Clause 3.—(REPAIR OF CATTLE-GRIDS AND BY-PASSES IN ENGLAND.) (Hansard, 25 May 1950)

§ The Solicitor-General

I beg to move, in page 4, line 37, to leave out subsections (1) and (2), and to insert: (1) A cattle-grid provided in pursuance of this Act for any road, any gate or other works on a road provided for use in connection with such a cattle-grid, and any works provided for the purposes of a by-pass provided in pursuance of this Act, shall be repairable by the appropriate authority. This Amendment is designed to implement the undertaking that I gave during 2280 the Committee stage with reference to the question of repairs to cattle-grids. Apprehension was expressed by hon. Members opposite that the doctrine of nonfeasance might result in a situation in which, if a person was injured owing to a cattle-grid falling out of repair and becoming dangerous in consequence, he might by virtue of the doctrine of nonfeasance find that he was unable to recover damages for the injury which he sustained. I undertook to introduce an Amendment which would have the effect of making that doctrine inapplicable, at any rate, so far as the cattle-grid and the works were concerned. What I have sought to do in the Amendment is to implement that undertaking.

As most hon. Members know, the law relating to nonfeasance and misfeasance and the difference between the two is extremely subtle and complex. We have tried by our Amendment to bring about this situation: the question of repairing the cattle-grid when it falls into disrepair should not be one which appertains to the appropriate authority as a highway authority. If it were a function of the appropriate authority in its capacity as a highway authority, then the doctrine of nonfeasance would protect it from an action for damages. Therefore, we have tried by our Amendment to make the duty of repair a duty incumbent upon the appropriate authority otherwise than in its capacity as a highway authority. We think that that has the effect of excluding the applicability of the doctrine of nonfeasance in this case.

I think the noble Lord asked me when we were discussing the matter before whether I could undertake to have the Amendment put down on the Report Stage, and I said I would try to do so. I make that comment because I gather that some apprehension has been expressed whether this change that we have made does, in fact, effect the purpose that we have in mind. Certain doubts have been expressed and have been brought to my notice as to the reasons on which that apprehension is based. Although I move this Amendment, which I certainly thought and still hope does achieve the purpose we have in mind, I will also in advance, before apprehensions are voiced, give careful consideration to what I understand are doubts in the minds of hon. Members opposite. I hope this 2281 Amendment achieves our purpose, but we shall carefully consider the arguments which I gather exist to the effect that there may be a possible defect in our draft. We shall consider that point between now and the time when this Bill goes to another place.

§ Mr. Hay

I should like to express the appreciation of those of us on this side of the Committee to the ready way in which the right hon. and learned Gentleman acceded to our suggestion on the Committee Stage that something should be done to clear up this point. As I understand the Amendment, and linking it with what the right hon. and learned Gentleman said on the Comimttee stage, the position is that if this Amendment is now agreed to and forms part of the eventual Act, it will be clear beyond any shadow of doubt that when the appropriate authority instal a cattle-grid and works they will do so not in their capacity as a highway authority but in rather a different capacity altogether. Then, by reason of the case of Skelton v. The Epsom and Ewell Rural District Council which he mentioned on the Committee stage, automatically ipso jacto any person injured will be able to recover. As I understand it, that is the law which the right hon. and learned Gentleman wants to put into this Bill, and I shall certainly support it.