Haydon v Kent County Council

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeTHE MASTER OF THE ROLLS,Lord Justice GOFF,Lord Justice SHAW
Judgment Date18 November 1977
Judgment citation (vLex)[1977] EWCA Civ J1118-1
Docket Number1975 H. No. 83

[1977] EWCA Civ J1118-1

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice Queen's Bench Division

Maidstone District Registry

(Mr. Justice O'Connor)

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Goff and

Lord Justice Shaw

1975 H. No. 83
Annie Edith Matilda Haydon
Plaintiff
(Respondent)
and
The Kent County Council
Defendants
(Appellants)

MR. M. WRIGHT, Q.C.; MR. J. CROWLEY and MR. C. PURCHAS (instructed by Messrs. Argles & Court, Solicitors, Maidstone) appeared on behalf of the Plaintiff (Respondent).

MR. M. TURNER, Q.C. and MR. R. CROXON (instructed by Messrs, Hair & Co., Solicitors, London) appeared on behalf of the Defendants (Appellants).

THE MASTER OF THE ROLLS
1

Mrs. Haydon lives next to the Pilgrim's Way. That is by tradition the way taken by the pilgrims to visit the shrine of Thomas a Becket at Canterbury. It was in those days a grassy track running along the ridge of the North Downs. From its paths ran down to the villages in the valleys below. All were at that time highways along which everyone was entitled to go. They have remained highways ever since. But of very different kinds. At places the Pilgrim's Way is still only a grassy track. At others it has become metalled with stone. At yet others it is a motor road. Likewise with the ways down to the villages. Some are still only grass paths. They are trodden by ramblers for pleasure. Others have been surfaced with tarmac. They are used by the local folk for access to their houses and shops: and by the children to go to school. Yet others have become metalled roads for transport of all kinds.

2

All these developments come under our scrutiny in this case. It is at Kemsing near Sevenoaks. The Pilgrim's Way at this point is now a metalled road going along the high ground at a height of 400 feet above sea level. The village of Kemsing is in the valley 74 feet lower. It used to be a village, but it is now a town. There are several houses bordering the road along the Pilgrim's Way. They are called Pilgrim's Way Cottages. Mrs. Haydon lives in one of them.

3

The path needs close description. It is steep with a gradient of 1 in 6. It is narrow with a width of about 6 or 7 feet. It is bounded by garden fences and hedges. It is surfaced with tarmacadam. There are drains laid underneath. There are two or three houses beside it with access to it on foot. At the lower end is the Kemsing County Primary School. 400 or 500 children use it every day. So do many residents andtradesmen. The path is only for people on foot. It is too narrow and too steep for vehicles. But it is much used because it is the one short way from the top to the bottom. It saves going a long way round by the roads.

4

In February 1973 there were wintry conditions. Snow fell and there was a hard frost. After two days this steep path had become very slippery and dangerous. On the Wednesday evening when people walked up it, they had to hold on to the bushes and fence to save themselves from slipping over. On the Thursday morning Mrs. Haydon set out from her home to go to work. She is a lady of 61 years of age. She lives at 7 Pilgrim's Way and worked in the village. She went down the footpath very carefully because it was so slippery. But, despite all her care, she slipped and broke her ankle. It was a bad break. It has mended, but there is a risk of ill effects.

5

She now claims damages from the Kent County Council. She says that they were the highway authority and were liable by statute to maintain this footpath. She says that they ought to have made it safe by putting salt and grit down, just as they do with main roads and secondary roads. And, as they did not do so they are liable to her. She was supported by the Headmaster of the Primary School. He said that in winter when there is ice and snow about, the footpath becomes dangerous. When any frost comes on top of it, the children make slides down them. On numerous occasions children had fallen and hurt themselves. So much so that he had asked the County Ground staff for salt and they have provided it. Mrs. Haydon was also supported by a Council roadman who lives in Kemsing. He saw the place on the Wednesday evening, before Mrs. Haydon's accident. He had gone up the path and found it so slippery and dangerous that he reported it to his superiors.On the next morning he put grit and salt on it "but not in time to save Mrs, Haydon. She fell down shortly before the roadmen started work.

6

On the other hand, the Kent County Council pay that they do everything possible to keep open all the main traffic routes. They have a warning system by which they get weather reports when snow or frost is expected. They send out lorries with salt and grit to keep clear the main traffic routes. But they simply have not the men or the lorries to go through all the footpaths. There are 4,000 miles of footpaths in Kent. If they have a report about a particular footpath, they will clear it if they can spare the men for it. But they had had no complaints about this footpath at Kemsing. So they had not done anything about it before their roadman reported it on the Thursday morning. And then it was cleared at once. But not in time to save Mrs. Haydon from falling.

7

Such are the facts, flow for the law.

8

The plaintiff relies on the duty imposed by section 44 of the Highways Act, 1959, which says that the Highway Authority shall be "under a duty to maintain the highway" The word "maintain" is defined in Section 295, which says that "maintenance" includes repair. The judge said that this showed that "maintain" meant more than physically repairing the surface of the highway. It included "the practice which local authorities adopt of putting down salt and grit on the highway where there has been a fall of snow or icy conditions". He went on to enunciate this general proposition: "Where there are pieces of highway, such as this, which have their own special dangers in times of snow and frost, then in my judgment there is a duty on the local authority to take reasonable steps to mitigate the danger of people fallingover and hurting themselves. That they failed to do in the present case, and the plaintiff is entitled to succeed on liability". He awarded her £4,750 and interest.

9

The judgment has caused the County Council some anxiety: for, if they have to put down sand and grit on the many footpaths which become slippery in winter, it would be a task beyond anything they have hitherto supposed to be their duty. So they appeal to this court.

10

It is necessary to consider two statutes. The first is the Highways Act, 1959, which imposes a duty on the highway authority to maintain at the public expense every highway within its district That is a duty owed to the public at large, but it gives no cause of action to any individual who is injured by neglect to perform it. The second is the Highway Act, 1961, which gives a cause of action to a person who is injured. The two Acts must be considered quite separately. The extent of the duty under the 1959 Act cannot be affected by the provisions of the 1961 Act.

11

THE CONSTRUCTION OF THE HIGHWAYS ACT. 1959

12

In construing the Highways Act, 1959, it is important to observe that in its long title it is described as an "Act to consolidate with amendments certain enactments relating to highways". Such an Act is to be construed very differently from an ordinary Act of Parliament: and for a very good reason. The procedure in both Houses is very different. What happened can be seen in Hansard. The discussion is much shorter. The Bill is accepted in both Houses as being simply a re-statement of the existing law - effecting no alteration therein - except insofar as those amendments are drawn specifically to the attention of each House. So there is no debate except on specific amendments. When this is appreciated, it is obviousthat the courts must construe the Act on the principle stated by lord Reid in Inland Revenue Commissioners v. Hinchy (1960) Appeal Cases at page 768. "… One must presume that such an Act makes no substantial change in the previous law unless forced by the words of the Act to a contrary conclusion … Therefore, in interpreting a consolidation Act, it is proper to look at the earlier provisions which it consolidated".

13

That he proceeds to do. The same principle was applied by the majority of the House in Maunsell v. Olins (1975) Appeal Cases 373 and commented on by Lord Wilberforce in Farrell v. Alexander (1977) Appeal Cases. So here we must look at the common law and at the previous Highway Acts. I have done this. At common law the only obligation on the inhabitants at large was to repair and keep in repair. The indictment lay only for non-repair. The various Highways Acts set up new highway authorities, but retained unaltered all the substantive law as to their powers and duties and exemptions. A good instance is to be found in section 298 of the 1959 Act. That makes it clear that the new highway authorities were to be exempt from liability for non-repair just as the inhabitants at large were exempt by common law. Another instance is section 129 which imposes a duty to remove snow from the highway. It repeats word for word section 26 of the Highways Act, 1835.

14

Coming now to section 44 of the 1959 Act, it seems to me that it puts in modern form the duty at common law of the inhabitants of a parish to repair and keep in repair the highways. It is described in the previous statutes as a duty to "maintain" the highways and is used as synonymous with "repair and keep in repair". Thus section 6 of the Act of 1835 said: "…That the inhabitants of every parish maintaining its own highways" …shall appoint a surveyor "which surveyor shall repair and keep in repair the several highways which are now or hereafter liable to be repaired by the said parish". And section 23 said that new highways like old ones...

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