§ Mr. Hay
I beg to move, in page 5, line 7, at the end, to insert:(4) Notwithstanding any rule of law, the appropriate authority shall be liable to pay damages to any person who suffers injury, loss or damage, whether through the misfeasance or nonfeasance of the appropriate authority by reason of the failure of the appropriate authority to put or keep in repair a cattle-grid or by-pass provided in pursuance of this Act.The purpose of the Amendment is to ensure that the proper authority shall be made liable for any injury, loss or damage, however it may be caused, which may be suffered by any individual as a result of the cattle-grids we are proposing to place on the highways. This is the sort of problem which has been faced by Parliament on many occasions before, and as a result the legal position is in a somewhat complicated and extremely unsatisfactory state.
I begin by reminding the Committee of the legal distinction—and difference— between the two words which are mentioned in the Amendment, namely. "misfeasance" and "nonfeasance." As hon. Members will, no doubt, recollect, highway authorities are not liable if they fail to keep highways in repair. If as a result of their negligence in that respect, potholes, for instance, appear in the highway, it might easily happen that a person would be injured as a result, but the courts have laid it down for many years that in those circumstances a person cannot recover any damages. The converse of the position is, that if any time a highway authority does some particular work to a road, and it leaves it in such a bad manner that some person is injured, as for example, if a trench is dug in the road and in filling it up the road is not surfaced properly and someone is injured, the injured 1432 person can recover damages because of the negligence which has caused the accident, and, therefore, the damage.
Turning to the Bill after those preparatory remarks, I would point out—it was pointed out during Second Reading— that Clause 3 is the one which deals with the position of cattle-grids and by-passes in England and their repair. Clause 4 deals with the repair of cattle-grids and by-passes in Scotland. In Scotland they are more fortunate than we unfortunate English people in this case. Clause 4 establishes that whatever the cause of the damage or liability, whether due to misfeasance or nonfeasance the appropriate authority is liable, but for England there is not a word about liability at all.
The purpose of this Amendment is to give some measure of justice for England, and I hope I may have the support of hon. Members like the hon. Member for Orkney and Shetland (Mr. Grimond) and others from Scotland in order to give justice to England on this issue. When the Parliamentary Secretary to the Ministry of Agriculture was winding up the Debate on the Second Reading, he set his face strongly against any proposed change of this kind, and said that this was a very inappropriate moment to introduce such a far-reaching change. That is to some extent true, but I would remind the Committee that what we are doing is putting something entirely new on the highways.
There are many circumstances which might come to mind where people might be injured as a result of the surface of the road around a cattle-grid becoming worn out. Cyclists might easily meet with a serious accident, and the purpose of the Amendment is to make sure that where an accident occurs and some person is injured or anything damaged, then there shall be a right of recovery of damages from the appropriate authority, no matter whether it be the result of the misfeasance of the appropriate authority or the nonfeasance.
The Solicitor-General might very well say that this opens up a very wide question. To that I have no objection. I feel this is a change in the law which on general grounds is long overdue. Here is an opportunity for this Committee in a small but nevertheless important Bill to effect some measure of change for the betterment of people using the roads.
§ The Solicitor-General
As the hon. Member for Henley (Mr. Hay) said, this Amendment cannot be considered in isolation. There is, as he has reminded the Committee, a very general principle in our law that authorities are not liable in respect of nonfeasance as distinct from misfeasance. This being such a principle of wide application, I feel that the Committee and the hon. Gentleman himself would accept the principle that it should not be lightly disregarded, and that the Committee in investigating it should see that the general current of the law was not reversed in that regard. In the matter of cattle-grids we have carefully thought over the position since the Parliamentary Secretary to the Ministry of Agriculture addressed the House on Second Reading of this Bill on that point. In his speech he said that he did not feel that this Bill was really one in which to make a departure from that general principle.
Since then we have considered whether it would be right, without in any way encroaching upon the general principle, to make some exception in the case of cattle-grids. We are prepared in principle to accept this view. We think it is possible to distinguish between cattle-grids, the actual structure which the highway authority puts into the road and causes to become part of the road surface, and the rest of the road surface itself, though it would not be proper in this Bill, as I have already said, to depart in any serious degree from the general principle as to the law of misfeasance.
If the hon. Gentleman will be so good as to withdraw his Amendment we will introduce an Amendment providing that so far as cattle-grids are concerned, but not the adjoining road surface and not the road surface of by passes, the liability of the highway authority should not be excluded by reference to the doctrine of nonfeasance. In other words, if a highway authority builds a cattle-grid and then through negligence fails to keep it in proper repair, with the result that it becomes a serious danger and on some occasion or other causes an accident, then we think the law should be amended so that liability attaches in those circumstances.
I should like to make it perfectly clear —and I feel the hon. Gentleman who moved this Amendment would agree 1434 with me in this because he has by implication agreed that one could not accept the reverse in general in referring to nonfeasance—that we think it is possible to distinguish this case from the ordinary case which is within the general purview of nonfeasance. Possibly he has had the opportunity of considering the case of Skelton against the Epsom and Ewell Urban District Council. That case, as the law already stands, did emphasise a distinction between the surface of the road itself and something in the nature of a structure which is worked into the surface of the road and is allowed to get into such disrepair that it becomes a nuisance to those who use the road.
It is because we think that we can draw such a distinction and that we shall not encroach too much on the general principle if we amend this Bill, that we are prepared to meet the hon. Gentleman. We think that a cattle-grid is comparable to that kind of structure, to which, under the existing law, liability attaches in the event of the structure being allowed to become a nuisance owing to disrepair.
I want to make clear the length to which we are prepared to go. I hope the hon. Gentleman will agree with me that the Amendment should apply only to a cattle-grid itself and to the works, but not to the road surface. The ordinary law should remain applicable to the road surface and also to the surface of the by-pass. I think that goes most of the way which the hon. Gentleman wished to go by his Amendment. He does, by his Amendment, go a little further, because he actually includes the surface of the by-pass itself, but he ought to bear in mind the general principle and the caution that one should adopt in reversing any general principle, which is as deeply embedded in our law as is the principle of road liability.
I feel that we should stop there, and that we should limit the Amendment to what I might call the structure of the cattle-grid itself and the works which are referred to in Clause 1. I hope that he will think that is a reasonable way of meeting the situation, and, if he does so, that he will ask leave to withdraw the Amendment upon the understanding that the Government are prepared to put down an Amendment in the sense I have indicated for the purpose of the Report stage.
§ 5.30 p.m.
§ Mr. Hay
Perhaps the Solicitor-General would deal with two further points. Would he be prepared, since he has been so generous on this matter generally, to accept my Amendment if the words "or by-pass" were deleted, because I think that the Amendment as it would then stand would fulfil exactly that purpose. I do not ask him to give a direct reply, but perhaps he would consider that point in introducing an Amendment at a later stage. It has been said that so far as the Government are concerned any question of nonfeasance or misfeasance could only be applicable to the structure of the work. With that I agree, and that was the purpose of the Amendment.
There is a further question, because it seems to me, in the example I gave, that the road surface which surrounds the grid itself may become worn down. What would be the position then? Unless that point is borne in mind in drafting a future Amendment, it may lead to many complicated questions as to whether it was the fault of the structure, which may have risen slightly, or the fault of the road, which may have fallen slightly. I mention these points so that the right hon. and learned Gentleman will have an opportunity of considering them later.
§ Sir A. Hudson
I am certain that the statement of the right hon. and learned Gentleman has given great satisfaction to those interested in this Bill because I know from communications which I have had from the farming community and others that they have been a little anxious if cattle-grids become, as we hope they will, fairly common, as to what would be the legal effect if an Amendment such as this were not put in the Bill. I was not quite clear whether it was the intention of the Solicitor-General to put down an Amendment himself. We could then look at it, and perhaps some of us could add our names to it. That might save trouble, and if that is his intention, I am sure that it will be the best thing to do.
§ Mr. Grimond
I am sure that the Solicitor-General intends to do ample justice, but there is a question that I should like to ask, particularly in regard to Clause 4. In the question of nonfeasance there must be an element of 1436 non-repair. Supposing animals stray on to a grid, in respect of which there is no question of nonfeasance, because it is badly sited. Does Clause 4 allow a claim against the authority or not?
§ Mr. Grimond
I think that the point also arises on Clause 3—the question of whether any liability would arise in a case where not even nonfeasance has arisen.
§ Mr. Harmer Nicholls (Peterborough)
When the Solicitor-General gives us the Amendment which he has promised, could he define a cattle-grid for the purpose of his Amendment to cover all land one yard at least on either side of the structure itself? I do not think that we ought to ignore the technical aspect of this, and one yard on either side of the structure would act in the nature of the foundations of the grid itself. If a grid could be defined as a structure and include one yard on either side at each end that might meet the point which is made in the Amendment.
I think that what the right hon. and learned Gentleman has said has done much to clarify the position. I am interested in the matter of nonfeasance and misfeasance because I believe the liability of local authorities for nonfeasance and misfeasance was finally settled in the year 1788 in a case known as Russell v. Men of Devon. This afternoon, the hon. and gallant Member for Devon, North (Brigadier Peto), the hon. Member for Torquay (Mr. C. Williams) and myself have the proud privilege of representing that stalwart section of the community. We are as resolved as our predecessors were to do what we can in the defence of the rights of individual citizens of that county and the local authority which so well serves their interests.
§ Mr. L. M. Lever (Manchester, Ardwick)
I am sure that the feelings expressed by the Solicitor-General will be universally accepted by the House. This question of misfeasance and nonfeasance has been one which has given lawyers who have been called upon to advise very great heart-searching in regard to the public generally, in any case in which 1437 Citizens unfortunately have been unable to claim through misfeasance of their local authority.
The Solicitor-General has made a very generous gesture in this matter because were he to accept the principle that the appropriate authority should be liable for misfeasance and nonfeasance on a similar basis, it would mean that authorities, particularly at a time when authorities are taking steps to put their roads in a proper state of repair in the post-war conditions, would be in grave difficulty and subject to being sued for claims on divers counts.
The gesture of the Solicitor-General will help to deal with what might be a difficulty in regard to cattle-grids. As this is an Act dealing with cattle-grids alone, I think that what he said about cattle-grids and the Amendment he may draft, giving effect to the question of cattle-grids in relation to liability may be accepted by the House today, and the whole question of misfeasance and nonfeasance generally left to an appropriate later date.
If this matter were left as a question of the surface in relation to the cattle-grids, it might mean that citizens who were injured in the industrial areas might be dealt with on one basis and citizens injured in the areas where there were cattle-grids might have the benefit of another interpretation of the law. In those circumstances, we want to get the law uniform for the citizens who live in the industrial areas and those who live in the country areas where these cattle-grids are, and the Solicitor-General has done well indeed to take the matter a step further as he has done in relation to the subject under discussion today.
§ The Solicitor-General
My hon. Friend the Member for Ardwick (Mr. L. M. Lever) has said that I showed a very generous gesture. It was very nice of him to say so, and I hope that he will not mind my saying that I am not sure that that is altogether the right term, because in dealing with a problem of this sort one has two separate sides to consider, and one cannot be generous to one side at the expense of the other.
As one hon. Gentleman opposite reminded the Committee, this doctrine has stood since 1788 since the Russell v. Men of Devon case, and the whole liability of local authorities is based upon that doctrine. Therefore, one has to be 1438 extremely chary of invading that doctrine because it very largely affects the position of all local authorities in these matters. It was for that reason that I was very careful to say that I was only going to a particular point because I thought it should be distinguished from the general run of cases which the doctrine affects. I say that because the hon. Member for Henley (Mr. Hay) when he spoke again, and one of his hon. Friends, also raised the question of the adjoining land. Frankly, I rather hesitate to go as far as that.
The question immediately arises, if we undertake to repair the grid, as to the measure of the undertaking in regard to the few inches, or the yard as the hon. Member has suggested, on each side of it. That immediately becomes a rather important matter of principle. It is for that reason we must proceed very warily to see what is the measure of liability, the new measure of liability, being imposed on local authorities. I should hesitate to go any further than I have said. I should hesitate to travel onto the road surface adjoining the grid, or to go outside the area the grid itself covers.
I hope the Committee will agree that that is as far as I can safely go. The hon. Member for Henley asked whether I would accept the Amendment with the omission of the words "or by-pass." Having had five years close contact with Parliamentary Counsel, that is a thing I should hesitate to do, because all sorts of difficulties arise when one begins to consider drafting. I do not think I can undertake to accept his drafting. Drafting will have to be carefully considered and the problem properly investigated from all angles.
I hope the Committee will agree that in doing what I think is right, namely, to see that a person who is injured because he gets trapped in a worn grid that has been allowed to fall out of repair, so much so as to become a source of danger and nuisance, should have the right to recover damage for the injuries he has sustained, I cannot be expected to go any further.
§ Mr. Renton
I also welcome the conclusion the Solicitor-General has reached, but I must say I am rather surprised with the hesitancy of his approach to a cattle-grid. He has adopted a rather 1439 frightened view, and his fears appear to arise from the fact that some modification has to be made in what he has described as the deep-rooted principles of the common law. Like all Members of this Committee, I have a great respect for the English common law, which has been described as the sublimated common sense of the centuries. On the other hand, we have found the reasons that have made that law sensible in the past, so long ago as 1788, not always make it sensible when we are legislating for an entirely new departure.
The deep-rooted principles must be considered in the light of the fact that a precisely opposite principle applies in Scotland, to which this Bill also refers. My surprise is that the Government have not given this matter of the conflict between English and Scottish ancient common law much more careful consideration than they have apparently done. I find it surprising that we should have to wait until today before the Solicitor-General has applied his mind to getting this ancient confusion cleared up. This is, after all, the most important Bill of the Session, and this is an important point in it. One would have thought that the Government would have given the matter closer attention.
§ 5.45 p.m.
§ The Chairman
The hon. Member must really confine his remarks to the Amendment. And, if I may say so, when a Minister has replied more than once, and at some length, and given an undertaking to the apparent satisfaction of the Committee, it is not necessary to enter upon a wide dissertation on the common law.
§ Mr. Renton
I apologise if I have trespassed too far, but I was somewhat shocked that this matter had come to be discussed here at all.
§ Viscount Hinchingbrooke
Before my hon. Friend decides what he wishes to do in regard to this Amendment, may I ask the Solicitor-General to be specific about his undertaking? If this Amendment is withdrawn, does he undertake to introduce appropriate words of his own on the Report stage, or at a later stage when the Bill is considered in another place?
§ The Solicitor-General
I have no doubt that we shall be able to do it by the Report stage, but I hope that will not be considered an undertaking on my part, as it may have to be done later. I anticipate that it will be done by the Report stage, and the Amendment will go to the limits I have indicated.
§ Mr. Hay
I should like to express my appreciation to the Solicitor-General for the way he has dealt with this subject. As the hon. Member for Ardwick (Mr. L. M. Lever) has said, this is a question which sooner or later the House will have to consider. If the Solicitor-General will introduce an Amendment of his own, in regard to which, if I may say so, we shall be only too willing to help, I think the point can be dealt with and something constructive added to the Bill. In these circumstances, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Sir A. Hudson
I beg to move, in page 5, line 7, at the end, to insert:(4) Nothing in this section shall prevent the appropriate authority from entering into an agreement with any person in whom responsibility for repair and liability for non-repair of a road not repairable by the inhabitants at large is vested as to the defraying by that person of a part, not exceeding one-third, of the expenses incurred by the appropriate authority in consequence of the provisions of this section.
§ The Chairman
I think it would be convenient if we also discussed the Amendment in identical terms, in page 5, line 13, and the new Clause—[Agreement for defraying costs in the case of unclassified roads].
§ Sir A. Hudson
I was about to make that suggestion. These Amendments and the Clause are among the most important we have to discuss, because they raise the whole question of who is to defray the costs for unclassified roads. I do not mean in this connection so much the Government as the appropriate authority, and, as we suggest, others who are interested. We were told by the Parliamentary Secretary to the Ministry of Agriculture that unclassified roads are the sole responsibility of the local authorities named in Clause 1 (7), which lays down that the appropriate authority for any other road shall be one of three classes.
1441 We had hoped that it might be possible for the central authority to help, because it is on these unclassified roads that the majority of the grids will be placed. I hope we will be able to hear from the Minister whether it has been possible, within the framework of the Bill, to give any financial assistance. What we are suggesting here is not quite that. We are assuming that the appropriate authority is one of the three classes to which I have just referred, but we also feel that it might be possible, or should be possible, for others interested in these private roads to make some contribution.
I am told that that is done by the Devon County Council, who I presume do it under a Private Bill. The reason we want it is that we wish to have as many of these grids as possibly undertaken, and we feel that the appropriate authority, who may not be very wealthy, would be a little more inclined to do something of the kind if it were able to obtain some of the cost from interested parties. We suggest that the amount should be one-third, that being I believe the proportion the Devon County Council have in their Private Bill.
This Clause deals with repairs, and in our proposed new Clause—which I wish could come first—we deal with the larger question of the provision, alteration or removal of a cattle-grid, by-pass or works. Of course, if what we propose here is accepted, no doubt when we come to the proposed new Clause, which deals with a rather larger question, that too will be accepted. I am encouraged, because on Second Reading the Parliamentary Secretary to the Ministry of Agriculture dealt at some length with the benefits which he hoped would result from this Bill, such as an increase of cattle and sheep grazing which he thought might be possible on land marginal to the road. He also said that the purpose of the Bill was to put legality beyond doubt, and in appropriate cases to provide Government assistance for the first time.
The object of these Amendments is simply to air the question of the unclassified roads, and to get a statement from the Minister—although I am afraid from what was said on Second Reading that he may not find it possible to do what we want—as to whether it may not be possible, first, for some form of Exchequer grant to be made for these roads, 1442 and secondly, to allow appropriate local authorities, be they large or small, to be able to enter into partnership with those who are interested to defray the cost, not only for repairs but as we say later on, for the provision and even the removal of such grids.
§ Mr. Barnes
I shall deal first with the question of making a grant. I am afraid I cannot hold out any hope that on a Bill of this description the method of paying grants will be altered. A short time ago the percentage payment of grants to Classes I, II and III roads was raised considerably, and a very substantial additional mileage was taken into the trunk road system which the Central Government Fund meet entirely. On a Bill of this description, which has been introduced primarily to facilitate certain limited local agricultural interests, I am afraid I could not hold out any hope that we will review the grant system because of these innovations.
I am, however, prepared to accept the purpose of the Amendments and the proposed new Clause. We do not wish to be tied down to the figure of one-third; we should rather like freedom at the moment to draft the necessary Amendments to meet fully the purpose the hon. Gentleman has in mind. If that meets his purpose, we shall deal as comprehensively as we can with all the points that he raises in these two Amendments and in the proposed new Clause.
§ Sir A. Hudson
I thank the Minister for what he has said. I presume that he himself will draft the necessary wording later on. In view of that assurance, I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.