LIABILITY OF THE KEEPER OF A TOLL MOTORWAY

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XVI. European Traffic Law Days, Budapest, Hungary | Dr.iur. Thomas Thiede LL.B., LL.M. | www.thomasthiede.info

LIABILITY OF THE KEEPER OF A TOLL MOTORWAY

COMPARATIVE LAW STUDY ON AUSTRIA, ENGLAND & WALES, FRANCE, ITALY AND PORTUGAL

XVI. EUROPEAN TRAFFIC LAW DAYS Budapest, Hungary

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• idea – Mag. Josef Schörghuber – effect of toll payments on the liability of the keeper of the toll road

• Germany

• ‘Dobrindt Plan’: introduction of a passenger car toll (discriminating foreigners?)

• 18 June 2015: infringement proceedings against Germany by the Commission

• starting point – Austrian Judgments: OGH (Austrian Supreme Court), 22 February 2001, 2 Ob 33/01v and OGH, 26 April 2001, 2 Ob 133/00y

• initial research: find comparable judgments in European Jurisdictions

• library (European Centre of Tort and Insurance Law; Institute for European Tort Law): 10k books on tort law

• database (e.g. www.eurotort.org)

Methodology

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• input, verification, review

• experts (‘luminaries’) from respective jurisdictions, viz.

• Austria: Ass.-Prof. Dr. Barbara C. Steininger, University Graz (editor Yearbook European Tort Law)

• England & Wales: Dr. Colm McGrath, MA (Research Fellow at Trinity Hall, University of Cambridge)

• France: Prof. Dr. Jean-Sébastien Borghetti (Université Panthéon-Assas, Paris II); Prof. Dr. Michel Séjean

(Université de Bretagne-Sud)

• Italy: Ass.-Prof. Dr. Elena Bargelli (Università di Pisa)

• subjectively chosen (prior projects & publications)

• study exclusively for XVI. European Traffic Law Days, Budapest

• today: results & discussion

Methodology

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AUSTRIA

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• OGH (Austrian Supreme Court), 22 February 2001, 2 Ob

33/01v and OGH, 26 April 2001, 2 Ob 133/00y, 2 Ob 16/14p

• Facts (‘piece of metal’)

• plaintiff crashes into a piece of metal lying on the motorway at the end of a tunnel

• this piece of metal, which had originally been fixed at the side of the tunnel, had apparently been hit by another car and

been thrown on the road

• plaintiff could not evade it as a truck was driving next to him and, as he only saw it when it was about 20m ahead, he could not stop

• Facts (‘frozen road’)

• frozen road (ice was not visible); plaintiff crashes into crash- barrier

• for unclarified reasons road was not (sufficiently) gritted

• both plaintiffs had bought a so-called Vignette (time-dependent toll)

• compensation from the keeper of the motorway (ASFINAG)

Starting Point: Austria

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Limitation of Liability to Gross Negligence

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• time-dependent toll (Vignette) is not a duty but a civil payment

• result

• keeper of a toll road is liable in contract (btw. onerous contract)

• for any degree of fault (however, the duty of care of the keeper of a toll road shall not be exaggerated)

• limitation in § 1319a ABGB is not applicable

• relationship between plaintiff and defendants is contractual

• effect: reversal of the burden of proof

• defendant has to prove that he or she acted with the objective standard of care

• if this fails, chance to prove that he or she cannot be subjectively reproached for the non-compliance with the objective standard

• NB. keeper is vicariously liable for employees (§ 1313a ABGB)

Decision of the Supreme Court

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ENGLAND & WALES

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• turnpike trusts: Toll roads in England & Wales used to raise fees for the management & maintenance of roads

• history

• 17th but especially during the 18th and 19th centuries

• bodies set up by individual acts of Parliament, with powers to collect road tolls for maintaining the principal roads in

England & Wales

• at the peak, in the 1830s, over 1,000 trusts administered around 30,000 miles (48,000 km) of turnpike road in

England and Wales, taking tolls at almost 8,000 toll-gates and side-bars

• railway era spelt disaster for most turnpike trusts, by the 1870s it was opportune for Parliament to close the trusts

progressively without leaving an unacceptable financial burden on local communities

• Local Government Act of 1888 gave responsibility for maintaining main roads to county councils

Historical Background

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• currently: one single major toll road

• M6 Toll (Birmingham North Relief Road, BNRR) and a small number of bridges and tunnels where tolls are collected

• in addition, two UK road pricing schemes (London/Durham congestion charge)

• 27 miles (43 km) of six-lane motorway – weekday cost £5.50

• contract to build and operate the M6 Toll was won by Midland Expressway Ltd (MEL) in 1991

• as of June 2005, MEL was 100% owned by Macquarie

Infrastructure Group (MIG) of Australia; in 2010 MIG was split into two, and the M6 Toll is now managed by Macquarie Atlas Roads (MAR)

• we do not know the precise public/private arrangement for the M6 Toll

• presumption: subject to the same regulations and policing as other motorways in the UK (MAR = highway authority; public private partnership)

Today’s Toll Roads

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• common law applied to keep down the cost of highway

maintenance by exempting highway authorities from liability for damage caused by failure to repair (state liability)

• liability of the highway authority

• torts of negligence and breach of statutory duty

• whereas historically there was hardly any statutory duty, this has been changed by the Highways (Miscellaneous Provisions) Act 1961

• now: duties can be found mainly in the Highways Act 1980

• imposing on the highway authority a liability based on negligence (with a reversed burden of proof)

Liability of Keeper of Roads

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• sec 41(1) of the Highways Act 1980

• general duty for the highway authority to maintain the highway

• sec 58(1) provides

• if a highway authority has failed to maintain the highway and damage occurs it may

• invoke the defence of contributory negligence

• also prove that it had taken such care as in all the

circumstances was reasonably required to secure that part of the highway to which the action relates and it was not dangerous to traffic

Highways Act 1980

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• for defence under sec 58(1), the court shall in particular have regard to

• (a) the character of the highway and the level of traffic;

• (b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

• (c) the state of repair in which a reasonable person would have expected to find the highway;

• (d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the

highway to which the action relates was likely to cause danger to users of the highway;

• and (e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of the damage arose, that warning notices of its condition had been

displayed

• NB. highway authority is liable for the failure of its contractors to maintain and repair unless it proves that it had given the contractor

Defence under sec 58(1)

Highway Act 1980

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• Goodes v East Sussex County Council [2000] UKHL 34; 3 All ER 603; [2000] 1 WLR 1356 (15 June 2000)

• Case (‘Frozen Road’)

• at dawn on a frosty November morning in 1991; Mr. Geoffrey Goodes was driving his Ford Capri on the A267 at Wellbrook Hill near Mayfield in Sussex

• he moved out to overtake on a straight stretch of road, a rear wheel skidded on a patch of black ice

• he lost control and the car crashed

• he suffered dreadful injuries and is now almost entirely paralysed

• claims damages against East Sussex County Council on the ground that it was in breach of its statutory duty under sec 41(1) of the Highways Act 1980 to ‘maintain the highway’

Practice: Reluctant Approach

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• House of Lord’s decision

• sec 41 Highway Act duty does not extend to gritting or salting the road (to prevent accumulation of ice or to the removal of snow)

• only ‘physical condition of the road as such’

• however: reversal by statute!

• Railways and Transport Safety Act 2003, sec 111

• adds to the duties owed under Highways Act 1980 sec 41 the duty to ‘ensure, so far as reasonably practicable, that safe

passage along a highway is not endangered by snow or ice’

• still: reluctance persists! (here tort of negligence; i.e. duty under common law)

• e.g. Gorridge v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057, [2004] 2 All ER 32

Goodes v East Sussex County Council

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• Case (‘piece of metal’):

• claimant was driving too fast for safety on an undulating country road

• she reached the crest of a rise; saw a bus coming towards her in the opposite direction and, perhaps thinking that it was on her side of the road, braked sharply causing her wheels to lock and her car to skid head-on into the bus’s path

• she suffered very serious injuries and was never able subsequently to give account of the accident

• she brought an action for damages against the defendant council, the relevant highway authority

• alleging that it ought to have painted the word ‘SLOW’ on the road surface on the rise towards the crest under sec 41

Highways Act 1980

• successful at trial; the defendant council appealed successfully to the Court of Appeal, which (by a majority) found that the

council was not in breach of any duty to the claimant; claimant appealed to the House of Lords

Gorridge v Calderdale Metropolitan

Borough Council

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• House of Lords unanimously dismissed the claimant’s appeal (no liability, then)

• defendant’s statutory duty to ‘maintain’ the highway did not extend to the painting of warning markings; related only to the physical

condition of the road as such

• defendant’s other statutory obligations in relation to road safety were not sufficient to give rise to a duty of care at common law (tort of

negligence)

• Recognition of a common law duty

• would expose highway authorities to expensive and lengthy legal proceedings; risk of litigation costs consuming road safety budget

• Lord Roger: ‘[b]y insisting that drivers always look out for dangers themselves and not rely on others, the law supports the overall policy of promoting road safety’

• highway authority’s statutory duty does not extend to painting warnings on the road

• no duty on the basis of the tort of negligence; Lordships thus clearly shifted the responsibility from the highway authority to the road user

Gorridge v Calderdale Metropolitan

Borough Council

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• facts comparable to OGH 2 Ob 133/00y (‘piece of metal’):

• Mr Stovin was injured when his motorcycle collided with Mrs Wise’s car

• Mrs Wise’s view of approaching traffic had been obstructed by a raised bank of earth adjacent to the road

• highway authority’s duty to maintain the highway did not apply because the highway as such was in good order

• liability had to be established on the tort of negligence:

obligation of highway authority to clear bank?

• question was whether the highway authority’s statutory power could be turned into a common law duty of care

• House of Lords held that this was not the case

• Lord Hoffmann: non-exercise of a statutory power the authority would only be liable if it would have been irrational not to have exercised the power

• concluded ‘that the question of whether anything should be

done about the junction was at all times firmly within the are of the [highway authority’s] decision.’

Stoven v Vise [1996] AC 923

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FRANCE

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• after WW II most roads were financed by the State

• 1955 policy change (loi no 55-435): Toll Roads (originally as an exception; now quite common)

• highways: ‘Barrières de péage’

• between 1955-1963 five parastatal companies: ‘Sociétés d’économie mixte concessaires d’autoroutes’ (SEMCA)

• 1970 – decree no 70-298 of 1970 – privately held

concessionaires: quite different earnings; different state of toll roads

• 1994 – reform: fusions & capital increase; 3 holdings

• 2001-2005 – privatisation of the (former) parastatal companies

• today: 3 holdings; 20 concessionaires; 8900 km of highways (80%)

• organisation in ‘Association des Sociétés Françaises d’Autoroutes’ (ASFA)

Toll Motorways in France

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• when discussing French tort law, viz. the liability of ‘société d’autoroute’

• we think of

• art 1382, 1384 C.civ. (‘fait de la chose’)

• ‘loi badinter’

• and as there is liability in tort and contract: a case for ‘non- cumul’ doctrine?

• research into judgments of the Cour de Cassation – nothing!

• it is a trap!

Liability for Toll Roads: The Trap

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• liability of the société d'autoroute (i.e. the concessionaire) is a matter of droit administratif, i.e. of public law – even if the

company is a private one!

• Why?

• the motorway is a 'public work' and the company that manages it is thus subjected to the rules of administrative liability

• liability is not contractual in nature, as the toll is not regarded as the price of a contract, but as a 'tax' that is imposed for the use of a public facility

• thus, cases are brought before administrative courts, with the Conseil d'Etat (and not the Cour de cassation) at the top

• principle: concessionaire is subjected to liability for fault, but with a reversal of the burden of proof

• e.g. accident due to a car hitting something on the road, the concessionaire will be liable unless it proves that the road was dutifully kept

Matter of Droit Administratif

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• Conseil d’Etat (12 November 1997, no 159467): principle of liability for presumed fault of the concessionaire

• concessionaire has obligation concerning the maintenance and monitoring of the road

• if accident yields evidence of the presence of an object on the toll road or defect of the latter, the lack of maintenance or

monitoring of the motorway route will be presumed

• thus, not up to the victim to prove the defective motorway maintenance

• note, however: concessionaire is exempted if there is proof of maintenance and regular monitoring

Conseil d’Etat

Liability for Presumed Fault

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• effect: concessionaire must perform regular monitoring of the road, through patrols of its agents, to ensure that the motorway lanes show no defects

• concessionaire must immediately intervene in case of dangers:

taking all necessary measures

• repairing the defective toll road

• signalling adapted to dangers

• obligations of the concessionaires more strictly construed than for keeper of ordinary roads

• reason: higher speed limits, thus need for higher safety standards

Monitoring & Maintenance

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• obstructions on the road:

• truck wheel (Conseil d’Etat, 20 May 1987 No. 71798)

• metal plate (Administrative Court of Appeal of Bordeaux, 14 May 1992 No. 90BX00700)

• log of wood (Administrative Court of Appeal of Lyon, November 9, 1999, No. 95LY00716)

• snowy road (Conseil d’Etat, January 19, 1977, No. 99318)

• essentially, question of evidence for the administrative judge (evidence of normal maintenance)

• concessionaire must demonstrate regular monitoring with no presence of any obstacles, e.g.

• by an account of the security service,

• testimony of toll worker (plus testimony of a third party)

Evidence of Normal Maintenance

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• Administrative Court of Appeal of Lyon, 9 November 1999 (no 95LY00716)

• monitoring fulfilled: concessionaire was present at scene 15 mins before occurrence (without noticing any obstacles)

• a large number of vehicles used in rush hours before the occurrence of the accident without hitting the obstacle

• no report to the concessionaire company

• Administrative Court of Appeal of Bordeaux, 7 February 2002 (no 98BX00076)

• proof of normal maintenance: testimony of a third party

indicates that the obstacle was not present at the scene about 30 minutes before the occurrence of the accident, and

• that concessionaire’s employees where at scene of the accident about 15 minutes before its occurrence without noticing the presence of the obstacle

Evidence of Normal Maintenance

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• Conseil d’Etat, 1 March 1967 (no 68898) (‘piece of metal’)

• accident caused by the presence of pebbles that came from the shoulder of the road

• accident caused by the presence of pebbles; cause: another vehicle using said shoulder

• concessionaire not liable: sufficient proof of normal

maintenance; no time to intervene; administrative requirements of the shoulder fulfilled

• notably: warning (a few minutes before the accident) of the presence of these pebbles on the floor

• Conseil d’Etat, 19 January 1977 (no 99318) (‘frozen road’)

• accident due to slippery mud after the hard snow covering the road had melted due to salting operations

• no signalling failure: users have to guard against slippage risk inherent in snowy roads

• concessionaire does not have the burden of reporting salting operations on motorways which are normally the subject of snowfall

Evidence of Normal Maintenance

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ITALY

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• 1922 – ‘Autostrada die laghi’: first (toll) motorway; toll road since 1925

• post WW II: destroyed highways were restored by the state

• 1946 – to fulfil this task the public ‘Azienda Nazionale Autonoma della Strade Statali’ (ANAS) was founded

• 1955 – new legislation: motorways shall be financed by tolls (maximum 30% of state subsidies)

• 1956 – Contract on Construction and Running of the Motorway A1 from Milano to Naples between ANAS and ‘Autostrade

Concessioni e Contruzioni’, today ‘Autostrade per l’Italia’

(privatised in 1999)

• Today: virtually all motorways are toll roads (‘pedaggio’) (of 6700km, 5700km; approx 85%)

• 23 concessionaires (holding: ‘Associazione Italiana Società

Concessionare Autostrade e Trafori’ (AISCAT)); most important:

Autostrade per l’Italia (approx 2300km)

Toll Roads in Italy: Pedaggio

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• original opinion: Cassazione civile, sezioni unite, 27.8.2001, n.

10893, Giur. It., 2002, 1065 (extremely short)

• toll is a tax

• Liability of Società Autostrade in tort for any damage due to the undue keeping of the road (fault-based liability)

• effect: victim must prove the tortfeasor’s fault in keeping the road

• massive change: Cassazione civile 13.1.2003, n. 298, Giust.

Civ. 2004, I, 209

• literature argument: pedaggio is not a tax; no law providing for it

• ANAS decides on the pedaggio; it is a charge, a tariff

• the relation between the user and the keeper of the toll road is, hence, contractual – keeper is liable in contract

• burden of proof with the keeper (viz. the victim does not have to prove that the motorway was unsafe)

Liability for Toll Roads: Change of Opinion

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PORTUGAL

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• certain number of roads are designated toll roads

• A1, from Lisbon to Porto

• A2, from Almada to the Algarve,

• A6, from the A2 at Marateca to the Spanish border

• fixed value per kilometre distance, with several classes

depending on vehicle type and regulated by the government

• several concessionaires; largest BRISA (others AEA, Ascendi and Lusoponte)

Toll Roads in Portugal

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• traditionally: jurisprudence considered that the payment of the toll was a tax for using a public service

• result

• no contract

• application of the provisions of tort law

• burden of proof with the claimant

• background in literature:

• Jurisprudence accepted Prof Sinde Monteiro’s doctrine

• ‘between the user and the concessionaire of the highway there is a sui generis contract, the main duties of which are the payment of the toll and its utilisation with comfort and safety’ (see Sentence STJ of 17 February 2000)

• reversal of the burden of proof due to the contractual regime

literature: Prof. Sinde Monteiro

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• case (‘piece of metal’):

• a dog suddenly appeared on the toll road; hit the vehicle

• toll road is usually fenced, however, fence was in bad condition, allowing for entry of the dog

• NB it was not proven where the dog came from nor if the defendant was guilty of that fact

• according to Portuguese law, the concessionaire of the highway has the duty to fence the highway in all its extension

• evidence: fence near the accident was damaged

• Court’s decision: when access to the highway depends on the obligation to pay the toll as a counterpart of a safe and

comfortable utilisation by the client, one shall apply the rules of contractual liability

• concessionaire’s burden of proof: no fault for the presence of the dog

• compensation for the plaintiff

Sentence RCb 8 May 2001, CJ,

ano XXVI, 2001, T-III, 9-10

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LIABILITY OF THE KEEPER OF A TOLL MOTORWAY