Highways: only a touch of frost

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1. This is the fourth and final article in a short series which focuses on case law which may assist in the defence of claims against Highways Authorities under s.41 of the Highways Act 1980.

2. In this article, and inspired at least in part by the wintery weather sweeping across the country, the focus is on snow and ice on the highway, and therefore section 41(1A) which provides as follows:

In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.

3. The words ‘in particular’ reflect the fact that subsection 1A was introduced as an amendment to the general duty under section 41(1) to maintain the highway following Goodes v East Sussex (2000) 1 WLR 1356. In Goodes, the House of Lords held that the removal of transient surface-lying material such as snow or ice did not fall within the concept of maintenance under the statute at all.

4. It is trite law that in a claim for breach of section 41(1), the Claimant must first establish that the highway was rendered dangerous by virtue of the relevant lack of maintenance. Inherent within the test of dangerousness is sufficient foresight of harm. As Lloyd LJ explained in James v Preseli Pembrokeshire DC (1993) PIQR P114:

In one sense, it is reasonably foreseeable that any defect in the highway, however slight, may cause an injury. But that is not the test of what is meant by “dangerous” in this context. It must be the sort of danger which an authority may reasonably be expected to guard against.

5. If the Claimant does prove that the highway was dangerous in this sense, the burden shifts to the Authority to establish that it took reasonable care to secure that the relevant section of highway was safe, applying the factors set out in the statutory defence under section 58 of the Act. Those factors will include matters such as the knowledge of the highway authority of the danger before it occurred.

6. Section 41(1A) operates differently, insofar as the defence is integrated within the wording of the provision itself. The duty to take ‘reasonably practicable’ steps involves a balancing of factors (risk on the one side against time, cost and effort on the other) and the burden is on the Defendant to establish the Defence.

7. However, this raises the question of whether, before moving to the issue of reasonable practicability under section 41(1A), there is an anterior hurdle for Claimants to overcome in common with section 41(1). In other words, must the Claimant first establish that the passage along highway was not ‘safe’ and was ‘endangered’ applying a test similar to that set out in James v Preseli (above), or is the presence of any snow or ice which causes an accident sufficient?

8. In the only reported case (at High Court level) which considered the application of Section 41(1A), this particular issue did not arise for consideration on the facts. In Smithson v Lynn (2021) RTR P6 a car had skidded on ice on the carriageway and the road conditions were described by the police as ‘treacherous’. Accordingly, the argument instead focused on the proper application of the reasonable practicability defence.

9. However, it is submitted that, in an appropriate case, and in particular cases involving footways rather than carriageways, there is ample scope for the court to find that the mere presence of ice or snow does not, in and of itself, render passage of the highway unsafe so as to endanger pedestrians.

10. In Larner v British Steel (1993) 4 All ER 102, the Court of Appeal considered a claim for breach of section 29 of the Factories Act 1961. Section 29 provided that:

There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.

11. The court held that ‘safety’ was absolute and there was no requirement for the Claimant to prove that the relative defect (there, a crack in a piece of machinery) gave rise to a reasonably forseeable risk of injury.

12. Fast forward 18 years, and in Baker v Quantum Clothing (2011) 1 WLR 1003 the Supreme Court overruled the decision in Larner v British Steel. It held that safety is not an absolute concept and must therefore include an assessment of foreseeability. It preferred, instead, the line of authority culminating in Taylor v Coalite Oils & Chemicals (1967) 2 KIR 315:

A working place is ‘safe’ if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur… In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was ‘reasonably practicable’ to avert the danger.” (emphasis added)

13. Each of these cases was decided in a very different context, but point toward a clear requirement to consider safety/danger before moving on to the issue of reasonable practicability.

14. The cases decided under section 41(1) also demonstrate the reluctance of the courts to treat the duty to maintain the highway as an absolute one in real terms. Indeed, it was precisely this point which was explained by Laws LJ in Jones v Rhondda Cynon Taff CBC (2009) RTR 13:

Section 41 has been said to impose an absolute duty, but the term “absolute” in my opinion has with respect to be treated with care. There is a risk of it suggesting that the duty is to maintain the highway to such a standard as in effect to guarantee the safety of its users, and it is plain that that is by no means the measure of the duty; it is absolute only in the sense that it is not merely a duty to take reasonable care but to maintain the highway to an objective standard. The statute does not state what the standard is. The authorities, however, are as it seems to me clear as to the nature of this standard. The highway has to be maintained in such a state of repair that it is reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition.

15. Before Goodes v East Sussex was decided, the Courts heard a number of cases in which the presence of snow or ice on the road was considered under the broader duty to maintain under section 41. Certain dicta in those cases support the argument that the mere presence of snow or ice is unlikely to render the highway dangerous. For example, in Cross v Kirklees (1998) 1 All ER 564 MBC, Millett LJ stated:

A highway authority is not obliged to ensure that every footway in its area is free from overnight ice, either during the hours of darkness when there are likely to be few persons about or during the early morning before the rise in temperature causes the ice to melt. It is only if the highway authority allows snow or ice to persist for sufficient time that the general condition of the way can be properly be described as treacherous that any question of its failure to maintain the way can arise. (emphasis added)

16. All of this leads to the unreported decision of HHJ Melissa Clarke (DCJ in Oxford) in Rogers v Oxfordshire County Council (2017) in which the issue was considered expressly. On the last Saturday before Christmas, the Claimant was walking through the high street in the town of Thame in Oxfordshire. The area was busy with shoppers. The layout of the highway is somewhat unusual. The Carriageway splits into two on either side of the town hall, leaving what was described as a ‘spit of land’ given over to car parking, but bounded by pavement. The claimant crossed from one side of the high street to the other, across the central spit. It was his case that he stepped onto the pavement and slipped on a patch of untreated ice. It was common ground that the weather was cold and frosty. The Defendant had taken the decision to grit roadways in accordance with its winter maintenance policy, but it did not, as a matter of routine, pre-grit footways.

17. The Court accepted the Claimant’s evidence that he slipped on ice. However, the judge found that the ice did not render the highway dangerous within the meaning of the case law under section 41. After very careful analysis of all the evidence, the judge noted, in particular, that there was little evidence of any other pedestrians having difficulty traversing this section of pavement on the day, despite the significant volume of people using the high street. There had been no complaints about the condition of the pavements. The judge was also influenced by the fact that the accident occurred on the very edge of a relatively isolated section of pavement, when the claimant had been stepping up onto it. She noted that:

“The fact that there was, undoubtedly, some ice upon which the claimant slipped does not tell me what the state of the footpath was for those pedestrians proceeding along it in the usual way. Of course, it is reasonably forseeable that people might cross the road otherwise than at a crossing point – we have no laws against jaywalking in this country – but it must be the case that the danger posed by ice or snow at a designated crossing point or lying extensively upon the central, more highly used portion of a pathway is greater than that at the very edges of the pavement away from the crossing point. Accordingly, the position and extent of the ice is a significant factor in determining dangerousness. In fact, this point was also made in Jones v Rhondda where in that case a significant erosion at the very edge of a lightly used dead-end path leading nowhere in particular was held not to be a breach of section 41, whereas the same depression of the main section of a path, or a path more heavily used, would have been.

Although it might be reasonably forseeable that any scrap of ice, no matter how small, might cause an injury, this is not the test as Jones v Rhondda makes clear. I cannot find, in the absence of reliable evidence about the position and extent of such ice, that the danger posed by the ice upon which the Claimant slide and fell was that which the Defendant might reasonably be expected to guard against.”

18. It remains to be seen whether this approach commends itself to the higher courts.

Featured Counsel

Jack Harding

Call 2004

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