Brackenborough v Spalding Urban District Council

JurisdictionEngland & Wales
JudgeThe Lord Chancellor,Lord Russell of Killowen,Lord Macmillian,Lord Wright,Lord Porter
Judgment Date15 December 1941
Judgment citation (vLex)[1941] UKHL J1215-1
Date15 December 1941
CourtHouse of Lords

[1941] UKHL J1215-1

House of Lords

Lord Chancellor

Lord Russell of Killowen

Lord Macmillan

Lord Wright

Lord Porter

Brackenborough (Pauper)
Spalding Urban District Council

After hearing Counsel, as well on Monday the 20th as on Friday the 24th, Monday the 27th and Tuesday the 28th, days of October last, upon the Petition and Appeal of Alice Brackenborough, widow, Pauper, of Station Row, Old Leake, near Boston in the County of Lincoln, praying, that the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 25th of January 1940, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of the Spalding Urban District Council, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of January 1940, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

The Lord Chancellor

My Lords,


The Urban District Council of Spalding, the Respondents in this appeal, enjoy and exercise an ancient franchise in virtue of which they conduct a weekly cattle market on part of the highway in the borough of Spalding. Domesday Book (folio 351b of vol. 1 of 1783 edition) records that at Spalding (Spallinge) there was a market worth forty shillings, part of the possessions which the Conqueror took from Earl Algar and gave to his henchman Ivo Taillebois—names which revive memories of Kingsley's Hereward the Wake. It is presumably a development of this same market which is the locus of the events giving rise to the present litigation.


In addition to the ordinary use of Spalding market for the sale and purchase of cattle, the market is also an approved Certification Centre for the purpose of grading fat cattle whose owners desire to obtain certificates qualifying for the subsidy provided under the Live Stock Industry Act, 1937. Some cattle are brought to the market for this latter purpose only and not for sale. The Respondents receive certain tolls or payments in respect of both uses. It is unnecessary in the present case to discriminate between these two uses of the market, or to discuss the precise relations subsisting between the Respondents and the Certifying authority. On this point it is enough to say that a successful application to be appointed a Certification Centre does not remove from the market authority whatever responsibility properly attaches to it in respect of cattle sent to the market.


For the convenience of those resorting to the market the Respondents provide pens for the accommodation and segregation of cattle awaiting sale or grading. These pens are placed in the highway on both sides of New Road in the borough. The right of the Respondents so to occupy the highway is to be presumed to be an incident of their franchise. The pens are temporary structures erected on market days and removed at the close of business. They are of various kinds. There are ( a) four-sided enclosures consisting of wooden posts and rails; ( b) three-sided structures formed of iron uprights fixed in sockets in the ground with two taut chains across each of the three sides, the fourth side being entirely open; and ( c) structures identical on three sides with those last-mentioned but having a loose chain affixed to one of the posts on the fourth side which may be hooked to the opposite post across the opening. When so hooked the chain is not taut but sags to some extent. It is with a pen of this third type that the present case is concerned.


On 12th April, 1939, Mr. Proctor, a farmer and cattle breeder in the neighbourhood of Spalding, sent in 21 two-year-old steers to the market, twenty of them for grading and one for sale. They were driven to the market by two of his employees, a farm labourer named Pentelow and a farm lad named Walton. The steers arrived at the market rather before noon and were met there by Mr. Proctor's foreman, Frank Brackenborough. Certification was timed to begin at 2.30, at the conclusion of the sales. Meantime the steers were, by direction of an official, placed in two pens of the third type above-described and, after they had entered, the loose chain was hooked across the open end of each pen. Pentelow and Walton stood by to look after their charges. One of the steers managed to get its head under the slack chain and, as Pentelow put it, "nipped out" into the street and got away, in spite of Pentelow's efforts to prevent it. The steer was pursued by Walton. Brackenborough, who had been standing not far away, joined in the pursuit. In the course of the animal's career through the town Brackenborough endeavoured to stop it, but it charged him and knocked him down on the highway, causing him injuries so serious that he died in hospital a few hours later.


The Appellant, Brackenborough's widow, instituted proceedings against the Respondents for damages under Lord Campbell's Act and also under the Law Reform (Miscellaneous Provisions) Act, 1934. The case came on for trial at Lincoln Assizes before Cassels J., and a jury. The learned judge did not put separate questions to the jury, but after discussing various issues directed them to consider generally whether the defendants were negligent in providing a pen which was not reasonably secure. The jury returned a general verdict in favour of the Plaintiff and awarded damages under both heads. The resultant total for damages has been adjusted and is not in dispute. The verdict and judgment were set aside by the Court of Appeal (Slesser, MacKinnon, and Goddard L.JJ.), who ordered judgment to be entered in favour of the present Respondents. The Appellant now seeks to have the verdict and judgment in her favour restored by this House.


It is of importance to make it clear from the outset that it was common ground at your Lordships' bar that the deceased should, for the purposes of the case, be regarded as an ordinary member of the public who happened to be on the highway when the steer encountered him. The fact that he was an employee of Mr. Proctor, the owner of the steer, and was attending the market on his master's business, may therefore be left entirely out of account as having no bearing on the issue.


Markets have been conducted throughout the length and breadth of England from the earliest times. When, as here, an ancient market is held in a highway, the inference is (as in Attorney-General v. Horner, 11 A.C. 66) that the road was dedicated to the public subject to the exercise of the market rights. Markets naturally vary widely in their character and importance, and some are no doubt very primitive in the matter of equipment and facilities. In the case of Swindon Central Market Co., Ltd. v. Panting (1872), 27 L.T.N.S. 578, will be found an instance of a market held in a public street in which there were no stalls or pens at all. In ( Draper v. Sperring 10 C.B.N.S. 113), where the owner of a market held in the street placed hurdles for the purpose of penning sheep on market days, Willes J. observed at page 123:

"It is clear that the proprietor of the market was under no legal obligation to provide such accommodation as this."


When in 1934 the Respondents applied for and obtained approval of their market as a Certification Centre under the Cattle Industry (Emergency Powers) Act, 1934, they apparently satisfied the then Cattle Committee that they were "equipped with adequate penning or tying up accommodation for cattle." This approval has been continued by the Livestock Commission which, under the Act of 1937, has superseded the previous Cattle Committee. (See Cattle Subsidy Scheme Approval Order, 1937, S.R. & O., 1937, No. 659 Sched., para. 5.) It is obvious, however, that this circumstance does not create any liability to third parties for ineffective penning accommodation, if no such liability would exist without it.


The foundation of any liability in the Respondents must be breach of duty, and this is the way in which the case is framed in the Statement of Claim. Moreover, in order to succeed, the Appellant must establish that the Respondents owed some relevant duty to members of the public (such as the deceased) using the highway outside the ambit of the market, and that Brackenborough met his death owing to a breach of this duty. Even if the circumstances in which the Respondents directed, or permitted, the cattle to be put into the pens created some responsibility to their owner for the pens' condition (as might well be the case if there were anything in the structure which injured the cattle, as in Lax v. Darlington, 5 Ex.D. 28), this would be nothing to the point when the claim is for breach of duty to a member of the public using the ordinary highway. Mr. Justice Cassels, in a full and careful summing-up, directed the jury that the Respondents "should provide accommodation that was reasonably safe for the purpose for which it was used, and that was a duty which they would owe to the person who brought his cattle there, to his servants who were engaged in bringing the cattle there and looking after them when they were there, and to the public." It is the last four words of this sentence which would be applicable to the present case, and if the proposition of law therein stated is wrong, the verdict cannot stand.


The Court of Appeal, in reversing the decision below, went in large measure upon the point...

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2 cases
  • Searle v Wallbank
    • United Kingdom
    • House of Lords
    • 16 December 1946
    ...any rate to exercise reasonable care to do so, and it is perhaps desirable to express some view as to this wider question. 43In Brackenborough v. Spalding U.D.C. [1942], A.C. 310, Lord Wright suggests that the rule that the owner or occupier of land adjoining the highway is under no duty t......
  • An Application by Daniel Terence Brown for an Order of Certiorari and Another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 February 1981
    ...the only public right attaching to it was a right to buy and sell. The case of Brackehborough v. Spalding Urban District Council (1942) Appeal Cases 310 makes it plain that no public right attaches to the provision by the market owner of stalls and pens, which are governed by the contract b......

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