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Personal injury and s.41(1A) Highways Act 1980

Risk iStock 000011484783XSmall 146x219Andrew Clarke examines a ruling that a defendant highway authority was not liable for a claimant’s fall caused by ice on a footway which had not been treated.

In Brenda White v Nottinghamshire County Council – Nottingham County Court, HHJ Owen QC 19 April 2017 the claimant was injured when she slipped as a result of ice on the pavement. The claimant alleged breach of section 41(1)(A) of the Highways Act 1980 (‘the Act’) on the basis that the footway had not been gritted. The council defended the claim on the basis that it had complied with its Winter Service Operational Plan (WSOP). The WSOP provided that first priority footways were only gritted when the temperature had been below zero degrees centigrade for a period of 24 hours. On the basis of the weather forecast information received by the council, the temperature was not predicted to be below zero for this period. Accordingly, whilst the carriageway had been gritted, no steps had been taken to grit the footway.

Judgment

The claim was dismissed. The accident had been caused by the presence of ice and accordingly the burden shifted to the council to establish that it had ensured “so far as reasonably practicable” that safe passage along the highway was not endangered by snow and ice. As it was the council’s policy that the footway was not gritted in these weather conditions, the council had to prove that it was not reasonably practicable to do so; in effect, the council had to justify its WSOP.

The judge held that the WSOP had an appropriate method to it and it was rational. The plan proceeded on the basis of historically proven and reliable weather data. A decision had been taken not to divert resources away from usual highway work to grit the footway in circumstances where temperatures were predicted to rise. This decision was not unreasonable and it was therefore not reasonably practicable for the accident locus to have been treated. The claimant argued that provision of salt bins would have made a difference. The judge rejected this contention on the basis that there was no evidence to indicate that it would have made a difference and further that it was not something that was required for the council to make out its defence of reasonable practicability.

Comment

This is another welcome reminder that the duty of highway authorities in relation to snow and ice is one of reasonable practicability and is not the absolute duty provided for in respect of the fabric of the highway (under section 41 of the Act).  Again, the key to the successful defence was found in adherence to a cogent WSOP that is founded on a risk-based approach and decision-making that can be supported and evidenced by someone with the requisite experience. The judge also highlighted the requirement of pedestrians to take reasonable care. The presence of cold weather, and its consequences and risks in terms of snow and ice on the highway, are obvious and pedestrians need to take appropriate care.

Andrew Clarke is a partner at Weightmans. He can be contacted on 0116 261 6421 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.

Weightmans’ Local Government team acted for the county council in this case.

 

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