Michael Rawlinson QC comments on the first reported judgement to deal in detail with the application of s41(1A) Highways Act 1980

Summary

This judgment of HHJ Gosnell[1], sitting as a Judge of the High Court, is the first one reported in which four specific aspects of the structure of s41(1A) Highways Act 1980 (containing the responsibility of the Highway Authority (“HA”) for dangers created by ice/snow upon the road) are considered, namely:

• Where does the burden of proof lie in determining whether the HA has done all that is required of it under that provision?
• How far can a HA rely on the existence of a system of prioritisation of highways to justify refusing to treat a lower-priority road causing accidents?
• To what degree could resources be prayed-in-aid by a HA to exculpate its inaction in the face of specific complaint of danger from ice?
• To what degree could the HA discharge the duty placed upon it by s41(1A) to maintain highways to a certain standard, by relying on the failure of the police to exercise their power to close a road which they, the Police, considered sufficiently dangerous to merit making a call to the HA seeking treatment against ice?

In addition, a fifth more general issue was considered, namely how far can an otherwise culpable HA avoid liability by raising the causation argument that even if it can be shown that point A on the highway ought to have been treated, C cannot show that the specific part of the highway where the accident occurred should also have been treated?

I appeared for D1 having been instructed by Claire Dinoff, Partner at BLM LLP, Manchester on behalf of insurers,  DLG.

Factual background.

 In the early hours of 22.11.15 the First Defendant’s (“D1”) vehicle suddenly left the carriageway of Raskelf Road, a rural road, in North Yorkshire and struck an adjacent tree. As a result D1’s passenger, C, suffered a significant brain injury. C brought proceedings for damages against D1 alleging that the accident occurred because D1 was travelling too quickly and did not maintain adequate control. D1 denied liability. He stated that his vehicle left the road because of the presence of black ice and that the collision with the tree occurred without want of care on his part. In addition, D1 brought indemnity/contribution proceedings against the HA, North Yorkshire County Council (“D2”) pursuant to s1 Civil Liability (Contribution) Act 1978. D1 alleged that D2 had ignored two requests made by North Yorkshire Police (“NYP”) to treat the road: the first was made at 8pm and the second just after 11pm of 21.11.15. D1 alleged that two occasions NYP, when making the request, had informed D2 that ice on Raskelf Road had been the cause of an accident already. D2 admitted that it had been told only about 1 prior accident. D1 argued that D2’s refusal to treat the road in the light of the requests, amounted to a breach of s41(1A) 1980. In the light of D1’s pleadings, C added D2 into its action against D1.

D2 denied the breach. In doing so, it relied on its published ‘Winter Services Manual’ which placed treating Raskelf Road for ice into only the second order of priority. As such, it was not due to be treated until a time after the happening of C’s accident. Further, the information provided by NYP was not sufficient to require either a gritter or an inspector to be sent out especially for Raskelf Road. To do so, would place a strain on already tight resources. In short, the system they had was thought-through and not to be departed from unless ‘exceptional circumstances’ applied.

Whilst D1 acknowledged that the Winter Services Manual amounted to a reasonable written system save in one regard: whilst the Manual referred to the ability of D2 to undertake ad hoc treatment of the road, it neither set out what criterion was to be applied in deciding when to do so. This absence was relevant to the index accident since into that gap had emerged, through an unknown and unrecorded process undertaken by D2, a criterion of the need for proving ‘exceptional circumstances’ before such ad hoc treatment was permitted. In evidence, one of D2’s witnesses denied generally that a lack of resources was being relied upon but both of D2’s witnesses added that ad hoc treatment, or even ad hoc inspection of the highway, would cause administrative disorganisation which would amount to an extra burden on those resources.  It was not actively disputed that had D2 responded to either of the NYP requests then the road would have been treated in sufficient time as to render it unlikely that the accident would have occurred. D2 in addition argued that D1 should have spotted a prior ‘Police Slow’ sign and, having been driving for a number of hours prior to the accident,  should have known that ice was likely to be a problem generally in the area.

Prior to trial, D1 settled with C. D1 agreed to pay £x in damages and costs. At the same time C agreed a ‘drop hands’ with D2. This left the sole issue at trial being whether D1 was entitled to an indemnity/contribution from D2 in respect of £x and, if the latter, to what degree?

Legal Background

The duty of a HA to maintain the integrity of the highway is now contained at s41(1) Highways Act 1980 and on its face is absolute in its terms:

“41(1)  “..the highway authority for a highway maintainable at the public expense are under a duty…to maintain the highway”

However, s41 must be read in conjunction with s58 HA 80 which states,

“(1)  In an action against a highway authority in respect of damage resulting from their failure to maintain a highway… it is a defence.. to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”

The relationship between the two sections was effectively determined judicially by Diplock LJ in Griffiths v Liverpool Corporation [1967] 1 QB 374 (albeit in respect of the predecessor to the 1980 Act) namely that:

• Stage 1: the duty under (what is now) s41 is absolute. That does not mean that the highway must be perfect, it must simply be fit for the traffic which uses it at all seasons of the year without causing danger[2], but up to that standard, it must be maintained.
• Stage 2: s58 provides a ‘statutory excuse’ for having breached that standard in the context of a specific accident, namely that the HA had taken all care as was in the circumstances reasonable. This catered for the situation where, for example, I trip on a pothole (meaning that at the precise moment of doing so, the highway is self-evidently not in a maintained state) but it was in that state of disrepair only because (say) a section of the road had just suddenly collapsed.
• The burden of proving Stage 2 lay on the HA.

There was a further judicial gloss added to s41. Lord Hoffman in Goodes v East Sussex County Council [2000] UKHL 34 (@[7]) made it clear that resources could not constitute a defence to a breach of s41

“But the highway authority has an absolute duty to maintain the highway in a state which satisfies this objective standard. It must levy whatever rate is necessary for the purpose. If the condition of the highway falls short of the statutory stands, the highway authority is in breach of duty. It is no answer that it took all reasonable care or that its resources were insufficient”

There had, for a number of years prior to Goodes, existed a debate as to whether the duty under s41 extended to the removal of ice and snow which, after all, only lay over the surface of the highway without necessarily attacking the integrity of that surface. Goodes emphatically held that it did not. This led to the prompt statutory reversal of the ratio of Goodes (ie not necessarily all of the jurisprudence stated within it which went to support that ratio) by the passing of s41(1A) which stated:

“(1A)  In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice”

Note the ‘In particular’ which seems to suggest that 1A was simply a clarification by way of subset of the s41 duty and that carried with it the hint that the judicial gloss applicable to s41(1) would be equally applicable to s41(1A) eg in respect of where the burden of proof lay. Conversely, on the language of s41(1A) as it lay on the page, it was now unclear whether the duty on the HA to take ‘reasonably practicable’ steps delimited the scope of the duty to remove snow and ice? Put another way, did ‘reasonable practicability’ limit the absolute nature of the duty to remove snow and ice when compared to the duty to keep the highway in repair (and thus remain a matter for C to prove); or did ‘reasonable practicability’ remain a ‘step 2’ statutory excuse for not complying with a duty to remove ice which was coterminous with the width of the duty to keep the highway in repair? Upon resolution of that issue would rest where the burden of proof lay; to what degree resources could be taken into account and to what extent having an (allegedly) reasonable overall system of prioritisation of highways would amount to proof of ‘reasonable practicability’

The Judgment

HHJ Gosnell found both D1 and D2 in breach of their duty to C. He ordered a contribution of 2/3 £x to be made by D2 to D1. D1’s negligence was transient whereas that of D2 was more pervasive and systemic.

The structure of s41(1A) and the burden of proof

HHJ Gosnell was invited by D1 to consider the statutory history and applicability of the well understood phrase ‘so far as is reasonably practicable’ (s29 Factories Act 1961 as analysed in  Nimmo v Alexander Cowan & Sons; Edwards v National Coal Board and Baker v Quantum Clothing Group Ltd’). Consistent with how s41(1) had been interpreted it was accepted by the Court that s41(1A) recreated the two stage process of s41(1) in which:

• Stage 1: It was clear that on the night, the accident had occurred because of the presence of ice on the highway. This fact alone meant that safe passage had not been afforded to a road user.
• Stage 2: The next question was whether that unsafe passage arising from the presence of ice arose as a result of a failure to take all ‘reasonably practicable’ steps

Stage 2 was a separate stage and the burden of proof lay on HA.

What amounts to reasonable practicability?

In the light of Baker the HA was not required to take all steps falling short of the ‘grossly disproportionate’. However it was still necessary for the HA had to consider the matter by deciding where the balance lay between the ‘quantum of risk’ (ie the likelihood and severity of an adverse outcome) against the cost and inconvenience of ameliorating that risk [§§ 38-40; 54-56 of the Judgment]

On the one hand, the quantum of risk

The Judge found that, in combination, various departments of  D2 had been told of 2 prior accidents on the same (albeit apparently different areas of) road earlier in the same night as the index accident. It was clear therefore that the road was a danger with a foreseeable risk of further accidents between the time of the second request for ad hoc treatment (11 pm on 21.11.15) and the time when the road was due to be treated as a second priority highway at 7 am on 22.11.15 [§58]

On the other hand, the cost and inconvenience of ameliorating the risk

The Court accepted three propositions, the first two expressly and the final one by implication:

• it was entirely reasonable to have a system of prioritisation of highways for treatment for ice – the duty to treat did not extend to each mile of road [§62]
• further, it accepted that no system could be required to deal with every request for ad hoc treatment, which would lead to the break-down of any planned system and that differing weights could be applied to the source of the request ie greater weight could be placed on a request from emergency services etc; [§63] and that
• overall having a system which openly declared that the Winter Maintenance Policy would only be departed from in specified circumstances would not necessarily amount to a breach – depending on the criteria.

However he was critical of D2:

• (Because there was no written definition of ‘exceptional circumstances’) the definition operated in fact by the HA department was one in which they would only consider it triggered if access to the road was prevented by the presence of ice. Merely seeing that safe access was endangered by the road was not enough to trigger ‘exceptional circumstances’ so far as D2 was concerned. For this reason the report of actual collisions arising from the presence of ice on the evening prior to the index accident were not considered to trigger the need for action [§§25-26; 60-61]
• This amounted to both a ‘constricted’ interpretation of ‘exceptional circumstances’ (if this was the phrase D2 had chosen to operate on, and one they permitted to become a straight-jacket [§§61, 64-65]. The system should have been operated in such a way that great weight was put on a request from a police officer, who was likely to be making the request in order to prevent further harm from accidents [§66]
• There was no real evidence that a driver and gritter could not have been found to carry out the ad hoc treatment. Still less that an inspector could not have been despatched [§§59-60]

This amounted to breach on the part of D2. It follows from the above that the Judge did not believe that D2 could extricate itself from its breach by relying on the police to close the road rather than taking steps to comply with its own duty.

Causation

The Judge rejected D2’s argument that even if they had carried out ad hoc gritting on the parts of Raskelf Road about which the prior requests had been made, these were different to the areas where the accident took place both on the facts and the law. The finding of fact was interesting: had D2 carried out its duty it would have spoken to the police making the request and it would have emerged that there were other areas (including the index area) which required attention and, in any event, that would have been the finding of any inspector despatched to the road generally. Of wider interest is that he also rejected the argument as a matter of law. In doing so he relied on the dictum of Diplock LJ in Griffiths

“Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident”

[1] Designated Civil Judge for Leeds and North Yorkshire, Bradford and West Yorkshire.

[2] This formulation, first assayed by Diplock LJ in Burnside v Emerson [1968] 1 WLR 1490 @ 1497, was approved by Lord Hoffmann in Goodes v East Sussex County Council [2000] 1 WLR 1356 @ [7]