HC Deb 23 June 1961 vol 642 cc1883-96
Mr. Hay

I beg to move, in page 1, line 13, to leave out from "taken" to "reasonably" in line 14 and to insert: such care as in all the circumstances was. We now come to Clause I of the Bill, which is a new Clause added in Committee. Its intention, as hon. Members who were concerned with the Bill in its early stages will remember, is to abolish the age-old defence of non-feasance by which a local highway authority can avoid responsibility for any injury or damage done to a user of the highway simply as a result of its failure to repair the road.

In Committee, the hon. Member for Southampton, Itchen (Dr. King) moved an Amendment to leave out the then

The Chairman

I corrected the matter straight away.

Ayes 45, Noes 5.

Division No. 219.] AYES [11.26 p.m.
Agnew, Sir Peter Holland, Philip Renton, David
Allason, James Hughes, Hector (Aberdeen, N.) Reynolds, G. W.
Bell, Ronald Hughes, Hallett, Vice-Admiral John Simon, Rt. Hon. Sir Jocelyn
Brooman-White, R. Hughes-Young, Michael Snow, Julian
Campbell, Gordon (Moray & Nairn) Hunter, A. E. Thomson, G. M. (Dundee, E.)
Cleaver, Leonard Johnson, Eric (Blackley) Turner, Colin
Deedes, W. F. Kershaw, Anthony van Straubenzee, W. R.
Dugdale, Rt. Hon. John Key, Rt. Hon. C. W. Vane, W. M. F.
Ede, Rt. Hon. C. MacArthur, Ian Walker, Peter
Finch, Harold MacColl, James Ward, Dame Irene
Glyn, Dr. Alan (Clapham) Mitchison, G. R. Weitzman, David
Harris, Reader (Heston) Owen, Will White, Mrs. Eirene
Harrison, Brian (Maldon) Pannell, Charles (Leeds, W.) Williams, W. T. (Warrington)
Harrison, Col. J. H. (Eye) Parker, John
Hay, John Partridge, E. TELLERS FOR THE AYES:
Herbison, Miss Margaret Redmayne, Rt. Hon. Martin Mr. Aitken and Mr. Talbot.
Castle, Mrs. Barbara Wells, John (Maidstone) TELLERS FOR THE NOES:
Holt, Arthur Williams, Dudley (Exeter) Mr. Lipton and Mr. Wigg.
Parkin, B. T.

subsection (2) and to insert an alternative. The point was that in subsection (2) a statutory defence was provided for a highway authority to a claim made under this Clause. It gives the local highway authority the defence of proving that it had taken—these are the important words: or had had no reasonable opportunity to take, such steps as in all the circumstances were reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. The hon. Member, whom I am sorry to see is unable to be present this afternoon, took the view that that was placing too heavy an onus of proof on the local highway authority. If I may paraphrase the purpose of his Amendment, it was to place an obligation on the plaintiff to prove positively that the local highway authority had failed to provide for the safety of traffic using the highway. I pointed out to him and to the Committee at that stage that in fact it would be extremely difficult for a private person to do that. I pointed out that we conceived of actions of this kind in circumstances where the plaintiff could say that he or she had been at a particular place on the highway at a certain date and time when a certain defect in the highway was clearly due to the failure on the part of the highway authority to repair and that he or she suffered injury and therefore suffered damage. I pointed out that it would be tantamount almost to impossibility—

Mr. MacColl

I am not sure whether the hon. Gentleman is quoting or paraphrasing.

Mr. Hay

I am trying to tell the House roughly what happened in Committee. If the hon. Member will look at the last two or three pages of the OFFICIAL REPORT of the Standing Committee's proceedings, he will be able to refresh his memory about exactly what I said. I told the Committee that it seemed tantamount to placing a virtual impossibility on the shoulders of the plaintiff, because it would be very difficult for him to show in a positive way that the local highway authority had in fact failed to take steps to put things right. Having discussed the matter, the hon. Member for Southampton, Itchen (Dr. King) told us that he was satisfied with the explanation. I gave an undertaking that I would have the point examined further and this Amendment is the result.

Local highway authorities have told us that they want to have the concept of reasonable care substituted for the words in the Clause: …such steps as in all the circumstances were reasonably required…". They take the not illogical view that the reference to "steps" would require something positive on their part. They would not have been completely satisfied by a simple Amendment to leave out the reference to "steps" because they wanted it to be left open to them to argue, if necessary in court, that, even where they had taken no steps whatever, they had not necessarily failed to take reasonable care to avoid danger.

Their argument was that there may be, and probably are, a great many highways in different parts of the country where it would be perfectly reasonable not to repair the highways. Stretches of highway might be very little used in remote parts of the country, and it was their view that in cases arising out of this Clause and in respect of those places it would be putting a very heavy burden on them to have to say that they had taken steps. Accordingly, we looked again at the drafting and the Amendment before the House is the result.

The brief effect of the Amendment is to make sure that local highway authorities will not have to prove that they should have taken steps and that it was reasonable for them not to take steps. It will make clear that the care they have taken in the circumstances of each case would be such as would be considered by a reasonable person to be adequate. That, as briefly as I can explain it, is the purpose of the Amendment, and I hope that the House will agree to it.

Mr. J. Wells

I appreciate the good attempt that my hon. Friend the Parliamentary Secretary has made to meet the wishes that, I understand, have been expressed on this matter, but I still have grave doubts about the effect. I hope the House will permit me to illustrate my thoughts with examples from my own constituency, because one's knowledge of the highway in any detail must be related closely to individual places.

In Kent, the main highway from Maidstone to Tonbridge is being altered and improved. While the work of alteration and improvement is going forward, the surface of the highway is extremely had, particularly towards the edges of the road, and it may well be argued, when the Bill becomes law, that the highway authorities are being perfectly reasonable in not doing anything about the surface of the road because it is being altered, and that they are therefore being wise and cautious in saving public money by not resurfacing, with a view to expending public money on taking out the bends, tearing down the hedges and making visibility greater.

In the meanwhile, there are many people, notably motor cyclists—and in the House today we are very concerned with the well being of motor cyclists—who are forced by virtue of the state of this highway to ride their motor cycles much too far towards the crown of the road. This is entirely due to the bad surface near the edges. If the highway authority were to mend the surface while the main works were still pending, as I think should be done, it might he said that it had acted unreasonably in its expenditure. Alternatively, it could be argued the other way, that by not mending the surface it had acted reasonably. Therefore, I am very puzzled about the effect that this defence will have where there are new, substantial alterations pending.

1.45 p.m.

We all know that there are many sections of the A.1 and other principal roads where the surface is extremely bad because works are going on. What is to be the defence of a highway authority where works are in progress of a completely different nature from the work of surfacing the road. Road works fall into two main categories, the category of providing safe roads, and the minor category of the yearly or bi-annual resurfacing, filling up potholes, and so on. What is to be the policy? Perhaps the Parliamentary Secretary will tell us what the policy of his Department is or will be in the future concerning highways for which he is reponsible in this matter of maintaining the surface while road improvements and bend eliminations are going on. How bad is he prepared to let the surfaces go?

This Clause deals with the responsibility of highway authorities in general and not merely with that of the Minister where he is the highway authority. I realise that the Parliamentary Secretary cannot speak for other highway authorities, but he may be able to give the House a lead about instructions or suggestions his Department may give to other highway authorities on this matter.

At the other end of the scale of road-making, there is the question of the many brand new roads and footpaths on housing estates just taken over from the contractors and builders. There is inevitable discusion about the surfacing due to the conditon in which the builders leave the road, and the highway authority very naturally has its rights in asserting the condition that it will expect when it takes over a new road.

There again, we have the considerable problem that after houses are newly built there may suddenly be last-minute changes about drains and so on. What will be the position of a highway authority which has just taken over a brand new road and which is picked up in part for a minor alteration? If it is near a housing estate it might be extremely dangerous because of small potholes. Is it to be the highway authority's defence that it was reasonable not to do anything because it was a new road? Perhaps the Parliamentary Secretary will give some guidance about the policy of reasonableness in this matter of resurfacing where works are taking place, and on the point of resurfacing roads and footpaths newly taken over by a highway authority. He might be able to give some guidance on how far the power of his Ministry will stretch in dealing with highway authorities other than those for which the Minister is responsible.

Dr. Alan Glyn

We are dealing with a very important Amendment. In this Clause we are altering a long-established law of the country and making nonfeasance actionable. As my hon. Friend the Member for Maidstone (Mr. J. Wells) said, we should inquire carefully into the defences which the local authority will have to protect it against any reasonable oversight, for example, when it is maintaining the roads. In this Clause we have to be reasonable. The Amendment is obviously intended to draw a balance between complete responsibility and the responsibility which it is reasonable for a highway authority to undertake.

As my hon. Friend said, we are dealing with two kinds of road work. First, we have what can only be described as temporary work. Often when travelling around the country one sees a sign, "Road works ahead". Provided that the warning system is adequate, I should have thought that a highway authority was in order to take up the road or to make any reasonable alterations to the highway at the same time, as long as the road was not unsafe. For example, as long as there are no large craters and no lack of proper signs, surely they should not be liable.

The second case, also mentioned by my hon. Friend, is that in which a road is being rebuilt and the existing road is being used only as a temporary road. I cannot see why a local authority should be compelled to spend a lot of money on a road which will serve the public for perhaps only a few weeks or months. If the local authority puts up a notice, "Temporary surface" or "Road under construction", and leaves it in a reasonable state of repair, surely that should be an adequate defence for the authority. I do not think that we should demand a perfect surface on such a road. One has to make a reasonable interpretation.

The Amendment seems to extend to more remote parts of the country where standards need not necessarily be as high as on the main arteries or in the towns. I think that in the Amendment we have achieved what we set out to achieve, which was to make non-feasance actionable but at the same time to give local authorities reasonable protection so that people do not bring vexatious actions against them without sufficient foundation.

In Committee we were all concerned about the possibility of pedestrians and other road users bringing actions against local authorities on flimsy grounds. We had in mind such examples as a lady with high-heeled shoes who tripped over a tiny unevenness of the pavement. We have to find some method of overcoming the danger of vexatious litigation. I think that the Amendment would cover those cases and would leave the Bill in the form in which we wish it to stand; nonfeasance would be actionable but at the same time a reasonable measure of protection would be given to the local authority to ensure that vexatious actions were not successful against them.

Mr. Ede (South Shields)

I strongly support the Amendment. I have been a member of various highway authorities for many years, and I have never felt meaner than when advised in various capacities by the clerk of the authority that, where an action for damages was brought against us, we had a cast-iron case although we knew that the road was bad and had done nothing to repair it. There is a way round even that difficulty, because the authority can be prosecuted at the assizes for leaving the road in a founderous condition. I have known the inhabitants of the parish in which I live indicted at Surrey assizes for that crime, and I have known them to be ordered by the judge to put the road into repair. But we do not want to go back to those archaic ways of dealing with the problem.

This is a reasonable compromise, and the words chosen cover all the points which have been raised by the hon. Member for Maidstone (Mr. J. Wells) and the hon. Member for Clapham (Dr. Alan Glyn). Normally there is a notice "Road works ahead". If, in addition to those engaged in scarifying and relaying the roads, employees of the authority are there to see that the traffic is regulated, warned and helped, then the evils which have been suggested will not arise, and I think that the local authority will have a particularly good case to present to anyone who brings an action against it.

I was amused when a secretary of an association of local authorities told me that he had been asked to draft a brief to defend the existing law under which non-feasance is not actionable, for he said that after spending many hours he had had to give up in despair. That is the proper way to look at the present conditions.

I should have thought that the words in the Amendment dealt adequately with the case of the remote road in an isolated area which is rarely used by traffic. When I was Home Secretary, after travelling in the Home Office car and reaching a certain place, I heard my chauffeur say to the ostler at the hotel, "How many roads are there round here which are not suitable for use by a motor car?" He replied, "I think there are four." My chauffeur said, "I will bet you that my governor will find a fifth for you."

We know that in the remote areas there are often little-used roads, sometimes little more than accommodation roads from the main highway to a remote farm or estate. People using those roads ought to know what to expect of them. I should have thought that a local authority would be protected in such a case if it put up a notice at the commencement of the road reading, "Public highway"—thus accepting the general liability—"Motorists are advised to proceed with caution." Words such as that would indicate to those using the road that it was not the sort of road on which they should necessarily expect to find a concrete surface all the way.

2.0 p.m.

Mr. J. Wells

Although the Bill applies only to England and Wales, could we not import an excellent idea which operates in Scotland? They put up notices saying that certain roads are category "C" roads.

Mr. Ede

I do not want to see too many notices on the side of roads. I was suggesting some kind of warning notice. Neither am I anxious to see Englishmen governed by the laws of Scotland. That is one thing we have managed to avoid, in spite of the length of time that Scotsmen spend trying to force their laws on us. It is no recommendation to me to say that they do this in Scotland. This is a reasonably workable compromise. If local authorities exercise their new freedom from anxiety reasonably so as not to create unnecessary anxiety among ordinary road users, the law of England will have been drafted with common sense.

Mr. Hay

With the leave of the House, may I briefly reply to the points raised by my hon. Friends the Members for Maidstone (Mr. J. Wells) and Clapham (Dr. Alan Glyn)? I am grateful to the right hon. Member for South Shields (Mr. Ede) for his support of the Amendment. I confirm the explanation he gave to my hon. Friends. As the Clause would stand if the Amendment were carried and the wording changed in lines 13 and 14, there is no doubt that the circumstances my hon. Friends had in mind would be completely covered. We are laying down a statutory defence which a local highway authority faced with an action for damages because it has not maintained the highway can raise. The words would be: it shall be a defence…to prove that the authority had taken such care as in all the circumstances was reasonably required". That is the answer to my hon. Friends. If a road is under repair or alterations are going on, those circumstances are obviously relevant in deciding whether the local highway authority has failed to keep up this statutory duty of care.

I am talking in this context about alterations to the highway itself. I am not talking about alterations to the highway as a result of the activities of statutory undertakers, such as the gas, electricity and telephone people. That matter is dealt with in a subsequent Amendment which I shall shortly move. There the obligation is rather different, but perhaps we can deal with that point when we reach it. As to the highway itself, I confirm that the Clause, with the Amendment, would have the effect of dealing with the situations my hon. Friends mentioned.

Amendment agreed to.

Mr. Hay

I beg to move, in page 2, line 35 at the end to insert: (7) This section shall not apply to damage resulting from breaking or opening or tunnel- ling or boring under a street by way of code-regulated works, being damage resulting from an event which occurred—

  1. (a) before the completion of the reinstatement or making good of the relevant part of the street in pursuance of the obligation imposed on the undertakers by subsection (2) of section seven of the Public Utilities Street Works Act, 1950; or
  2. (b) where the relevant part of the street is the subject of an election under the Third Schedule to that Act (which, with minor exceptions, limits the obligation of undertakers to the execution of interim restoration), during the period mentioned in subparagraph (a) of paragraph 3 of that Schedule;
and expressions used in this subsection and in the said Act of 1950 have the same meanings as in that Act. This is the Amendment to which I referred a few moments ago. It has been suggested to us following representations from the highway authority associations. They have been concerned at the possibility that they will become involved in actions resulting from a defect in the highway caused by statutory undertakers disturbing it when they exercise their power to break open or tunnel under the street for the purpose of laying, altering or maintaining their apparatus.

So long as the nonfeasance rule applied, no action could lie against anyone except the statutory undertakers, but when the rule is abolished a plaintiff might have a right of action against the highway authority for failing to make good the defective work of the statutory undertakers. This would be in addition to his right against the undertakers.

It is true—we discussed this point briefly in Committee—that the position of the highway authority would to some extent, if not entirely, be protected as a result of the operation of the Law Reform (Married Women and Tortfeasors) Act, 1935. If the authority was sued, it could join the undertakers in the action. If the court decided that the fault was that of the undertakers and not of the highway authority, the highway authority could obtain a complete indemnity for the costs and trouble to which it had been put. I do not think that the House would consider it altogether satisfactory that a highway authority should be put to all this trouble and difficulty of defending or becoming involved in an action of this kind, especially as the responsibility for the proper restoration of the highway rests fairly and squarely upon statutory undertakers as a result of the lengthy and clear provisions of the Public Utilities Street Works Act, 1950.

Highway authorities can quite properly be required to maintain the disturbed highway once the final restoration has been completed to their satisfaction by the undertakers. I remind the House that under Section 7 of the Public Utilities Street Works Act, 1950, the final restoration has to be done to the satisfaction of the highway authority. There is an alternative to this process. Under the Third Schedule to that Act an authority may exercise its right and elect to carry out the final reinstatement itself. In either that case or in the earlier case it then quite properly resumes responsibility for the fabric of that part of the highway. Where it makes such an election under the Third Schedule, there is a period of interim restoration where the disturbed portion of the highway may be in use, but the responsibility for its condition remains with the undertakers. The undertakers put down a temporary surface over the filled-in trench or the excavation, and that surface remains there until the filling has settled and compacted. Then the surface can be finally reinstated without the risk of future subsidence.

The effect of the Amendment is that, while the statutory undertakers remain responsible, the failure of the highway authority to maintain that piece of highway will not render it liable to action under Clause 1. Putting it as briefly as I can, the Amendment is intended to provide an additional defence of a kind for the local highway authority where the damage which is the cause of the injury is not of its making but the making of the statutory undertakers. We have sought in the Amendment to take account of the varying circumstances in which the situation may arise.

Dr. Alan Glyn

I am a little concerned about this, because I think that there is an opening up of responsibility. The normal procedure is that if the gas or electricity authorities want to carry out works they are authorised to do so. They dig up the road. Then then put down a temporary surface. The normal procedure is that the public authority later on repairs the road and puts it in its permanent form.

The Joint Parliamentary Secretary said that local authorities could rely on the Law Reform (Married Women and Tortfeasors) Act which, as far as I remember, allows parties to be joined. I should have preferred to rely on this, because if there is an accident or if a cause of action arises it is very difficult for a plaintiff to know exactly whose fault it is. He is not to know whether the repairs have been carried out by the electricity authority, the gas authority, or anybody else. He merely knows that there is a thoroughly bad surface on the public highway and that he has had a nasty accident.

I should have preferred to see this overlap covered by the Law Reform (Married Women and Tortfeasors) Act. Under that Act a plaintiff can join both defendants, and it is then up to the court to decide who was responsible for the negligence. I should like my hon. Friend's assurance on this matter. If a plaintiff is not quite sure whom he can bring his action against—a statutory undertaker or the highway authority—will it still be open to him to use the alternative procedure which my hon. Friend mentioned, remembering that this Amendment cannot be used in connection with the Public Utilities Street Works Act. I shall be grateful if my hon. Friend can give me an assurance that that course will still be open to the plaintiff.

Mr. Hay

Perhaps I may speak again, by leave of the House. There is much to be said in favour of leaving things as they are and relying upon the operation of the Law Reform (Married Women and Tortfeasors) Act, but we took the view that, as a result of our changing this very ancient law by legislation, it might happen that the highway authorities would be joined in many actions arising out of disturbances to the highway which were nothing to do with them but had been caused by statutory undertakers. It is a question of balance, and of trying to decide where the obligation should fall. We came to the conclusion that the best thing to do would be to put down this Amendment, which makes it clear that the highway authority, as such, is exempted from liability where damage has been caused by the activities of statutory undertakers.

It would be vexatious if highway authorities were liable to be sued as directly responsible for something which is not their responsibility, leaving it to them to go through the expensive and troublesome course of having to join statutory undertakers in their actions. We are concerned with highway authorities as representatives not merely of local authority bodies but of the ratepayers. A comparatively poor county might find the risk of incurring substantial expenditure of this kind a very serious matter. It is better to make it clear that the situation which arises from damage caused to the surface of a highway by statutory undertakers should be a matter of clear connection between the plaintiff and the undertakers, without the intervention of the highway authority.

My hon. Friend asked me how a prospective plaintiff would know that the hole in the road was caused by a statutory undertaker and not the highway authority. I should have thought that that would be a matter of normal inquiry. The obvious first step for anyone injured in this way would be to write to the highway authority, through his solicitors, informing it of the fact that injury had been caused.

Mr. Ede

The injured person might even do that without employing a solicitor.

Mr. Hay

Touché! I accept the rebuke from the right hon. Gentleman. But this was not intended to be advertising. In any event, the injured person ought to get in touch with the local highway authority and claim damages, and it would then be for the highway authority to say, "The hole into which you fell was caused not by us but by the gas board", or the electricity board, or whoever it was. "You have sent your letter to the wrong address." The injured person would then at once be put on notice that the highway authority disclaimed liability, and he would be able to apply to the right person. I am fairly sure that this would work well in practice.

Amendment agreed to.

Mr. Hay

I beg to move, in page 2, line 38, to leave out "arising" and to insert "resulting".

This is purely a drafting Amendment. Its intention is to preserve consistency of wording throughout the Bill. The words "damage resulting" are already used in page 1, line 9, and they were also included in the last Amendment with which we dealt.

Amendment agreed to.