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Case Law update: Highways

Slip on snow & ice – gritting programme – s.41(1A) Highways Act 1980

Morris v Surrey County Council -17.6.13 - Kingston upon Thames County Court

A pleasing result for one Local Authority client last month in respect of a winter maintenance claim.

Facts: Mrs Morris slipped on ice on the carriageway of a main road in Surrey during the severe snow and ice conditions in February 2010. There was claimed to be no evidence of any gritting having taken place along the road despite it being a major route into town and an independent witness gave evidence to that fact.

The defendant highway authority denied liability on the basis that, in fact, despite the national shortages of salt at that time, they had in place a gritting programme operating 24 hours a day throughout the adverse weather period, and had gritted the area a matter of hours before the incident. The defendant's witnesses gave evidence to the fact the gritting product used is designed to disperse the snow and does not leave any noticeable trace.

Findings: The defendant's evidence on this point was accepted. It followed that the claim was dismissed on the basis that the defendant highway authority had done all they reasonably could to ensure the highway was not endangered by snow or ice fulfilling the duty under s.41(1A) Highways Act 1980.

Potholes – tripping claim – ss.41 & 58 Highways Act 1980

Powell v Surrey County Council – 11.4.13 - Guildford County Court

A further success for the same Local Authority in this multi-track highways tripping case.

Facts: Mrs Powell tripped on a pothole in the carriageway which was situated alongside, but crucially not upon, a designated pedestrian crossing. The claimant admitted that she had strayed from the designated crossing when crossing the road but claimed the defendant highway authority were liable on the basis the defect exceeded the defendant's own intervention levels as set out in their Highway Inspection Policy and had been missed on an inspection of the location one month before.

The defendant highway authority denied that the defect constituted a breach of s.41 of the Highways Act 1980 and, in the alternative, relied upon a defence under s.58 of that Act.

Findings: HHJ Simpkiss sitting in Guildford County Court held that the defect, being 3 metres from the edge of the crossing, was a sufficient distance from that crossing such that carriageway intervention levels applied but that, on balance, it was likely the defect was of sufficient depth to exceed even those intervention levels as at the date of accident. Despite that fact, the judge concluded that, taking into account the absence of any sharp or vertical edges around the defect, no breach of s.41 Highways Act 1980 had occurred. The judge went on to say that, had it been necessary for him to consider further the question of a s.58 defence, this was made out. The judge readily accepted that defects of significant depth easily appear within a matter of days and accepted the highway inspector's evidence that no actionable defect was present during his inspection a matter of weeks prior to the accident.

Tripping accident – kerb rutting – ss.41 & 58 Highways Act 1980

Simson v Islington Council – 16.7.13 – High Court (Admin)

In this recent case, the test of reasonableness reached a new level. One wonders if this can have been intended by those who drafted the statutory defence.

Circumstances: On 19 April 2009, Miss Simson was returning home from shopping walking along Hargrave Road in Islington. As she crossed from one side of the road to the other, she tripped on a defective part of the tarmac road just before the kerbstone of the pavement and fell, sustaining injury.

The accident occurred in a residential parking bay.

Islington denied liability for the following reasons:

  1. The claimant’s evidence was inconsistent, both on date of accident and location of it.

  2. On paper, the defendant had a s.58 Defence, the Highway Inspector was adamant that had he seen the defect referred to, he would have raised a repair order.

  3. Hargrave Road is a heavily trafficked residential road and was described by the claimant as often being “bumper to bumper”. The defect was under a car, the defendant’s Highway Inspector could not possibly have seen it.

  4. During the joint site meeting, the claimant identified a completely different area from where she subsequently said her accident occurred.

The Trial: Clerkenwell and Shoreditch County Court - At first instance Judge Bowdery QC accepted the claimant’s version of events given at trial.

He also accepted that the claimant’s accident occurred on the kerb side of the parking bay, despite the evidence of two key Islington witnesses who attended the joint site inspection and who said the defect the claimant pointed to on that occasion was on the carriageway side of the parking bay. He referred to a “Form A” which is completed by the attending inspector during the site inspection which was not signed by the claimant. She subsequently said at Trial that this was because she did not agree with the measurement and locus of the defect.

Although impressed with the Highway Inspectors’ evidence, he concluded that they should have seen the defect.  He accepted that when they inspect the highway they would at a 4-5 car interval enter the carriageway by going between the parked cars. They should therefore have noticed the “rutting” in the carriageway side of the parking bay and this would have led to further investigation and discovery of the defect.

The Appeal: Mr Justice Lewis, High Court, 16 July 2013 - The defendant appealed on two bases:

  1. Findings of fact: the judge should not have preferred the claimant’s evidence.  

  2. The defendant sought permission to appeal the trial judge’s finding that the defendant failed to establish that it had taken reasonable steps to secure the safety of that part of the highway. The defendant argued that the Recorder set the standard too high under s.58 which provides a defence if the defendant took “reasonable steps”.

 Mr Justice Lewis made the following key findings:

  • The trial judge had done enough in simply accepting what the claimant said at trial. He had observed her and found her to be an honest, truthful and a credible witness. He accepted the defendant’s argument with regards to the Form A and found that the forensic interpretation placed on it was justified.

  • With regard to s.58, Mr Justice Lewis did not accept that the defect would have to be in some way physically connected to the tripping defect to put the inspector on notice, and the fact that there was a defect on one side of the parking bay ought to have alerted the inspector. He found that there was significant “rutting” within the parking bay and that it required a closer inspection. He was of the view that it was not setting too high a standard for the inspector to require the vehicle to be removed and the area properly examined.

The judge on appeal was careful to stress that context was everything, and the decision would always depend on the particular circumstances.

Comment: This decision was hard on the defendant. The trial judge placed a high duty on the defendant, expecting one defect to lead to discovery of another, perhaps by making checks which would be very difficult to make. Interestingly, the judge at first instance accepted that had the highway inspector got on his hands and knees the defect would not have been visible. One might think that the defendant had been reasonable, which is the standard required under s.58. Defendants should be prepared to argue along the lines of James v Preseli [1993] P.I.Q.R.p114 – the specific defect complained of should be considered, not the state of the road as a whole.


For more information contacts:

Caroline Sanders, Senior Solicitor on +44 (0)20 7645 9615

Hazel James, Associate on +44 (0)20 7645 9514

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.