Road traffic accident update

On an early spring morning, Mr Fordyce was driving his colleague to work in Devon when the car he was driving skidded on a patch of black ice. The vehicle ran into a wall and the passenger, Mr Smith, sustained a severe brain injury.

At trial it was found that Mr Fordyce had not been driving at an excessive speed and the presence of the patch of ice could not reasonably have been foreseen and the claim failed.

The Court of Appeal (Smith v Fordyce[2013] EWCA Civ 320) upheld the judge’s finding that the accident had occurred without any negligence on the part of the driver.

“To say that a careful driver may be capable of driving on a dangerous road surface without an accident is one thing. To say that a person who suffers an accident because of the dangerous conditions of the road was therefore axiomatically careless is another.

“It does not follow as a matter of logic or human experience. If there is invisible ice on a pavement, the fact that only one pedestrian among a number had the misfortune to slip on it would not mean that the pedestrian who slipped was therefore to blame,” observed Lord Justice Toulson.

Liabilities of local authorities

What liabilities do local authorities bear in relation to the presence of snow and ice upon the nation’s highways? Historically the duty to maintain a highway passing through any district fell upon the inhabitants of that area.

Such a duty having been imposed, it would have been too burdensome to impose civil liability in respect of a failure to maintain the highway and so at common law there was no duty upon the inhabitants of an area in respect of the removal of snow and ice from the highways passing through the area in question.

In modern times, the duty to repair the highway was passed to Highway Authorities by legislation. These statutory provisions were consolidated in the Highways Act 1980, section 41 of which imposes the familiar, absolute duty on the Highway Authority to maintain the highway, a breach of which gives rise to a private law claim for damages.

Snow and ice

In Goodes v East Sussex County Council [2000] 1 WLR 1356, the House of Lords held that a Highway Authority owed no duty under section 41 to remove snow and ice which had accumulated on the highway.

Approving the dissenting judgment of Lord Denning M.R. in Haydon v Kent [1978] Q.B. 343 (CA), Lord Hoffmann held that section 41 imposed an absolute duty to maintain the highway, but as the duty was the same as the common law duty, it extended only to maintaining the fabric of the highway and not the removal of transient hazards such as snow and ice.

In October 2003, the ruling in Goodes was modified by a statutory amendment to the Highways Act whereby a new section 41(1A) was introduced imposing a duty on a Highway Authority to ensure that, so far as is reasonably practicable, safe passage along a highway is not endangered by snow and ice.

In Scotland the Roads (Scotland) Act 1984 section 34 provides that a roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads. In Scotland, unlike England and Wales, there is also potential common law liability on road authorities in respect of their discharge of their duties pursuant to section 34 of the 1984 Act.

Scotland

In Ryder v Highland Council (2013) SLT 847, a 36 year-old woman was driving on the A99 road between John O’Groats and Wick at a time just before 6am when she encountered a patch of ice. The vehicle left the road and the motorist was killed.

She had been exercising reasonable care but had simply lost control of the vehicle because of the presence of the ice. The local authority did not grit roads between the hours of 9pm and 6am, and a decision had been taken the previous day not to apply any preventative gritting based on weather data and data from some road sensors in the region.

An action brought against the road authority alleging negligence in failing to apply preventative gritting and in having a policy whereby no gritting was carried out during the early hours, failed. On the information available to the road authority the decision whether to apply preventative gritting had been a marginal one and the trial judge found that it fell within the ambit of a reasonable range of decisions for a road authority.

Furthermore he found that the attack on the policy of the council was not justiciable but even if it was the policy was not negligent because it was similar to the policies of a number of other Scottish road authorities. In Scotland, many other attempts to bring private law actions for damages based on criticisms of road authorities’ winter highway policies have failed. It seems that only actions based upon the negligent execution of such policies have succeeded in Scotland.

England and Wales

In England and Wales, even though a decade has passed since the amendment which introduced the duty under section 41(1A) of the Highways Act 1980, only very few successful actions have been brought and the interpretation of the new provision has not been tested by the higher courts.

In Rockliffe v Liverpool City Council (2013, unreported) Judge Gore QC found that the claimant had slipped on an exclusively pedestrian thoroughfare in icy and slippery conditions, which were known to the local authority. The Highway Authority’s policy was only to grit pedestrian areas if there was snow present. There was manpower available to undertake salting operations and a plentiful supply of grit and salt but the defendant’s own policy was contrary to the Department of Transport’s Code of Practice for the clearing of snow and ice and so the defendant was in breach of section 41(1A) of the 1980 Act.

Careful judgement required

Careful judgement should be exercised in selecting winter highway cases. In order to bring a successful action for a breach of section 41(1A) of the 1980 Act, solicitors will need to look for a number of features including:

• the relevant weather forecast
• the nature and character of the highway in question – the standard applicable to a busy route will be different to a quiet location
• the time of day of the accident ( the later in the day the more opportunity there will have been to grit the highway )
• whether there is any evidence of the application of grit
• whether the highway authority’s policy is in line with the Department of Transport policy.

If defendants can demonstrate a robust policy for the treatment of winter conditions and can provide evidence that the policy was properly executed it would be unlikely that liability would attach. SJ

 

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Roger Cooper is a barrister at Parklane Plowden

www.parklaneplowden.co.uk