NEW CLAUSE.—(Liability in respect of trunk roads.) (Hansard, 25 July 1947)

§ Mr. Joynson-Hicks
I beg to move, "That the Clause be read a Second time."
1791 This is a question which was discussed to a certain extent on the Second Reading of this Bill, and I was very hopeful indeed that the Lord Advocate, in replying, would have given some indication about the Government's attitude on the proposal which is contained in this new Clause. It may possibly come as a surprise to some hon. Members, though certainly not to legal hon. Members, to learn that, when a public authority is responsible for the repair and maintenance of a highway, no liability attaches or can attach to that public authority for any damages or injury which a member of the public may incur as a result of the failure of the public authority to maintain the highway or carry out its obligations. May I illustrate that very briefly?
Let us suppose that one is motoring along a public road, and that the local authority has failed to clear the ditch at the side of the road. It may be a foggy night, and, despite the fact that one is driving with all care, one does not notice that the ditch has become overgrown. One cannot see the ditch because it is overgrown, and one goes into the ditch and suffers injury. One cannot claim against the Government or the public authority, whichever it may be, for their failure to have made the ditch apparent to road users. That is one case. A much more usual case is the case of potholes. Suppose that a public authority responsible for the repair and maintenance of the highway has failed, from any circumstances whatever in its duty. Suppose that its inspectors had so lamentably failed to carry out their duties that they had never reported to the public authority that a certain road for which it was responsible, had got into a shocking condition, and had in it potholes, through wear and tear upon the roads, so that it had become a danger to road users.
Suppose, alternatively, that the public authority did, in fact, know all this, and, notwithstanding that, did nothing to make good and repair this danger in the public road, with the result that a motor omnibus, fully loaded, went over the road, broke a spring, and had an accident in which many people were injured. There is no possibility of any of those people who were injured having any right of recovery against the public authority, 1792 because where the public authority failed in its duty was in a matter which we call "nonfeasance." I see the Lord Advocate looking at me somewhat critically, and I am not surprised, because this does not apply to Scotland. It is part of English law only, and it may come as a surprise to the right hon. and learned Gentleman to realise how far England falls behind Scotland in this particular matter.
On the contrary, I would like to give an example of where liability does attach to a public highway authority in a case of "misfeasance." Supposing the servants of a public highway authority have, in the course of work which they were doing, left an unlighted heap of stones or road-making materials upon the highway, with the result that a vehicle ran into it and an accident was caused. That is a positive action on the part of the highway authority which was carried out negligently and for which they are liable, because it was a positive action and an action of "misfeasance."
Those are the two principal categories in which liability may and may not occur in cases of this sort, and the object of my new Clause is to bring them into line, and to render, so far as the Crown is concerned, liability to be attached to the Crown in cases both of "nonfeasance" and "misfeasance," wherever they are the responsible highway authority. Under the Trunk Roads Acts, the Crown has become the highway authority for trunk roads all over the country, and there are some 9,000 miles of trunk roads, so that this question is a material and important one, particularly as the roads for which the Crown is responsible are the main roads and the biggest roads, which carry, far and away, the greatest and heaviest quantities of traffic. It is, therefore, vitally essential, not only that these roads should be kept in a proper state of repair, but that there should be this sanction which the public can have against the Crown as the highway authority, to ensure that their duties are properly carried out and that they cannot escape from those duties by not being able to be rendered liable for cases of "nonfeasance."
Again, this is by no means a new matter. I am very glad indeed to see that the right hon. and learned Gentle- 1793 man the President of the Board of Trade is sitting on the Front Bench opposite, because I am sure that, in his professional capacity, he can, if he will, bring to bear a good many legal authorities in my support, but I would refer briefly to one or two dicta of judges cases of this sort. It goes back a very long time. If I may refer to the case of Thompson versus the Brighton Corporation, who were a public authority for the purpose of that particular case, in 1893. Lord Justice Smith said: It has been held tot, at any rate, over 100 years, dating from the case of Russell versus Men of Devon, that no action for damages will lie against a surveyor of highways for injuries received by reason of a highway being out of repair. That is a principle of law which I am seeking to reverse, because I am quite satisfied that all the legal fraternity, as well as the members of the public who are conscious of it, are thoroughly opposed to it and consider it a thoroughly bad principle of law. Lord Justice Lindley, in t he same case, said: The law on this subject is, in my opinion, very unsatisfactory, but I cannot on that account declare it to be different from what it is. Again, later than that, in 1932, in the case of Guilfoyle versus the Port of London Authority, Mr. Justice Humphreys, as he then was, stated: Under the modern authorities, a transfer to a public corporation— and, therefore, I think the same must apply when transfer takes place to the Crown— of the obligation to repair roads does not of itself render the corporation— and that now means also the Crown— liable to an action for damages for nonfeasance as distinguished from misfeasance. He went on to say: However unsatisfactory the law may be—and I am only saying what has been said repeatedly by other judges, and, indeed, by many members of another place, when I say the law is unsatisfactory in this respect—it is tin.—and I am bound to pronounce it. I am asking the Committee to put these recommendations into effect and to amend the law. It is not a matter which is without precedent, and, having appealed to the right hon. and learned Gentleman at one end of the Front Bench opposite, I now Appeal to the right hon. and learned 1794 Gentleman the Lord Advocate at the other end of that bench, because here we are playing a game of tit for tat on the last Clause, and ask for his support to bring the law of England into line with that of Scotland. I know he will bear me out when I say that there is the same liability in Scotland against a public authority for matters of non-feasance as there is for matters of misfeasance. I very much regret that my hon. and gallant Friend the Member for Ayr Burghs (Sir T. Moore), and my hon. Friend the Member for South Edinburgh (Sir W. Darling) are net present at the moment to hear our appeal to Scotland to take England under its wing in this matter.
The matter was particularly referred to in the Alness Report which pointed out the unsatisfatory state of the law, and the desirability of bringing it into line, as between England and Scotland, by making English law on this point conformable to Scotch law. That has become still more important, and still more emphatic since last year. Under the Trunk Roads Act of 1946, we added to the responsibility of the Crown many trunk roads which run right up into Scotland. Can there be anything more ridiculous than for a member of the public who is travelling upon the main trunk road between England and Scotland to find that, if on the English side of the Border, he meets with an accident through the disrepair of the road, he ha, no recourse against the Crown, whereas, if he goes 10 yards further on, across the Border, and falls into a pot-hole, he can sue the appropriate Minister. That is a really ridiculous state of affairs, and one which should not be tolerated any longer. It has been so recognised by the legal profession for upwards of 100 years, and they have continually ex pressed their discontent with the situation Finally, may I refer the Committee to perhaps the oldest of all authorities. Hon Members on all sides will be familiar with the fact that it is a sin to do the things we ought not to do. I ask them to remember that it is also a sin not to do the things which we ought to do, and therefore, to accept this new Clause.

§ The Attorney-General (Sir Hartley Shawcross)
The hon. Member for Chichester (Mr. Joynson-Hicks) has made an interesting and persuasive case for 1795 an alteration of the law in regard to the liability of highway authorities. It is a case that we have not overlooked, and that we shall not overlook in future. I have a great deal of sympathy with the view that the old rule, as to the absence of liability for misfeasance, should be done away with. It is a survival from times and circumstances which have greatly changed. But this Bill is not, and cannot become, the vehicle for general reforms in our law. As I sought to explain to the House on Second Reading, the purpose of the Bill is not to reform the general principles of the law, but simply to put the Crown in the same position as the subject under the existing rules of law. One really cannot start altering the general principles of the law in relation to particular defendants only; one has to alter them so that they apply regardless of the particular defendant sued.
This rule about misfeasance and nonfeasance applies to all highway authorities, and if it is to be abolished, as perhaps it should be, it should be abolished in relation to them all. I entirely agree, if I may say so with respect, with the view of the hon. Member that it is ridiculous to have different rules in England from those in Scotland. It would be even more ridiculous to have in England, different rules, one applying to a trunk road, and another to a road not so classified. Such a state of affairs would lead, in practice, to hopeless confusion and difficulty. This is a matter which ought to be dealt with, if it is dealt with at all, comprehensively and with regard to all highway authorities, and not made a matter for discrimination against the Crown alone. For these reasons, I cannot accept the new Clause.

§ Sir D. Maxwell Fyfe
I quite appreciate the arguments of the right hon. and learned Attorney-General that this Bill is limited to the procedure of litigation against the Crown, and that it is not making any alterations, in substance, in the law. But I should like strongly to support the plea of my hon. Friend that this is a matter which does require urgent attention. I would put it to the right hon. and learned Gentleman that, as far as I can see, the opportunities provided by departmental legislation will always be 1796 subject to the same form of repudiation-when this alteration in the law is suggested, and that the responsibility for making these desirable alterations in the law, which cannot be strictly attributed to departmental legislation, must really be placed on the right hon. and learned Attorney-General. I am sure that is a responsibility which he will gladly assume, and I hope that he will bear it in mind, and will fight for these improvements in the law. I repeat that, as far as procedure is concerned, this Bill is a very great step forward.

§ Mr. Joynson-Hicks
I rise to express my full appreciation of the arguments adduced by the right hon. and learned Attorney-General. I was fully conscious of the fact that I was likely to be met with those arguments, but, on the other hand, may I point out to him that he has got to make a start some time or other if he is not prepared to deal with the whole matter—as, so far, he has given no indication of doing—by an omnibus procedure. When we tried to introduce the principle into the Trunk Roads Bill, we were met with the answer, "Well, you cannot do it just for the trunk roads which are being added by this Bill, because, then, the principle would only apply to some and not to others." When we try to do it now, we are told that it would introduce the responsibility on the Crown alone, and not on other public highway authorities. I think that is the worst argument that could be put forward, because the Crown should set the example. I hope that the right hon. and learned Gentleman will bear that in mind. The difficulty is to obtain the opportunity, but I am quite sure that, if he will take the initial step, he will have our support. In the light of what he has said, and his sympathetic reception of the principle involved, and in the hope that he will take steps to introduce a general Measure, which, I entirely agree, is desirable, to bring the law into conformity, I beg to ask leave to withdraw the Motion.