The Highways Act of 1961 had enlarged the duty of the highway authority and made it a general duty to take reasonable care to secure that the highway was not dangerous to traffic.
As to the effect of the 1961 Act, Diplock LJ said: ‘The duty at common law to maintain, which includes a duty to repair a highway, was not based in negligence but in nuisance. It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain, and the statutory duty which replaced it was also absolute.’ and ‘The defendants had a statutory duty to maintain the highway and the question of reasonable care has no relevance.’
DiplocK LJ continued: ‘Subsection (2) does not, in my opinion, make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by a danger on a highway. What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence — the onus of establishing this resting upon it. A convenient way of expressing the effect of the subsection is that it does not qualify the legal character of the duty imposed by subsection (1) but provides the highway authority with a statutory excuse for not performing it.
But however this may be there are two crucial differences between a liability in negligence and the statutory liability of a highway authority under this section. To succeed in an action for negligence the plaintiff must prove, inter alia, (1) that the defendant has been guilty of lack of reasonable care and (2) that such lack of reasonable care was the cause of the injury to him. In an action under the statute against a highway authority for injury sustained from a danger on a highway the plaintiff need prove neither of these things in order to succeed. Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) is not available to it at all. Nor is it a defence for the highway authority to show that even had it taken all reasonable care this might not have prevented the damage which caused the injury. It may be that if the highway authority could show that no amount of reasonable care on its part could have prevented the danger the common law defence of inevitable accident would be available to it; but that is not relied on in the present case and it is not necessary for us to express a final conclusion upon it.’
Diplock LJ, Sellers LJ
[1967] 1 QB 374
Highways Act 1961 58(2)
England and Wales
Citing:
Cited – Regina v Inhabitants of High Halden 1859
highhalden1859
The court considered the liability of the parish for injury arising from a failure to repair the road. The road was ‘an old soft road formed of Weald of Kent clay, and had never been repaired with hard substances’. The evidence was that in wet . .
Cited by:
Cited – Goodes v East Sussex County Council HL 16-Jun-2000
The claimant was driving along a road. He skidded on ice, crashed and was severely injured. He claimed damages saying that the Highway authority had failed to ‘maintain’ the road.
Held: The statutory duty on a highway authority to keep a road . .
Cited – Jones v Rhondda Cynon Taff County Borough Council CA 15-Jul-2008
The claimant, a fireman, sought damages for injuries suffered when he was injured answering a call out. He fell into a depressed area by the road side as he was pulling away a burning wooden pallet.
Held: The appeal was dismissed. The court . .
Cited – Rance v Essex County Council CA 21-Feb-1997
Appeal against refusal of claim against highway authority. The appellant was injured when her car crashed. A high volume of heavy goods vehicles had been using a local road, damaging the road and verges. Though the road was wide enough for her car . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Road Traffic
Leading Case
Updated: 11 November 2021; Ref: scu.244696