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Snow and ice: is the highway 'endangered?'

Rogers v Oxfordshire County Council
Oxford County Court
1.3.17

Katrina Boyd reviews the evidence in this recent successful defence for Oxfordshire County Council,  focussing on the highway's duty under s.41 (1A) of the Highways Act 1980 to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. 

Facts

The Council was the relevant highway authority for Thame High Street.  About halfway along the street, the pavement split in two, and there was a spit of pavement in the middle of the roadway upon which the town hall was situated.   This pavement was used by pedestrians as a landing spot in crossing the High Street.  The claimant claimed that, as he mounted the pavement of that central section in December 2011, his leading foot slipped on untreated ice, and he fell sustaining personal injury.

Whilst the Council had taken steps to grit the roadways, including Thame High Street, in accordance with its Winter Maintenance Policy, it did not routinely grit or salt the footways.  The claimant alleged that the failure to grit the footway was causative of his accident and was a breach of the Council's statutory duty.

Findings

The judge, HHJ Clarke dismissed the claimant's claim:

  • the accident was indeed caused by the presence of ice on the pavement. 

  • Applying Jones v Rhondda Cynon Taff County Borough Council [2008] CA, the highway had to be maintained in such a state of repair that it was reasonably passable for the ordinary traffic of the neighbourhood without danger caused by its physical condition.  Further, applying James v Preseli Pembrokeshire District Council [1993], it was not enough to prove that there was ice:  Lloyd LJ: "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."

  • In making such a determination, the judge considered the evidence as to the extent of the ice, in the context of the type and manner of use of the pavement. 

  • Extent of the ice: the claimant's own evidence was inconsistent and unreliable as to the extent of the ice.  Indeed, he made almost no reference to the extent of ice in his witness statement, prepared 4 years post accident.  In oral evidence at trial, however, he sought to bring evidence that the area 'was like a sheet of glass' or 'like a sheet of ice', but the judge noted that this was the first time he had given such evidence, almost 5 years post accident.  His evidence was somewhat confused, referring to snow underfoot in oral evidence, reference to which had not appeared in his witness statement. At trial, the claimant also referred to children sliding on ice, further down the pavement. Again, the judge was unimpressed with the late introduction of this evidence, under cross examination, and noted that the claimant could give no detail as to what the children looked like, what they were wearing, or what they were doing on the day. Overall, the judge felt that she could not rely upon the claimant's evidence, as he had no reliable recollection.

  • Use: It was accepted that the High Street was busy with pedestrian traffic, it being the last Saturday before Christmas.  Indeed, the claimant's own witnesses confirmed that he was assisted as soon as he fell by passers-by, so the pedestrian traffic at the central section was also found to be very heavy.  The Council's witnesses confirmed that no other calls or complaints about the icy conditions had been received from members of the public.  The judge accepted the Council's evidence that no other accidents had been reported on that day, or the days either side of it. 

  • Location: Finally, the judge considered the location of the fall itself.  She noted that it was not a designated crossing point, or in the more central, more heavily used section and stated, "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 a crossing point."  Again, she placed heavy reliance upon Jones v Rhondda, where significant erosion at the very edge of a lightly used dead-end path leading nowhere was held not to be a breach of s.41, whereas the same depression on the main section of a path, or a path more heavily used, would have been.

  • Applying all of the above, the claimant had failed to establish, on the balance of probabilities, that his safe passage along the highway was endangered by snow and ice that presented a danger of a magnitude that the defendant might be reasonably expected to guard against.  The claimant's claim failed.

  • The judge did not consider the defendant's Winter Maintenance Policy.  The claimant had failed to prove the necessary elements to establish his claim, such that the burden of proof would pass to the defendant.

Comment

  • This judgment, albeit County Court, represents a new spin on the line of cases decided under s.41(1A) of the Highways Act 1980, which provides that "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".

  • Rather than focusing on the question of what is required to establish the defence of ‘reasonable practicability’ (the focus of  all the other reported cases) this case was concerned with the stage before that and the Claimant’s burden of proving that the highway was actually ‘endangered’ with snow or ice. In effect the court held that it is not enough simply to prove the existence of snow or ice; ‘endangered’ carries a higher test and the case law applicable to proving a breach under section 41 (i.e. failure to maintain the surface of the highway) can also be applied to snow and ice cases.

  • As there are currently no appellate or high court authorities on the correct approach to s.41 (1A), this County Court decision may be of assistance in these cases.

Contact

For further information please contact Katrina Boyd on 020 7645 9620 or at katrina.boyd@dwf.law

 

 

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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