere fact that there is a pool of standing water on the road in times of heavy rain is not by itself evidence that the drains are not being properly maintained.  It may simply be an unusual volume of rain. If, on the other hand, the road floods regularly, this may well be evidence either that the drains are inadequate or that they are not properly kept clean and working.  Carnwath LJ said as much at paragraph 22 of his judgment in Mott MacDonald:
“The highlighted passages draw the important distinction between transient dangers caused by the elements, which are not in themselves evidence of disrepair, and longer term problems which are.”
These observations were made, in both cases, in the context of allegedly blocked drains.  What they and similar observations do not mean is that there is a relevant distinction to be drawn between the removal of surface-lying material which got there by direct operation of the elements, as did the snow and ice in Goodes, and the removal of surface-lying material which has arrived by some other process, as the grit or debris in the present case would appear to have done. Nor do they mean that there is a duty to remove long-standing surface-lying material but not material which is of recent origin.  Of course it is true that if there were a duty to remove surface-lying material, then in a private law civil action the length of time that it had been there would be relevant to the statutory defence, but that point is, as the law stands, never reached. 
27.	Mr Prynne reminded us of the general desirability of developing questions of law being decided on known facts rather than on pleading points.  As a generalisation that is of course correct.  But it is no help to the claimant unless there is some prospect of facts being found on which she could succeed.  Mr Prynne’s written submissions urged us to consider the possibility of ruts being shown to exist in the road surface, or of the evidence demonstrating that the grit had become embedded in the road surface sufficiently to give rise to a duty to maintain the tarmac itself.  The short answer to those contentions is that neither is the case the claimant makes.  She relies, as she should rely on the evidence as I understand it to be, on loose material on the surface of the tarmac:  see the Particulars of Claim as set out at paragraph 3 above.  It was, on her case, its very looseness which caused the accident. For the same reason, it is not a possible finding that the apparently quite large volume of material in this case was part of the fabric of the road, nor is it suggested that it derived from break-up of the surface. The complaint is of deposits, or build up, of foreign material.  Nor do I agree, in any event, that this is a developing area of the law.  
28.	For these reasons I have no doubt that the action against TfL had to be struck out.  Put at its highest, it could not succeed.  It followed that it disclosed no reasonable grounds for bringing it (CPR 3.4(2)) and that it had no real prospects of succeeding (CPR 24.2(a)(ii)).  However sympathetic one must be to Mrs Valentine, it would be no kindness to her to allow to her to proceed in an action which she must lose. 
Hounslow
29.	The capacity in which Hounslow carried out the street cleaning which it did is unclear.  The particulars of claim allege that it was as agent of the highway authority.  The defence denies this.  We were told that Hounslow is the litter authority.  That would appear to mean under Part IV of the Environmental Protection Act 1990, but the statute is neither pleaded nor relied upon.  It is not suggested that the duties of a litter authority under section 89 of the Act give rise to liability in a private law civil action for breach. For the purposes of this appeal, however, the capacity in which Hounslow acted is irrelevant to the issues. 
30.	It is, realistically, not contended on behalf of the claimant that any relevant statutory power (or even broad statutory duty) under which Hounslow sent its road sweepers along the A4, gave rise to any common law duty to the deceased requiring Hounslow to act.  If Hounslow had done nothing in pursuit of its power, or broad duty as the case may be, no one suggests that it would thereby have incurred civil liability to the deceased.  In the same way, the highway authority in Stovin v Wise [1996] 3 WLR 388 which had a statutory power to require the execution of work on land adjoining the highway to remove an obstruction to visibility, was under no common law duty of care to a driver to exercise it.  Nor was the highway authority in Gorringe v Calderdale BC [2004] 1 WLR 1057, which had a broad statutory duty to examine the frequency of accidents and to prepare road safety programmes, under any common law duty of care to paint a ‘slow’ sign on the road approaching a crest followed by a bend. As Mr Prynne rightly says, these and similar cases recognise a critical distinction between a duty, if acting, to do so carefully to avoid foreseeable harm to others and a duty not to do nothing – ie positively to act:  see for example the speech of Lord Hoffman giving the majority decision in Stovin v Wise at 406A
“There are sound reasons why omissions require different treatment from positive conduct.  It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others.  It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties….or natural causes.”
31.	But Mr Prynne says that this is a case where a statutory undertaker has not simply failed to act, but has acted negligently.  He puts the case against Hounslow squarely on the contention that having elected to sweep the road, it must do so carefully and not badly.  This, he says, is a case not of omission, but of careless act which has foreseeably occasioned the deceased harm.  Where that has happened, he submits, the obstacle to creating a liability to act and a duty to intervene to prevent harm does not arise.  
32.	It is certainly true that the distinction between act and omission can sometimes be troublesome.  Some complaints which are made in terms of omission are in reality complaints about actions where the actor has failed to couple them with reasonable care:  a classic example is the conventional running-down pleading that the defendant failed (or omitted) to keep a proper lookout, which is in reality a complaint that he performed badly the positive act of driving.  Mr Prynne’s contention in this case is that whatever the basis on which Hounslow did its sweeping, it 
“did the job badly and...negligently, so as to cause or permit a long term build up of material on the road surface.”
His alternative formulation, to the same effect, is that Hounslow was carrying out a function which, if done properly, could and should have prevented the build up of material on the road.
33.	To the extent that the complaint in this case is simply that Hounslow missed out the sliver of tarmac on which the accident happened, this seems to me to be in reality a complaint of omission.  True it is that Hounslow did not do nothing at all.  But insofar as the complaint is simply missing the sliver, it is not an allegation that it made matters worse by the manner in which it did its sweeping.  It is rather that it omitted one section of the road from its attentions.  That seems to me to be no different from a contention that it owed a duty to do something positive, rather than nothing, in relation to that section of the road.  It is the same as if an authority were to decide, for budgetary or other reasons, to sweep the A4 but not residential roads or country lanes. It is in reality a complaint about the absence of sweeping, not about the manner of sweeping.  It is not analogous to the plea of failure to keep a lookout.  If anything, it is the obverse of it.  That plea is a complaint of positive action creating the danger, expressed in terms which make it look like one of omission.  The present claimant’s case, put as Mr Prynne puts it, is a complaint of inaction, expressed in terms which make it look like one of commission. 
34.	However, for two reasons, it seems to me that the action against Hounslow ought not to be struck out at this stage. Firstly, it ought to be open to the claimant to argue that, on the facts of this case, the cleaning of the road generally, with the very particular exception of the sliver of tarmac, created a trap.  That would be a complaint of a positive negligent act which left the road more dangerous than it would have been if nothing at all had been done.  Secondly, the case pleaded leaves it open to the claimant to advance a genuine case of a sin of commission.   Particulars (iv) and (ix), set out at paragraph 6 above, leave it open to the claimant to advance the claim that by sweeping straight along the kerb line, even when the sweeper is alongside the slivers of tarmac either side of the entrance/exit, the sweeper has pushed into the sliver the grit which in due course is alleged to have been the cause of the accident.  This is not at present explicitly pleaded, but Mr Prynne told us that he wished to advance it.  There may or may not be evidential difficulties in establishing such a case, especially if the evidence given at the inquest, to the effect that the sweeping machine does not have this effect, is not contradicted. On the other hand, if the photographs, indistinct as they are, are any guide to the volume of material present, it may be that it is a proper inference that some of it is likely, on the balance of probabilities, to have been pushed sideways onto the slivers of tarmac.  I do not say that either case is bound to succeed.  I say no more than that it seems to me that the claimant ought not to be shut out from advancing them, neither of which would necessarily founder on the Stovin v Wise and Gorringe principle. 
Conclusion 
35.	For those reasons, I would dismiss the appeal so far as it concerns the action against TfL, but allow it so far as the action against Hounslow is concerned.  

Lord Justice Aikens:
The appeal against TfL
36.	I agree with Hughes LJ that because we must accept the facts pleaded as being correct, the cause of the accident to Mr Valentine has to be taken as “extensive gravel/loose debris present on the road surface” of the A4.  Hughes LJ characterises that as “surface-lying material”, which he contrasts with “the fabric of the road”.    He concludes that the cases establish that there is no duty under section 41(1) of the Highways Act 1980 to remove surface-lying material,  obstructions or spillages on a highway,  whether or not they result in some danger.  Accordingly, in his view, the claim against TfL for breach of statutory duty under section 41(1) has no real prospect of success as a matter of law,  so must be struck out at this stage.
37.	During argument I inclined to the view that there might, on one possible view of the facts, be a real prospect that the appellant could establish that TfL had been in breach of its duty under section 41(1) of the 1980 Act.   Having considered Hughes LJ’s powerful and closely reasoned judgment, I am unable to sustain that view.   I agree with his analysis and conclusions but I wish to add my own reasons shortly.  
38.	The nature and extent of the duty of a highway authority to maintain a highway must be derived from the wording of section 41(1) of the Highways Act 1980.  This provides: 
“41(1)  The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty,  subject to subsections (2) and (4) below,  to maintain the highway”.
39.	Subsections (2) and (4) of section 41 are not relevant to the present case.    
40.	Hughes LJ has drawn attention to section 329 of the 1980 Act, which contains “further provisions as to interpretation”.  It states that ““maintenance” includes repair”, and “maintain “and “maintainable” are to be construed accordingly”.   I agree that the terms of sections 56 and 58, to which Hughes LJ has also drawn attention, assist in defining the scope of the duty imposed on highway authorities by section 41(1).    
41.	I also agree that it is important to recall two further points.  The first point is that the duty imposed by section 41(1) is an absolute one, rather than a duty to take reasonable care.  The statutory defence provided by section 58 is only relevant to civil actions against highway authorities for damages resulting from their failure to maintain a highway.   That defence does not circumscribe the absolute,  public law, duty imposed on highway authorities by section 41(1),  which can be enforced by public law remedies if need be.
42.	The second point is that the 1980 Act is a consolidating Act.   The first general Highways Act was that of 1835, although there had been legislation concerning particular highways since the 16th century.  There were further 19th century Acts and then the Highways Act of 1959.  The 1835 Act took away the obligations of the inhabitants of a locality to repair and keep in repair the highways in their area and gave it to local authorities acting as highway authorities.   The construction of the scope and extent of the duties imposed by section 41(1) of the 1980 Act must have in mind the scope and extent of the original common law duty of the inhabitants that were replaced by successive Highways Acts as well as the interpretation of the courts of those earlier Highway Acts.
43.	The nature and extent of the duty imposed on highway authorities by section 41(1) and its statutory predecessors has been considered in a large number of cases.   The leading case is the House of Lords’ decision in Goodes v East Sussex County Council.  Many of the authorities were comprehensively reviewed subsequently in the judgment of Carnwath LJ in this court in Department for Transport,  Environment & The Regions v Mott MacDonald Ltd and others [2006] EWCA Civ 1089, [2006] 1 W.L.R. 3356  The Chancellor and Moses LJ agreed with Carnwath LJ’s judgment.
44.	The issue before  the court in the Mott MacDonald was whether the highway authority was under a duty under section 41(1) to maintain a highway drainage system which had suffered a longstanding blockage by silt,  debris or vegetation,  which led to a dangerous accumulation of water on the surface of the highway.   The Department for Transport,  Environment & The Regions (“the DTER”) had settled claims of the original claimants who had suffered damage as a result of accidents caused by the dangerous accumulation of water on the road.   The DTER then sought to recover what it had paid out from the companies who had actually maintained the highway.  The maintaining companies argued that there had been no breach of section 41(1) by the DTER,  so it should not have settled the claims,  so they were not liable to indemnify the DTER.    The argument was that the nature and extent of the duty under section 41(1) extended only to the repair of the surface of the highway; which did not embrace maintenance of the highway drainage system.   (I have applied the emphasis to mark the distinctions drawn in argument in that case). 
45.	Carnwath LJ analysed the leading cases on the nature and extent of the duty under what is now section 41(1) of the 1980 Act.  Of the cases directly on the point he considered:  R v Inhabitants of High Halden;  Burgess v Northwich Local Board; Dublin United Tramways Ltd v Fitzgerald; Burnside v Emerson;Hereford and Worcester CC v Newman;Haydon v Kent County Council; Goodes v East Sussex County Council; Gorringe v Calderdale MBC; and Thompson v Hampshire CC.  He considered others that might be of assistance by analogy.  
46.	I respectfully agree with Carnwath LJ’s analysis.  As I read the judgment of Hughes LJ, he does not join issue with the analysis of Carnwath LJ.   Hughes LJ has concluded that the analysis and result in the Mott MacDonald case are not in conflict with the House of Lords’ analysis and conclusions in Goodes.   I agree.  Therefore I see no point in reviewing the same cases all over again.   
47.	In my view four principal conclusions on the construction of the nature and extent of the absolute duty imposed on highway authorities by section 41(1) can be drawn from Carnwath LJ’s analysis of the cases.   First, the statutory obligation to “maintain the highway” is not to limited to “repair” if that word is to be given a more restricted meaning than “maintenance”.  The two concepts work together in the statute:  [51] and [59]   Secondly,  the area to which the duty to maintain applies is not confined to the “surface” of the highway.  What has to be maintained is “the structure and fabric” of the highway:  [40].   It therefore excludes from the duty to maintain such things as road signs,  as in Gorringe,  and to remove extraneous matter such as snow or ice,  as in Haydon  and Goodes.  However, the duty to maintain does include parts of the highway such as its drains, which are necessary to prevent dangers caused by a failure to maintain, as in Burnside and Mott MacDonald itself: [46].  Thirdly, the duty applies to permanent, as opposed to transient, dangers.  Transient dangers, such as those caused by the elements, will not be evidence of “disrepair” or lack of maintenance, whereas longer terms problems may be:   [22] and [43].  Fourthly,  given the fact that the duty to maintain is an absolute one, it is the duty of the highway authority to maintain the highway by whatever means are appropriate and necessary to do it: [58], quoting Lord Halsbury’s judgment in Sandgate UDC v Kent CC.
48.	I would add two things on Carnwath LJ’s analysis of the nature and scope of the section 41(1) duty.   First, I appreciate that Carnwath LJ did not have particularly in mind the wording of section 56 of the 1980 Act.  But, in my view, that does not undermine the analysis he undertook, nor the conclusions that he reached.  Secondly, he was inevitably considering the nature and scope of the duty in the context of a civil action for breach of the duty. But one must keep in mind that if the duty exists then it is enforceable by public law remedies.   That means that a highway authority will wish to discharge their duties in a way that will prevent some interested party alleging, in a public law context, that it has failed to do so.   But, given the absolute and public nature of the duty,  it is all the more necessary to examine very closely its nature and extent.
49.	How is this analysis to be applied to the present case?   I remind myself that we are considering whether or not this claim should be struck out at an interlocutory stage, on the ground that it has no real prospect of success.   There can be no doubt that Mr Valentine was riding his motorcycle on “the  fabric or structure” of the highway when the accident occurred.   To say that he was not because the tyres of his motorbike were actually on top of the “loose surface material” would, in my view, be artificial and unrealistic.   Equally, there can be no argument but that TfL had a duty to maintain the part of the highway where Mr Valentine was riding his motorcycle. 
50.	But Hughes LJ has held, on the proper construction of section 41(1) as interpreted by the cases, that two conclusions follow which mean that Tfl cannot, in law, be held in breach of its duty to maintain the highway under section 41(1).  The first is that the loose surface-lying material itself, which is pleaded as the cause of the accident, cannot be a part of the “fabric” of the road.   The second is that there is no public law, absolute, duty under section 41(1) to remove loose surface-lying material on the road, whether it is of recent origin or is long-standing,  because that is not a part of maintaining the structure and fabric of the highway.    
51.	At first sight those conclusions might seem odd, given the facts of the case.  But I have been driven to conclude that they are correct for the purposes seeing whether there is a real prospect of establishing a breach of the duty imposed by section 41(1).   I will explain why.   First, I deal with the question of what is part of the “structure or fabric” of the highway and whether the “extensive gravel/loose debris” can be part of the fabric of the highway.   We do not know why there was “extensive gravel/loose debris” on the part of the road where the accident occurred; nor do we know its origin.   It could be that the material was the accumulation of detritus that been present in the road for some reason (unknown) and for some time (unknown) and had been swept to the side over a period by road sweepers or the effect of traffic.  It could be that grit or sand had been applied to the carriageway of the A4 in the winter of 2005/6 and had then been swept into the side area by traffic or by road sweepers that had gone along the main part of the highway and had pushed the material into the side areas.  
52.	If the loose material were found to be an accumulation of detritus that had gathered on the road, it cannot ever have been nor can I see how it could ever become a part of the structure or fabric of the road.   It is the very opposite of that.  On the other hand, if the loose material were found to be grit or sand that had been applied deliberately by the highway authority (or its agent) to the surface of the A4, with the intention of lessening dangers in icy conditions in winter and it was intended the grit should remain on the road, then it is equally not capable of being a part of the fabric or structure of the highway.  It is a temporary addition that has been applied to deal with the possibility of a transient danger, viz. snow and ice on the road.   If something temporary is applied to the road to deal with a possible temporary danger, it cannot, in my view, ever become a part of the permanent structure or fabric of the highway itself.   I suppose it is possible that an accumulation of grit might amount to an “obstruction” within section 150(1) of the 1980 Act, but that is not alleged in this case.    Furthermore, as Hughes LJ pointed out, it was not suggested that the loose material in this case was the result of the break up of the A4 itself.   
53.	Accordingly, there is no arguable basis on which the “extensive gravel/loose debris” which is said to have caused the accident could be found to be part of the structure or fabric of the road.
54.	Secondly,  if my conclusion above is correct,  then the duty to maintain under section 41(1) cannot arise in relation to the loose material,  whatever the reason for it being on the road,  because it is not a part of the “structure and fabric” of the highway.    Lord Hoffmann pointed out in Goodes,  at 1360H,  that the words “maintenance of the highway” are capable of including salting and gritting as a matter of ordinary speech.  But he went on to emphasise that we are not in a position to treat the words of section 41(1) as if it were a code “which sprang fully formed from the legislative head” because it “was built upon centuries of highways law”.   Lord Hoffmann demonstrates, by reference to the common law and statutory history,  that the maintenance duty set out in section 41(1) is confined to the structure and fabric of the highway as that has been interpreted in the cases.    Thus at 1366B in Goodes,  Lord Hoffmann states that there is an important difference between a duty to maintain the fabric of the road in good repair and a duty to prevent or remove the formation or accumulation of ice and snow.   
55.	There may be policy arguments for extending the duty of highway authorities so as to make them potentially liable for the consequences of accidents such as that suffered by Mr Valentine.   That is for Parliament, which, after all, amended the law after the House of Lords had delivered its opinions in Goodes.  But, as the law stands, I have reluctantly concluded that the appellant has no real prospect of succeeding in the claim against TfL, so that the appeal against TfL must be dismissed.
Appeal against Hounslow.
56.	I entirely agree with the reasons of Hughes LJ and have nothing to add.  I would therefore allow the appeal against Hounslow.

The Chancellor:
57.	I agree that the appeal against TfL should be dismissed and that against Hounslow should be allowed, in each case for the reasons given by Hughes LJ.