Goverment Neglect- Compensation Claim

Leta Almeda V Hm Attorney-General For Gibraltar (2003)

There was nothing in the wording of s.238(2) Public Health Ordinance 1950 of Gibraltar to indicate an intention to impose a liability on the government to pay damages to those, such as the appellant, who had suffered injury as a result of their failure to repair the highways and streets.

Highways - Personal Injury - Negligence - International

PC (Lords Steyn and Rodger, Sir Martin Nourse, Sir Andrew Leggatt and Sir Philip Otton) 24/11/2003

LTL 26/11/2003 (Unreported elsewhere)

Document No.: AC0106109

Appeal from a decision of the Court of Appeal of Gibraltar dismissing a consolidated appeal from the dismissal of two personal injury actions that claimed the government of Gibraltar were liable, as the relevant highway authority, for non-feasance. In 1999 the appellant ('L') tripped over some broken paving stones and fell, fracturing both wrists and injuring her right foot. L sued the government as the authority responsible for the highway or street claiming, inter alia, that:

(i) the government had failed adequately or at all to repair and/or maintain the pavement; and

(ii) the paving defect constituted a nuisance that the government had caused or permitted. The government's defence was that, under s.238 and s.244 Public Health Ordinance 1950, it was not liable in law in respect of matters of non-feasance and accordingly the particulars of claim disclosed no cause of action. There was a similar personal injury action in the Supreme Court of Gibraltar at the same time. The claimant in that action was injured after falling in a pothole in a public road.

Like L, she also relied on the government's statutory duties to maintain and repair public highways and roads. The government took the same point in relation to non-feasance. Both actions were dismissed by the Supreme Court in May 2001 and again, in a consolidated appeal, by the Court of Appeal. Before the Privy Council, the government submitted that since the Order in Council dated 2 February 1884, the rule of English law that a highway authority was not liable for non-feasance had been part of Gibraltar law. L argued that:

(a) since there was no such rule in the common law of England today, there was no such rule in the common law of Gibraltar either; and

(b) if the non-feasance rule formed part of Gibraltar law it violated her right to the "protection of the law" under Art.1(a) and Art.8(8) of the Constitution of Gibraltar.

HELD: (1) The relevant principles were those set out by Fullagar J in Gorringe v Transport Commission (Tasmania) (1950) 80 CLR 357. At common law no person or persons corporate or unincorporate was or were subject to any duty, enforceable by action, to repair or keep in repair any highway of which, either by common law or by statute, they or it have or had management or control. If a duty to repair or keep in repair a highway was imposed by statute, that duty was not enforceable by action unless the statute made it clear, by express provision or necessary implication, that the duty was to be enforceable by action at the suit of a person injured by its breach.

(2) Those principles had been distilled from four cases of which the latest was decided in 1870. The principles therefore already formed part of English law on 31 December 1883 and so had become part of the common law of Gibraltar under the 1884 Order in Council. No local legislation had since abrogated the common law of Gibraltar in this regard.

(3) There was nothing in the wording of s.238(2) of the 1950 Ordinance to indicate an intention to impose a liability on the government to pay damages to those, such as L, who suffered injury as a result of the government's failure to repair the highways and streets.

(4) Art.8(8) afforded certain procedural guarantees. It did not provide any guarantee as to the substantive content of the law. The non-feasance rule fell to be regarded as a rule of the substantive law of Gibraltar. By reason of that rule, L had no right to damages from the government for her injuries. It was not a rule barring L from enforcing a right to damages that she actually enjoyed under the law. There was no infringement of L's rights under either Art.1(a) or Art.8(8) of the Constitution.

Appeal dismissed.