Cowley v Newmarket Local Board

JurisdictionUK Non-devolved
CourtHouse of Lords

Highway - Urban Authority - Surveyor of Highway - Liability to Action for Non-repair of Highway - Statutory Duty, Breach of - Public Health Act 1875 (38 & 39 Vict. c. 55) ss. 144, 149.

A highway was by virtue of the Public Health Act 1875 vested in and under the control of a local board as the urban authority for the district. Sects. 144 and 149 of that Act provide that the urban authority shall have and be subject to all the powers duties and liabilities of surveyors of highways, and shall from time to time level alter and repair the highways vested in them as occasion may require. An owner of land adjoining the highway in making an approach to his land without the sanction or authority of the local board made a drop in the level of the highway and left it in a dangerous condition. The appellant walking along the highway fell down the drop and was injured. In an action by him against the local board for suffering the highway to be out of repair and in a dangerous condition it appeared that the local board was chargeable only with non-feasance and not with misfeasance:—

Held, affirming the decision of the Court of Appeal, that no action lay against the local board.

Gibson v. Mayor of Preston (Law Rep. 5 Q. B. 218) approved.

APPEAL from a judgment of the Court of Appeal affirming a judgment of the Queen's Bench Division.

The appellant brought an action against the respondents, alleging in his statement of claim that the defendants wilfully, wrongfully, and negligently built and placed and suffered to remain on the footway of the highway leading from Newmarket to Bury St. Edmund's, at a point opposite to the entrance of the yard and stables of one Captain Machell, a brick wall and a declivity formed thereby, without any guard or light or means to prevent persons from falling over the same; also that the defendants wrongfully suffered and permitted the footway to be and continue out of repair and in a state and condition dangerous to foot-passengers using the same; and that by means of the said wrongful and negligent acts of the defendants, the plaintiff, while lawfully using and walking upon and along the footway after daylight had ceased, fell over the brick wall and down the declivity and sustained severe injuries.

At the trial before Denman J. and a common jury at Ipswich the following facts were proved or admitted:—

The Bury Road where the plaintiff was injured was a portion of a highway within the district for which the defendants were the urban authority. In 1873 Captain Machell being the owner of property adjoining the Bury Road made an entrance into his stable yard by cutting through the footpath which formed part of the highway. His property being on a lower level than the highway the entrance sloped downwards towards the stables, and Captain Machell built two dwarf walls to sustain the footpath on each side of the slope, thus making a drop of about eighteen inches in the footpath. This was done without the authority or sanction of the local authority. Up to 1886 the footpath at the point in question was covered with grass; after 1886 it was gravelled by the defendants. The plaintiff walking along the footpath one evening after dark in January 1889 fell over one of the dwarf walls into the slope and was hurt. The nearest lamp to the spot where he fell was about seventy yards.

The jury found a verdict for the plaintiff for £200, and in answer to questions put by the learned judge found that there was no negligence on the part of the plaintiff; that the defendants were guilty of negligence, and that the negligence consisted of “the combination of leaving the dwarf wall there and not supplying sufficient light.” Upon further consideration Denman J. being of opinion that no cause of action had been made out entered judgment for the defendants. This decision was affirmed by the Court of Appeal (Lord Esher M.R., Lindley and Lopes L.JJ.).

May 17, 19. A. H. Poyser and F. K. North for the appellant:—

The decisions appealed against went upon the ground that the defendants were in the same position as that of a surveyor of highways under the old law and not chargeable with misfeasance, but only with non-feasance. But for several reasons those decisions are unsound. No doubt under the old highway law it was held that no action would lie by an individual against the inhabitants of a county for an injury sustained in consequence of a county bridge being out of repair: Russell v. The Men of DevonF1; nor against the county sued in the name of the surveyor: McKinnon v. PensonF2; nor against the surveyor for an accident caused by his neglect to repair the highway: Young v. DavisF3. But those decisions rested on the grounds that the surveyor being an individual it would be highly inconvenient to have actions brought against him, and that a penalty was imposed on the surveyor by the Highway Act (5 & 6 Wm. 4 c. 50). A local board would not be subject to any penalty, for the liability to specific penalties is not transferred by the general words of the Public Health Act 1875. The liability of the defendants rests on the provisions of that Act (38 & 39 Vict. c. 55). By sect. 144 the urban authority is to execute the office of and be surveyor of highways and to have and be subject to all the powers, authorities, duties and liabilities of surveyors of highways under the law for the time being in force. Sect. 149 creates a distinction between the old surveyor and the urban authority. It enacts that highways shall vest in and be under the control of the urban authority. The highway was not vested in the surveyor. Then sect. 149 enacts that the urban authority shall from time to time cause the highway to be levelled, paved, &c., altered and repaired as occasion may require, with power to cause the soil of the streets to be raised, lowered or altered as they may think fit, and to place and keep in repair fences and posts for the safety of foot-passengers.

The verdict of the jury finds that there was a clear breach by the defendants of the duty imposed by sect. 149 in not repairing this highway and in leaving it in a dangerous condition. By sect. 161 the urban authority has power to contract with any person for the lighting of the highways, and may provide such lamps and other...

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