Burton v West Suffolk County Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE SELLERS
Judgment Date11 March 1960
Judgment citation (vLex)[1960] EWCA Civ J0311-3
Date11 March 1960
CourtCourt of Appeal

[1960] EWCA Civ J0311-3

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Sellers,

Lord Justice Ormerod and

Lord Justice Upjohn.

Burton
and
West Suffolk County Council.

MR STEPHEN CHAMPMAN, Q.C. and MR ERIC MYERS (instructed by Messrs Ward, Bowie & Co., agents for Messrs Rustons & Lloyd, New market) appeared as Counsel behalf of the Appellant (Plaintiff)

MR E. MARTIN JUKES, Q.C. and MR D. HILL-SMITH (instructed by Messrs Berrymans) appeared as Counsel on behalf of the Respondents (Defendants)

LORD JUSTICE SELLERS
1

Shortly before 9 p.m. on the 11th December, 1954, the Plaintiff was driving his motor car along the Cambridge to Haverhill Road, from west to east that is, when he ran on to a patch of ice which caused the car to skid off the road into a tree. The car was damaged and the Plaintiff was injured.

2

In this action to recover damages against the highway authority responsible for the road, Mr. Justice Salmon found that the Plaintiff was driving at a reasonable speed on the crown or just over the crown of the road, and that he was in no way to blame for the skid or its consequences as no reasonable prudent driver would have been able to control it. Judgment was, however, entered for the Defendants, as the learned Judge held that no misfeasance on the part of the Defendants had been established.

3

In support of the Plaintiff's appeal it has been submitted, first, that the findings of the learned Judge showed misfeasance, and, second, that the Defendants negligently failed to warn the Plaintiff of the danger of the ice patch on the road.

4

The ice had formed across the road for a distance of about 58 ft. at the lowest part of the road in a position indicated on the plan by cross section 4, where flooding frequently took place at the time of heavy rain. The land slopes from the south to the road, and as the road has a camber the water generally collected on the south side of the road but the passage of vehicles and the percolation of some of the water kept the north side of the road damp too.

5

When flooding took place so as to be a danger to vehicles it was the practice of the Defendants' roadman to put out red flags by day and red lights by night, but precisely where they were put is not in evidence. On the 8th, 9th and 10th December flags and lights had been exhibited on account of the flooding, but by the morning of the Saturday, the 11the December, the day of the accident, the water had subsided and the experienced roadman thought that the flags and lights were no longer necessary.

6

A slight frost had set in early on Saturday, the 11th December. At 6 a.m. the temperature was 31.3 degrees, at 9 a.m. 30.4 degrees, but by noon it had risen to 38 degrees. In the evening the temperature had fallen to 30.7 degrees at 6 p.m. and 32.1 degrees at 9 p. m. The ice both was on the road at the time of the accident was described as a paper thin coating. It was not therefore due to any appreciable flooding on that day but it was on a part of the road which tended to keep damp from the water which ran off the adjoining land and had no adequate outlet through road drains.

7

The Judge found the road drainage to be inadequate and this has not been challenged. I understand that better drainage has been undertaken since 1954. In the course of his judgment the learned Judge said: "No one can be certain, but in my view the strong probability is if the road had been properly drained at the time there would have been no ice at this point where the accident occurred when the Plaintiff passed".

8

On those facts which I have briefly outlined, has the Plaintiff established liability on the Defendants? It appears that the West Suffolk Council, the Defendants, took over this highway in 1922. They did not construct the road. They contend rightly that they are not liable for nonfeasance.

9

The Appellant has sought to relay on the Defendants' liability in damages for active misfeasance by which the highway was made dangerous. The submission was in effect that if a highway authority undertakes the repair of a road but does not complete it sufficiently and adequately so that its condition still left a danger to road users, then that is misfeasance.

10

The only repair work relied on was that in March, 1954, the Defendants did some drainage work on the part of the road in question. The Judge was found that the Defendants improved the drainage. Precisely what they did is not clear, but it served to take some of the water off the road and so made the road some what less liable to flooding and less unsafe than it had been before. There was clearly nothing which the Defendants did then which created any danger actual or potential. Such work as was done was properly done. All that can be said is that enough was not done, which seems to be a clear case of non-feasance

11

Mr. Chapman's skilful and, if I may say so, bold argument was based mainly on observations of Mr. Justice Lush in McClelland v. Manchester Corporation, 1912, I King's Bench, page 118, form which I will cite only one short passage. On page 127 Mr. Justice Lush, a great authority on the common law, said: "If a highway authority, therefore, leaves a road alone and it gets out of repair, there is, of course, no doubt that no action can be brought, although damage ensues. But this doctrine had no application to a case where the road authority have done something, made up or altered or diverted a highway, and have omitted some precaution, which, if taken, would have made the work done safe instead of dangerous. You cannot sever what was omitted and left undone from what was committed and actually done, and say that because the accident was caused by the omission therefore it was non-feasance". The views of Mr. Justice Lush in that case were incorporated by him in a later case in 1919 of Moul v. Thomas Tilling Ltd. And Another, reported in 88 Law Journal Reports at page 505, where in the course of a judgment given in the Divisional Court on appeal from the Country Court Mr. Justice Lush said this: "If the damage was caused — I may use the words I used in McClelland's case — because they chose to do nothing at all to the road, they are not liable. I endeavored to make it clear in that case that it may be true to say that damage resulted through the highway authority doing work badly, although the immediate cause of the accident was their omission to take some steps which they ought to have taken. A highway authority make up a road, and, to make it safe, a certain thing requires to be done; they do not do that thing, and the road is unsafe in consequence — in one sense it is true to say that the accident happens through that omission to take the necessary steps, but in truth and in substance through their not properly completing the work they have done. In a case like that they are guilty of misfeasance, not with standing it was an omission to do a certain act which was the immediate cause of the accident. That is all I meant to say, and what I thought I said, in McClelland's case". Then there was a passage at the very end of the Judgment which was relied on in argument: "I wish to guard myself against saying that, if a highway authority choose to make up or repair a road, or a section of a road, there may not be a case of liability if they leave one spot, one part of the road which they do repair, in a dangerous condition. The case put during the argument as an illustration, that, if a highway authority do choose to maintain a road in repair and do work on that road, a case may arise in which it may be necessary to consider whether, if, deliberately leaving one hole open and confining their repair to another, doing one half of the road and not the other, they can shelter themselves under this doctrine that it is a case of mere non-feasance as regards the hole they do not repair. I express no opinion in regard to that, because this case was not put on such ground. I do not see how it could have been. I have only added this, because I did not wish it to be thought that, in my opinion, it necessarily follows that a road authority is justified in making up one half of a road and leaving the other half in a dangerous condition".

12

The case of McClelland, on which reliance was placed and the observation particularly of Mr. Justice Lush, were referred to in the course of the Judgments in Sheppard v. Mayor Aldermen and Burgesses of the Borough of Glossop, reported in 1921, 3 king's Bench, page 132. Lord Justice Bankes said, at page 140: "McClelland's case was decided by Mr. Justice Lush on the same principal, although I think the head note to the report does not sufficiently explain the decision. The defendants in that case had taken over an existing highway at the end of which there was a kind of ravine. They had made up the road and had placed lights in it. There was apparently beyond the ravine another street, and they had made up...

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