No liability on Council for flooding on highway


26 August, 2010

Seddons (Plant and Engineers) Ltd v Warrington Borough Council and United Utilities - (Warrington County Court)

The claimant company claimed damages arising from an incident where a car driven by one of its employees became submerged in a deep pool of water and foul waste which had accumulated on the highway under a bridge causing damage to the vehicle. The claimant alleged that the damage to the car was caused by the negligence and/or breach of statutory duty by both of the Defendants or at least one of them. The road had on previous occasions been the subject of flooding and both of the defendants knew about this reoccurring problem. During periods of heavy rainfall the United Utilities nearby pumping station would sometimes fail due to computer problems, causing the road to become flooded. The Council had installed their own pump to try to resolve the issue.

The claimant alleged:

  1. That the Council had breached their duty to maintain the highway arguing that they could have done more due to their knowledge of the problem and for that reason their section 58 Highways Act defence failed.
  2. That section 58(2)(e) placed a duty on the Council to put up warning signs and therefore they had not maintained the road adequately.
  3. That a Local Authority can be found liable for a failure to maintain even if the hazard is caused by the conduct of third parties arguing that an occasional act of flooding may not bring a finding of liability. However flooding on a number of occasions and which is apparent to the Local Authority may produce such a liability.

Forbes on behalf of the Council defended the claim on the basis that the Local Authority cannot be held liable merely because there is an absence of warning signs, signage and lighting. The Council relied on the cases of Gorringe v Calderdale Metropolitan Borough Council and Buster v Leeds County Council and argued that it could not do anything more than install its own pump and it had done that. It was the treatment plant, which was the responsibility of United Utilities, that was not functioning properly.

United Utilities argued that the flooding at the material location had more than one cause. It was not just because the computer system had run into some difficulties. The failings with the pumping station were not operational failures but were due to the system becoming outdated which required significant expenditure to correct.

The court found that this was an operational failure, the key cause being the failure of the computer system which could have been corrected at a relatively modest cost. On that basis, the law did not afford United Utilities protection and they were held liable for the flooding.

On the basis that there was no liability on the Council the claimant was ordered to pay the Council's costs of the action.

Case comment

The accident was not caused by any defect in the state of repair of the road or by any failure of the Council "to maintain" the road. The cause of flooding was out of the Local Authorities control. The case shows that the courts are not willing to interpret the Council's duty to maintain to mean a positive duty to correct the acts of third parties. The Councils duty is to keep the road in good repair which in this case they had attempted to do so by installing a pump. There was nothing more the Council could have done and prior knowledge of the problem did not make them responsible.

For further information contact Andrew Ellis on 0161 918 0000 or contact Andrew Ellis by email.


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