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. It applies not only to major roads, but also to minor roads. It applies to all such ways, no matter whether they are little used or much used. Every one of them must be made safe - without any exception - if section 44 is given the wide meaning contended for.

But an absolute duty to keep the highway free of ice would be an altogether different matter. 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. There would be no question of ordering the highway authority to comply with its duty.

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.

Whatever its purpose, the operation of the provision in circumstances such as the present is truly bizarre. The diligent road-builder who completes his project in time is penalised by liability for compensation; the inefficient road-builder is rewarded by evading liability altogether. Not only do they suffer the inconvenience and disturbance of a protracted maintenance period, but they lose their right to any compensation for the effects of the use which they are already experiencing.

But at the heart of the court's reasoning on proportionality, as I read the decision, was the arbitrary distinction drawn by the domestic law between "public roads" as designated in the development plan, and "internal roads" which were no less public in practice, and no less appropriate for adoption by the authorities.

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.

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.