Winter's not far away. As the mornings and evenings get darker and the days get colder, the roads become increasingly more dangerous. Icy roads are a road users worst fear. During the winter months, the roads can be unsafe, but as a road user, we would expect the local authorities to ensure safe passage as best as possible.
Numerous potential claims have been unsuccessful against local authorities for failing to keep the roads safe from ice or snow. Countless people have left the court room empty handed. However, in a recent English case this position changed when a local authority was found two-thirds liable for a road traffic incident.
Michael Smithson v Bradley Lynn, North Yorkshire County Council [2020] EWHC 2517 QB
ROAD TRAFFIC INCIDENT DETAILS
Early one morning on 22 November 2015, the claimant was a passenger in a motor vehicle which hit a tree when its driver lost control of the vehicle, travelling at 50mph, after coming into contact with ice on the road.
The passenger brought a claim against the driver of the car (first defendant) after sustaining a catastrophic brain injury. He alleged the first defendant had been travelling too quickly and had failed to maintain adequate control of his vehicle.
The first defendant thereafter blamed North Yorkshire County Council (second defendant) for failing to prevent the formation of ice on the road. The first defendant settled matters with the claimant, so the action proceeded on contribution proceedings under s.1(1) of the Civil Liability (contribution) Act 1978, between the first and second defendant.
During the evening and at night on 21 November 2015, there had been four other incidents either near or at the incident location. Following two of the incidents, police requested the road to be gritted, yet the second defendants refused the request. The police erected ‘police slow’ signs at the bend to warn road users of the potential danger.
The claimant’s claim against the second defendant was that they should be liable under s.41 of the Highways Act 1980, for a failure to ensure the highway was not endangered by snow or ice.
The second defendant’s argument was that their ‘Winter Service Manual’ represented a reasonable policy, that being the requirement for exceptional circumstances before ad hoc gritting would be carried out.
In court, employees of the second defendants were asked for examples of ‘exceptional circumstances’, and they said the following: an emergency vehicle being unable to reach the scene of an incident; an emergency vehicle being unable to reach the home of a patient requiring urgent treatment; and the road being blocked by a vehicle and a recovery truck being unable to reach it. Their reasoning behind not sending the gritters out was based on the fact none of the ‘exceptional circumstances’ had been met.
The court accepted it was reasonable to have a system of prioritisation for treatment of highways for ice, as it allows local authorities to have a balance between the ‘quantum of risk,’ that is the likelihood and severity of an incident occurring against the cost of preventing or reducing it. However, the court also said that when the police officers had made the two phone calls regarding the same stretch of road and reporting several incidents and describing the incidents as ‘treacherous’, this should have also been seen as an exceptional circumstance.
The second defendants argued the police had reported the wrong site for some of the previous incidents and therefore the second defendants were not fully aware of all the incidents nor indeed their exact locations.
The second defendants further argued that if any fault should lie with them, there ought to be an apportionment as the first defendant had been travelling too fast. The first defendant had been approaching a bend, which was heralded by a ‘police slow’ sign. It was said that if he had been travelling at 30mph, then applied his brakes, that serious nature of the incident could have been avoided.
CAUSATION
The second defendants tried to argue a point on causation. They argued that even if a gritter had been sent out on 21 November 2015, given that the police had incorrectly reported the site of the previous incidents to them, they would not have gritted the stretch of the road which was the subject of the claim and the incident would not have been avoided. Ultimately, this argument failed on the facts.
BURDEN OF PROOF
The second defendants argued that the burden of proof always rests with the claimants, but the court held the burden of proof rested on the second defendants to prove they had taken reasonably practicable measures to ensure that safe passage along the road would not be endangered by snow or ice.
DECISION
It was clear from the five incidents occurring, that the second defendants had failed in their duty.
There was no real evidence as to why they had failed to send a gritter out on the night of 21 November 2015. They had failed in their duty under S.41 (1A) of the Highways Act 1980.
The court also held that the first defendant was somewhat liable for the incident. Due to the cold temperatures, he ought to have been driving cautiously and should have known that ice on the roads would be foreseeable. Although he was driving within the National Speed Limit, he ought to have taken notice of the ‘police slow’ sign, and therefore coming up to the bend, he should have reduced his speed.
The second defendants were held two thirds to blame for the incident and the first defendant was held one third to blame.
WHAT DOES THIS MEAN FOR SCOTTISH CLAIMS?
In Scotland, gritting cases regarding snow and ice are governed by s.34 of the Roads (Scotland) Act 1984. It states that a local authority shall take steps they consider reasonable to prevent snow and ice endangering safe passage on roads. However, what is considered ‘reasonable?’
All local authorities have their own winter maintenance policy. Each local authority has a hierarchy of gritting, and these are usually similar across the board. There are different categories which can roughly be broken down as follows: primary routes, secondary routes and other routes. Local authorities will focus on roads carrying the greatest amount of traffic. Each local authority will have a similar policy which will allow them to be excused for failing to grit certain routes at certain times, if the particular route is not seen as priority.
Each local authority will have a budget and will have a limited supply of grit, and therefore they must deploy their resources as they see fit, meaning that inevitably some routes will be treated ahead of others. Local authorities cannot be expected to grit every road and pavement in an area all at once when roads become icy. It is policy to follow a hierarchal system of gritting, therefore an innocent party might find themselves in a difficult position to bring forward a claim if they have fallen victim to icy roads on a route that is not considered ‘priority’.
It will be interesting to see if courts in Scotland will take a similar approach to that found in the above case. That is, be more sympathetic to road users who have been involved in an incident where there have been multiple incidents at or near an index incident location, and especially where police have made requests to the local authority to undertake spot gritting of individual roads.
There have been a number of notable Scottish cases where the local authorities have not been found liable for a failure to grit roads or pavements. Please see below.
- Ryder v The Highland Council [2013] CSOH 95
- Rainford v Aberdeenshire Council [2007] CSOH 127
- Taylor v Smith [2003] S.C.L.R. 926
- Syme v Scottish Borders Council [2003] S.L.T.601
- Grant v Lothian Regional Council [1988] S.L.T. 533
The reason for this is because the local authorities were following their winter maintenance programme and therefore the courts held their policies were ‘reasonable’ within the meaning of s.34 of the Roads (Scotland) Act 1984.
Corinne Skelton - Trainee Solicitor