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Injury Law - Goodes - have we got it wrong?

By : George Pulman

George Pulman QC re-examines ice, roads and duties of Highway Authorities, from the Claimant's perspective considering potential causes of action.

The common misconception is that the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 said that a Highway Authority had no duty at all to put salt on roads. See, for example, the website of Trafford Council, "nor is it a matter of common law for the Council to grit roads". It seems that people are asserting that cars skidding on icy roads have no potential claim against Highway Authorities.

In my view, that is wrong. Negligence at common law was not excluded by the House of Lords in Goodes. It was not excluded because the point was not argued at all. It follows that claims in negligence could be successful if there has been negligence in failing to put down salt and this negligence caused the car to skid.

Mr Goodes skidded on an icy A class road at the bottom of a hill in the village of Mayfield, East Sussex. It was an accident that led to catastrophic injury and he is now in a wheel-chair. He sued the Council alleging two torts - negligence and breach of statutory duty. He abandoned negligence. He did not think that he could prove that the Highway Authority (East Sussex) had failed in their duty to take reasonable care. But he carried on with the claim for breach of statutory duty: breach of section 41(1) of the Highways Act 1980.

Section 41(1) is well known and requires the Highway Authority to "maintain" the highway. The issue for the House of Lords was whether "maintenance" involved preventing ice forming on the road. The Court of Appeal had decided that it did. The House of Lords reversed this decision. They decided that "maintenance of the highway" did not include an absolute duty to prevent ice forming on the highway. The relevant findings of fact were these:

  • the accident occurred at about 7:10 on 14th November 1991;
  • the gritting lorry would have reached the road on which the accident happened by 7:30am;
  • East Sussex followed the "Code of Good Practice" issued by the Association of County Councils which stated that salting should be completed by 7:30am before the morning rush hour.

The House of Lords considered the duty to maintain and the statutory duty only. They did not specifically exclude a duty in negligence, it was not considered and, since it had been abandoned, was not argued before them.

Interestingly, on the facts set out, a claim in negligence would almost certainly have failed since the Council was acting reasonably by complying with the Code of Good Practice. Mr Goodes simply had the misfortune to be out on the roads 20 minutes before rush hour was deemed to commence.

Despite the claimant's defeat in Goodes and the narrow definition of "maintain", the duty in negligence continues, and it may often be breached. In the right factual case a claimant may argue that the duty of care in negligence is wider than the narrow duty to maintain as set out in the Highways Act 1980 and defined by the House of Lords. Common law negligence could remain a duty upon which a claim for personal injury is founded.

Since the statutory duty to maintain is so narrow but seems to have led (in the light of the Trafford Council website) Highway Authorities to believe they have no duty to salt or grit at all, claims based on common law negligence may have a better prospect of success after Goodes than before the House of Lords' decision. However, despite the Goodes decision, Highway Authorities clearly continue to consider it is their duty to grit and salt roads and "Codes of Good Practice" continue to set out guidelines for its completion which a prudent claimant adviser will consult at an early stage.

Stovin v Wise [1996] AC 923 involved a collision at a junction where the sight lines were obscured by an obstruction on adjoining land. The House of Lords had to deal with the distinction between a statutory duty to carry and a statutory power to carry out work. They said that the absence of a statutory duty would normally exclude the existence of a common law duty of care; and the minimum pre-condition for basing a duty of care on a statutory power was first that it would be irrational not to exercise the power so that there was a public law duty to act; and second that there must be exceptional grounds for holding that public policy required compensation to be paid to injured persons.

It would be difficult for a Highway Authority successfully to argue that it should leave roads ungritted. The hazard presented by ice is extensive and covers all roads. The Highway Authorities have a system for gritting, a Code of Practice and a history of gritting. The potential injuries are serious. If ungritted roads become otherwise unusable for example the M11 during the recent winter icy patch. The common law test is merely what is reasonable. It is not a question of forcing the Highway Authority to clear every road.

But the distinction of power and duty remains unclear. Stovin v Wise was referred to in the House of Lords in Goodes but not cited in the speeches. In November the point is due to be argued before the House of Lords in Sandhar v DETR in the light of which the position should be clear.

Before commencing a claim in negligence there are several important points to note:

  1. some Highway Authorities are under the mistaken belief that they cannot be liable for claims for personal injury arising from a failure to de-ice their roads. They are wrong if the liability is for negligence not a breach of section 41(1) of the Highways Act 1980;
  2. liability under the Occupiers' Liability Act 1957 is also unaffected. This Act imposes a different duty and a different standard from the Highways Act 1980. The occupier of shops, offices, car parks and similar places have an obligation to take such care as is reasonable in all the circumstances for the safety of visitors. For example, a station car park is a place to which drivers are "invited" as are rail passengers and leaving it un-gritted on an icy night is a breach of the duty of the station owner or controller under the Occupiers' Liability Act 1957;
  3. the duty in negligence is the same as the duty under the Occupiers' Liability Act 1957. It is not that no slipping or skidding shall occur. It does require the people occupying the premises to:
    1. take account of weather forecasts
    2. to have salt in stock;
    3. to clear a safe path through the snow; and
    4. to put up warning notices or shut the premises if necessary. It is not a defence for a defendant to say that members of the public are invited onto premises but run their own risk of skidding on compacted snow that it was reasonable for the defendant to have cleared up;
  4. I am told that the present price of a sack of rock salt mined in Cheshire is £7.75 plus VAT delivered (5 sacks minimum). Given that a simple fracture of the leg will attract general damages for pain and suffering of more than £3,000 it will be difficult for a defendant to raise a defence on the basis that the cost of remedy is too high.

Judges may find negligence in some of the following circumstances:

  • where there is no system for spreading grit;
  • where, although there is a system for spreading grit, the actual spreading does not follow the system;
  • if the system itself is inadequate. For example, there is no consideration of weather forecasts or no salt in stock;
  • if other occupiers have gritted but the defendant has not;
  • if there are no tools for clearing snow and ice or spreading grit;
  • if a Highways Authority has failed to comply with the "Code of Good Practice" or its own local practice standards.

As always, the range of factual circumstances will be large, but the usual test of reasonable foreseeability of harm and an examination of the reasonable steps taken to remove the danger of ice will be a good guide when considering if a claimant has a potential case.

In conclusion, Goodes was solely concerned with the strict statutory duty to maintain as defined by section 41(1) of the Highways Act 1980. Since a duty to clear roads of ice and transient defects was not part of that duty to maintain, it is arguable that the duty to de-ice roads is governed by a common law duty of negligence.

It may also be possible to argue that a duty to de-ice falls on a Highway Authority due to its duty as occupier of certain premises.