Explain why the House of Lords in noble v. Devon county council was not bound to follow the majority decision made in the earlier case of Baker V. Essex County Council

the uemntion [Para 6] Mr. Reuben, who appeared for Mr. Noble, put forward an attractive argument on construction. He said that although the Act of 1959 was a consolidation Act, the court should interpret section 44(1) of the Act of 1959 in the same way as if it formed part of a new Act. This was for two reasons. First, it was not simply a consolidation Act. It also contained amendments. Section 44(1) might therefore have been intended to amend the previous law by extending the duties of highway authorities from maintenance of the fabric to other forms of maintenance necessary to prevent the highway from being dangerous to the public. Secondly, even in the case of a pure consolidation Act, the courts should not delve into the antecedent legislation unless the obscurity of the statutory language made it necessary to do so. As Lord Wilberforce said in Farrell v. Alexander [1977]: "self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve" [Para 7] Mr. Reuben [counsel for Mr. Noble] said that there was no real ambiguity about section 44(1) read with the definition in s259 of the 1959 Act. If maintenance "includes" repair, it must also include something else. Thus, the concept must be wider than merely repairing the fabric of the highway. As a matter of ordinary language, "maintenance" is capable of including salting and gritting. No one would think it an odd use of language to say that the gritting lorries were used for highway maintenance. Furthermore, if one looks to the purpose of the Page 4 of 12 legislation, the reason why a highway authority is under a duty to maintain the highway is to ensure that it can be used with safety by members of the public. By 1959 it was recognised that this required the removal of snow and ice. Highway authorities had in practice been spreading salt and grit on the roads for a number of years. It would be anomalous if the highway authority had a duty to eliminate potholes but was not required to do anything about the more insidious hazards of black ice. Another anomaly would be the distinction between the duty of a highway authority in respect of the dangerous state of the highway and the liability of an adjoining owner in public nuisance for causing danger to persons on the highway. The latter would be far stricter: for example, in Slater v. Worthington's Cash Stores (1930) Ltd. [1941] a property owner was held liable for failing to remove snow from his roof, so that a minor avalanche injured a passer-by on the pavement. Baker v. Essex County Council [1977] Q.B. 441 [Para 8] My Lords, I have said that Mr. Reuben's argument was attractive and in Baker v. Essex County Council [1977] it was accepted in principle by the majority... in the Court of Appeal. It was however rejected by Lord Denning M.R. In a judgment written at the age of 78 which, if I may say so with respect, displays to the full his formidable learning and powers of analysis and lucid exposition, he explained why, notwithstanding the definition, the liability to "maintain the highway" was concerned only with keeping the fabric in repair. The majority opinion was followed by the Court of Appeal in Cross v. Kirklees Metropolitan Borough Council [1998] and in the present case... My Lords, I will say at once that I find the judgment of Lord Denning M.R. completely convincing. Perhaps I really need to say no more. But out of respect for Mr. Reuben's argument I shall give my reasons in my own words. The context of the Act of 1959 [Para 9] My Lords, I quite accept that as a matter of ordinary speech, the "maintenance" of the highway is capable of including salting and gritting and the removal of ice and snow. On the other hand, the context in which the words appear may give them a narrower meaning. It seems to me quite impossible, in construing the Act of 1959, to shut one's eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of older highway law. The provisions of the 1959 Act itself invited reference to the earlier law and in some cases were unintelligible without them. [Para 10] Thus section 38(1) 1959 Act provided that thenceforth "no duty with respect to the maintenance of a highway shall lie on the inhabitants at large of any area." Section 38(2) 1959 Act provided that a highway which, immediately before the commencement of the Act, was maintainable by the inhabitants at large or maintainable by a highway authority, should be, for the purposes of the Act, a highway "maintainable at public expense" [Para 11] In order to understand these provisions, it is necessary to know that at common law the "inhabitants at large"2 of a parish were under a duty to keep its highways in repair. The 1959 Act was thus using "maintenance," in the defined sense, as equivalent to the previous duty of the inhabitants at large, which was to keep the highways in repair. The common law duty was enforceable by proceedings on indictment in the nature of a prosecution for