Roads in UK Law

If section 44 meant that the highway authority were under a duty - an absolute duty - to remove snow and ice, they would be given an impossible task. If the highway authority were bound to clear all those of snow and ice whenever they become slippery or dangerous, they would require an army of men with modern machines and tools stationed at innumerable posts and moving forward information whenever there was a severe frost.

All motorists are guilty of errors of one kind or another on one occasion or another, and I think it would be quite unreal if roads were designed on the assumption that no driver would ever err. Indeed, as Lord du Parcq put it in the case of London Passenger Transport Board -v- Upson, already referred to, and reported in 1949 Appeal Cases, where the quotation appears at page 176:

In the case of the duty to repair, the road either satisfies the objective test formulated by Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 or it does not. No highway authority could avoid being from time to time in breach of its duty, which would apply not merely to fast carriage roads but to all highways, including pavements and footpaths.

Having considered the authorities cited to the learned trial judge and in this court, it is in my judgment clear that the Corporation's statutory duty under Section 44 of the 1959 Act is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them - taking account, of course, of the traffic reasonably to be expected on the particular highway.Having considered the authorities cited to the learned trial judge and in this court, it is in my judgment clear that the Corporation's statutory duty under Section 44 of the 1959 Act is reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them - taking account, of course, of the traffic reasonably to be expected on the particular highway.

At least there the state was able to raise an arguable case for distinguishing between the two categories of road. Here, instead, the section produces a result which is directly contrary to that which common sense would dictate.

The question to which this appeal gives rise is whether the law today should recognise that the public highway is a public place, on which all manner of reasonable activities may go on. Provided these activities are reasonable, do not involve the commission of a public or private nuisance, and do not amount to an obstruction of the highway unreasonably impeding the primary right of the general public to pass and repass, they should not constitute a trespass.

The duty of maintenance of a highway which was by Section 38(1) of the Highways Act 1959 removed from the inhabitants at large of any area, and by Section 44(1) of the same Act was placed upon the highway authority, is a duty not merely to keep a highway in such state of repair as it is at anyparticular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.