UK: The Grit Has Run Out - A Defence To Highway Claims?

Last Updated: 9 February 2009
Article by John Goodman and Rosalind Bird

Section 41(1A) of the Highways Act 1980 provides that 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 and ice". There is therefore, in effect, a qualified duty to grit the highway network for which each authority is responsible.

So, the statutory duty to keep a safe passage on a highway may well be breached if grit is not applied but does this give rise to compensation in the event of an accident? In Stovin vWise (1996) the House of Lords made it clear liability in damages for breach of statutory duty is far from automatic and there has to be an examination of the policy of the statute to decide whether it was intended to confer a right to compensation. Given Parliament legislated specifically to reverse the decision in Goodes v East Sussex County Council (1999) and conferred a qualified duty on the highway authorities to grit, there can be little doubt it intended for a right of compensation to follow.

So can a highway authority take into account its resources? R v Gloucester County Council, ex parte Barry (1997) involved the provision of facilities to a disabled man where it was held the cost of providing those services had to be taken into account when looking at the reasonableness of doing so. It follows, therefore, that availability of grit and the financial investment required by a highway authority in order to provide sufficient quantities during the winter months is a relevant factor to take into account when considering both a breach of duty for failure to grit a road and the statutory defence under s58(1).

It is, however, a fine balance between the risk of injury to highway users (which has to be high in icy weather) and the cost of providing and storing the grit. The highway authority must approach the decision objectively and act reasonably. To succeed in defending a claim for breach of s41(1A), the highway authority will have to demonstrate the process by which it arrived at its decisions as to where to grit and how much grit was stored for use in bad weather and that those decisions were reasonable. The planning processes leading up to the winter months will have to be well documented and demonstrate the factors taken into account. It is likely to be considered reasonable to prioritise main roads over minor roads, but if grit runs out after only a short period of time there is a real risk of a court finding the highway authority failed to plan for a foreseeable risk of a prolonged period of inclement weather.

In summary, therefore, while a court will take into account the resources available to a highway authority, it will be down to the authority to demonstrate it acted reasonably Section 41(1A) of the Highways Act 1980 provides that 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 and ice". There is therefore, in effect, a qualified duty to grit the highway network for which each authority is responsible. in assessing the amount of grit to be kept in store for the winter months and then how it prioritised the use of that grit. Section 41(1A) is a relatively new piece of legislation and exactly how it is going to be interpreted by a court is still unclear but, in our view, there would have to be a prolonged period of adverse weather (combined with good evidence of a reasonable planning system) for authorities to have any realistic chance of using such a resource argument to defend a winter maintenance case.

And what of the duty of a school in icy weather?

There has been much recent media comment on the widespread closure of schools in response to the inclement weather. But does a school's duty to take reasonable care of its visitors, whether pupils, staff or parents, as well as employees, require such a drastic step?

Our short answer is that it is difficult to envisage any defence to a claim involving a slip on snow/ice failing because the judge concludes that the entire school should have been closed thus avoiding the accident. So long as schools have a reasonable system for dealing with such hazards, including clearing snow and gritting areas to which visitors and staff have access and giving appropriate warnings to staff and pupils and so on, courts are likely to be understanding.

Indeed, if there is any suggestion following an accident that the school should have been closed, claimants can usefully be referred to Section 1 Compensation Act 2006:

"A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against the risk or otherwise) have regard to whether a requirement to take those steps might –

  1. prevent desirable activity from being undertaken at all, to a particular extent or in a particular way, or
  2. discourage persons from undertaking functions in connection with a desirable activity"

It is also difficult to see the HSE mounting a credible argument that an entire school should be closed in these circumstances.

In short, if schools really have been closed for fear of compensation claims or of the long arm of the HSE - as opposed to staff shortage reasons - this does appear to have been a serious overreaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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