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Clause 9—(Supplementary Provisions As To Removal Of Obstructions From Highways)

Volume 645: debated on Monday 24 July 1961

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Lords Amendment: In page 7, line 17, leave out from beginning to "recover" in line 18.

I beg to move, That this House doth agree with the Lords in the said Amendment.

I think it might be convenient, Mr. Speaker, if we were to discuss at the same time the two following Amendments:

In line 19, after "caused" insert "or contributed to".

In line 24, at end insert:

",so however that no such expenses shall be recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction".

That will be all right, but I should indicate that the Amendment in line 24 involves considerations of Privilege.

Paragraph (c) of subsection (1) of Clause 9 as originally passed in this House empowered a highway authority to recover from the owner of an obstruction on the highway the cost of removing it and of fencing it or lighting it if necessary pending its removal unless the obstruction had been caused by some other person.

In another place it was represented that this last exception might be too narrow, because an obstruction might be caused which the owner could neither have prevented nor reasonably have foreseen. An example might be that a tree could be blown down by a strong gale or struck by lightning, or that the earth of a bank by the side of the road might slip by reason of severe floods.

I have been advised that at common law the liability of property owners in respect of damage caused by trees from their property is not absolute. Unless the owner had clearly failed to take reasonable care, he would not be held to be liable. So the Amendment is framed in accordance with this principle. It will except from the higliway authority's right to recover its expenses any case where the owner can show that he took reasonable care to ensure that the thing removed by the authority did not cause or contribute to obstruction. I think that this is a reasonable Amendment for us to accept.

Question put and agreed to.

Subsequent Lords Amendments agreed to.