Burnside v Emerson

JurisdictionEngland & Wales
Judgment Date03 July 1968
Judgment citation (vLex)[1968] EWCA Civ J0703-1
CourtCourt of Appeal (Civil Division)
Date03 July 1968

[1968] EWCA Civ J0703-1

In The Supreme Court of Judicature

Court of Appeal


The Master of the Rolls (Lord Denning),

Lord Justice Diplock and

Mr. Justice Goff

James Gordon Bennett Burnside and Kathleen Eunice Burnside (married woman)
Audrey Grace Emerson (widow) and Westminister Bank Limited (the Executors of John William Charles Emerson deceased) and Nottinghamshire County Council

Appeal of the Second Defendants, Nottinghamshire County Council, against judgment of Mr. Justice Wrangham.

Mr. KENNETH MYNETT, Q.C. and Mr. J.P. HARRIS (instructed by Messrs. Sharpe Pritchard & Co., agents for Mr. A.R. Davie, Nottingham) appeared on behalf of the Appellants, Nottinghamshire County Council.

Mr. H.A, SKINNER, Q.C., and Mr. J. MILNE (instructed by Messrs. Alick Altman & Co., Nottingham) appeared on behalf of the First Defendants, Respondents.

THE PLAINTIFFS did not appear and were not represented.


This is an action for non-feasance against a highway authority. It has only been available since the Highway Act, 1961.


On 3rd September, 1965, at about 9 p.m., Mr. Burnside was driving his Jaguar motorcar along the main road from Melton Nowbray to Nottingham. It had been pouring all day. At this moment, the rain was coming down harder than ever. Mr. Burnside was driving his Jaguar car at quite a reasonable pace, only twenty-five miles an hour. On that night no one should have done any more. Mr. Emerson was coming in the opposite direction, driving his Rover motorcar. As Mr. Emerson drove along, his car ran into a pool of water which was half-way across the road: and in the result his Rover car went right across the road into the path of the oncoming Jaguar car. There was a collision. The Rover swung right round in the road facing the other direction and forced the Jaguar into the kerb. Mr. Emerson, the driver of the Rover was killed. Mr. Burnside, the driver of the Jaguar, and his wife suffered such serious injuries that the damages have been agreed at £10,500 for Mr. Burnside and £3,000 for his wife. Mr. and Mrs. Burnside brought an action at first against the executors of Mr. Emerson, claiming damages on the ground that it was Mr. Emerson's fault because he pulled right across on to his wrong side of the road. But then in answer the executors said that it was not Mr. Emerson's fault. It was the fault, they said; of the Nottinghamshire County Council because they had not done their duty in regard to the highway, in that they had not drained the road properly. So Mr. and Mrs. Burnside joined the Nottinghamshire County Council as defendants. After hearing the evidence, the Judge found that it was all due to the fault of the Highway Authority. The Highway Authority appeal to this Court, Mr. and Mrs. Burnside are not concerned. They will get their damages from one side or the other. The contest is between the two defendants. Are the Highway Authority liable for the condition of the road as it wasthat night? If they are liable, was Mr. Emerson himself at all to blame?


In the old days a Highway Authority was never liable in a civil action for non-feasance in not repairing a road, Even if they put in a system of drainage which turned out to be inadequate, they were not liable for the failure of the system. That was held to be non-feasance. See Burton v. West Suffolk Country Council ( 1960 2 Q.B. 72). That law has been altered by the Highways Act of 1961, which must be read with the Highways Act of 1959. Under those Acts the rule exempting a Highway Authority for non-feasance is abolished. There is a duty on a Highway Authority to maintain the highway; and "maintain" includes repair. If it is out of repair, they fail in their duty: and if damage results, they may now be made liable unless they prove that they used all reasonable care. The action involves three things:


First: The plaintiff must show that the road was in such a condition as to be dangerous for traffic. In seeing whether it was dangerous, foreseeability is an essential element. The state of affairs must be such that injury may reasonably be anticipated to persons using the highway. I said as much in 1956 in the unreported case of Morton v. Wheeler, which was accepted as correct by the Privy Council in the case of Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. (1967 A.C.) at page 640. In applying this test after the 1961 Act, the Courts at first were too much inclined to find a danger when there was none, or, at any rate, none that could reasonably be foreseen. In Liverpool people used to claim damages from the Liverpool Corporation whenever they tripped on a flagstone which might be half-an-inch higher than the next. In the first case which reached this Court, ( Griffiths v. Liverpool Corporation 1967 1 Q.B. 374), the Corporation admitted that there was a danger, and, accordingly were held liable. This Court, however, threw a great deal of doubt on the finding of danger. In the next case of ( Meggs v. Liverpool Corporation 1968 1 W.L.R. 689), the Courtmade it clear that the highway was not to be regarded as dangerous simply because there might occasionally be a ridge of half-an-inch or three-quarters of an inch. So those actions in Liverpool began to diminish. Very recently Mr. Justice Cumming -Bruce added a useful footnote in ( Littler v. Liverpool Corporation 1968 2 A.E.R. 343). He hoped that those sitting on Legal Aid Committees would remember that it is not, every trifling defect in a footway which makes it dangerous.


Second: The plaintiff must prove that the dangerous condition was due to a failure to maintain, which includes a failure to repair the highway. In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements. When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain, when there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is no evidence of a failure to maintain, Mr. Justice Lindley said in 1880 in Burgess v. Nerthwich Local Board (6 Q.B.P. 264) at page 276: "An occasional flooding, even if it temporarily renders a highway impassable is not sufficient to sustain an indictment for non-repair". So I would say that an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain. We all know that in times of heavy rain our highways do from time to time get flooded. Leaves and debris and all sorts of things may be swept in and cause flooding for a time without any failure to repair at all.


Third: If there is a failure to maintain, the Highway Authority is liable prima facie for any damage resulting therefrom. It can only escape liability if it proves that it took such care ay in all the circumstances was reasonable: and inconsidering this question, the Court will have regard to the various matters set out in Section 1(3) of the 1961 Act.


I turn to consider these three matters here. The first point is whether at this moment; the road was dangerous. The Area Surveyor was asked this question:- "(Q) And would you agree too that the combination of a pool of water at the point we have been talking about, plus this bend, plus bad weather conditions, plus rain, would make this a particularly dangerous hazard to a motorist? (A) Yes, I would". So the first point was proved. The road was dangerous.


The second point is whether there was failure to maintain. The mere presence of this pool of water on that night does not by itself show a failure to maintain. It had been raining all day. The pool of water had not been very deep for very long. Mr. Bailey, a farmer, who drove along at 8 o'clock had had no difficulty. It had become deep at 9 o'clock. Later on, at 10 o'clock, the pool was there, but was going down. But the evidence did not rest merely on the presence of the pool of water. There...

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