The Big Freeze: Winter Maintenance Claims And The Legal Liabilities Facing Local Authorities

Following the chaos triggered by the largest snowfall we have seen for years, there has been some criticism of Local Authorities in how they have dealt with the snow and ice. It has also been widely reported that the heavy snow and icy conditions has already caused a dramatic jump in the number of winter maintenance claims.

Local authorities and their insurers need to be aware of the legal background to highways claims involving transient defects such as snow and ice and the duties owed, in order to consider the best tactics for defending these claims.

The good news for local authorities and their insurers is that there is no claim in common law negligence against a highway authority for failure to maintain the highway or to keep it free from snow and ice. However, there is a duty upon a Local Authority to maintain highways maintainable at public expense which falls under section 41(1) of the Highways Act 1980. What has been less clear is whether ‘maintain’ included an obligation to clear transient dangers such as snow and ice.

 

The starting point was the well known leading case of Goodes v East Sussex County Council (2000) where Lord Hoffman stated that a duty to keep the highway free of ice would mean that the highway authority, unavoidably but periodically, would be in breach of duty. Lord Hoffman concluded that the duty under s41 was restricted to the maintenance of the fabric of the highways and the taking of measures to prevent deterioration. He said that this does not include a duty to prevent the formation of ice or remove the accumulation of snow on the road. In that case the highway authority were not in breach of its statutory duty and were not liable for the claimant’s accident.

 

During the winter of 2002/2003 ice and snow caused major problems on motorways and roads across the country. This prompted questions in the House of Commons and as a result section 41 of the Highways Act was amended to expressly include snow and ice as part of the statutory duty to maintain the highway. Section 41(1A) of the 1980 Act was introduced in 2003 which states, “In particular, a highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”

 

Section 41 (1A) has yet to be considered at appeal level, although it was considered in Swansea County Court in Pace v Swansea County Council (2007). In that case the Claimant complained that the “Defendant had caused or permitted ice to be on the road” in breach of section 41(1A) of the Act, and thereby caused her car to skid and crash. The Court found that the icy patches had caused the vehicle to slip. However, the Defendant Council provided evidence of a reasonable system of gritting which had been carried out in accordance with its Winter Maintenance Plan, following a weather forecast which had warned of below-freezing road surface temperatures. (The Court held that this evidence was sufficient to discharge the burden on the Defendant to do all that was reasonably practicable to keep the road free from ice.)

The defence to claims arising out of snow and ice is for the Local Authority to show they had a reasonable and practicable system in place to meet the risk. It is not for the Claimant to establish that measures were insufficient or delayed. The burden of proving there were appropriate systems in place is on the Defendant and will require careful evidence to ensure the defence is made out.

 

There is no doubt that Local Authorities are going to face increasing winter maintenance claims in the near future and they will have to discharge the burden of proving it was not reasonably practicable to keep that particular highway clear of snow and ice. To succeed in defending such claims, the highway authority will have to provide evidence of the planning processes leading up to the winter months and the factors taken into account in the decision making. Local Authorities will also need to gather evidence about the weather conditions, the extent of forewarning of the weather conditions, their winter safety policy, the gritting/salting programme intended to be implemented and records of the gritting undertaken. It is likely to be considered reasonable to prioritise main roads over minor roads. However if grit ran out after only a short period of time there is a real risk of a Court finding the highway authority failed to plan for the prolonged cold spells.

 

It will also be necessary to obtain a statement from an appropriate senior officer explaining the policies in place and comparing these to the code of practice. This statement should deal with budgetary matters and the hierarchy for gritting procedures. The statement should also have regard to the usage of that particular highway, the nature of the traffic and where it came in the hierarchy of importance.

 

Exactly how section 41 (1A) is going to be interpreted by the Court is still unclear. However comprehensive evidence of a reasonable planning system and well documented policies and procedures should provide local authorities with a strong prospects of defending winter maintenance claims. It is important that Local Authorities collate this information and evidence now giving them an early advantage in refuting these claims.

 

Caroline Elson is a Solicitor in the Public Sector Unit at Langleys