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Local authorities on thin ice this winter: contribution claims, the burden of proof and availability of causation defence in HA 1980, section 41(1A) claims

In Smithson v Lynn v North Yorkshire County Council [2020] EWHC 2517 (QB) a driver succeeded in a contribution claim against a local authority for breach of statutory duty under section 41(1A) of the Highways Act 1980 (i.e. the duty to “ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice”). HHJ Gosnell found the highway authority predominantly responsible for an accident in which the First Defendant lost control of his car when it skidded on an icy country road. Of particular note were the judge’s findings that the burden of proof in a section 41(1A) claim lay on the highway authority to show that it had taken reasonably practicable measures to ensure passage along the road was not endangered by snow or ice; and that a causation defence was not available as a matter of law to a highway authority found in breach of section 41(1A).

The Facts

The Claimant was a passenger in a car driven by the First Defendant. In the early hours of the morning the driver lost control of the vehicle on a country lane when it came into contact with ice on the road. The car hit a tree and the Claimant sustained a catastrophic brain injury.

It transpired that on the evening before the index accident there had been five incidents relating to icy conditions on the same road. The index accident had been the last in this sequence. Police officers had described the road conditions as “treacherous”. It further transpired that the Highway Authority had received two separate requests from police officers by 11pm that evening to urgently grit the road in question. The Highway Authority refused these requests. It was not in dispute that weather forecasts had predicted that temperatures would drop 5 degrees below minus overnight.  The Highway Authority’s Duty Manager had refused these requests for ad hoc gritting on the basis that in accordance with their Winter Services Manual only Priority One (P1) routes would be gritted in the evening. Priority 2 routes (of which the road in question was one) were not to be gritted until the following morning after 6am, once the salting of the P1 routes had been completed. The Second Defendant’s Winter Services Manual did make provision for ad hoc gritting requests to be considered, but the Second Defendant maintained that their (undocumented) ‘exceptional circumstances’ test was not met in the particular circumstances.

The driver denied that he had driven negligently. He blamed the accident on the Second Defendant for failing to prevent the formation of ice on the road and issued Part 20 proceedings against it for an indemnity/contribution. The Claimant in turn added the Second Defendant to the claim.

Shortly before trial the First Defendant reached a settlement with the Claimant and so the trial proceeded solely on the issue of whether the First Defendant was entitled to an indemnity or a contribution from the Second Defendant.

The Law: The Highways Act 1980

“41.—  Duty to maintain highways maintainable at public expense.

(1)  The highway authority … are under a duty…to maintain the highway.

(1A) 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”

S58 states “(1) In an action against a highway authority in respect of …their failure to maintain a highway… it is a defence …to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic”.

In the instant case it was agreed that section 58 had no application in a claim made under section 41(1A) because that section contains its own limitation in terms of reasonable practicability.

JUDGMENT

Burden of Proof

The Court held that the burden rested on the Second Defendant Highway Authority to prove that it had taken reasonably practicable measures to ensure that safe passage along the highway was not endangered by snow or ice under s41(1A).

This means once it has been established on the evidence that safe passage was endangered by snow or ice, the burden moves to the highway authority to prove that its acts or omissions were ‘reasonably practicable’. The burden does not remain with party alleging breach of section 41(1A).

The Second Defendant argued that the burden was on the First Defendant in that the failure to do what was reasonably practicable is part of what the Claimant has to prove, as set out within the definition of the duty, in order to justify a finding of breach. It was submitted that highways cases are different to employer’s liability cases where the burden is placed squarely on the defendant to prove they have acted with reasonable practicability by statute, for example in section 40 of the Health & Safety at Work Act 1974.

However, the judge preferred the submissions of the First Defendant and the analogy with employer’s liability legislation. He agreed that as the same phrasing (“reasonable practicability”) had been used it was meant to have the same effect under the Highways Act 1980, i.e. that of placing the burden on the defendant of pleading and proving that it had taken all reasonable practicable steps to satisfy the duty.

The judge held that some support for this proposition could also be found within the Highways Act itself, in particular the section 58 Defence to section 41(1) claims:

Para 40: “This principle finds echoes in the Highways Act 1980 . Section 41 (1) places an onerous burden on a Highway Authority to maintain the highway. Section 58 of the same Act provides a statutory defence, however, if the highway authority can show that it has taken such care as in all the circumstances is reasonably required. The burden of proving the statutory defence is however on the Defendant. In a case involving ice on the highway section 58 has no application because the limitation of the duty in terms of reasonable practicability is set out within section 41 (1A) . In my view, the same principle should therefore apply and the burden of proving the highway authority has in fact acted in accordance with the standard of reasonable practicability rests with the Defendant, in this case the Second Defendant.”

Causation

The Second Defendant argued that even if a gritter had been sent out that evening, given that the police had incorrectly reported the site of the previous accidents to the Second Defendant, it would not have gritted the stretch of the road which was the subject of the claim and the accident would not have been avoided. Ultimately, this argument failed on the facts. However, the Court also ruled that the Second Defendant was not entitled to raise this causation point in law. Reference was made to the case of Wilkinson v City of York Council [2011] EWCA Civ 207, and to Lord Justice Coulson’s citing of Griffiths v Liverpool Corporation:

“Unless the highway authority proves that it did take reasonable care the statutory defence under sub-section (2) is not available to it. Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident.”

Interestingly, HHJ Gosnell again argued by analogy with section 41(1) and section 58 of the Highways Act 1980. Whilst the instant case concerned section 41(1A) rather than s41(1), he held that the court could apply the same logic.

Comment: These findings have significant implications for local authorities and motor insurers (as discussed below) as they plainly make the defence of section 41(1A) claims more onerous. It will be very interesting to see if any appeal is mounted by the Second Defendant on these points of law.

Apportionment

The Court found that the First Defendant driver, although driving within the speed limit, should have reduced his speed to less than 50mph on approach to the bend, particularly given the icy conditions which ought to have been apparent to him. The Court characterised his negligence as an “accidental but culpable error of judgement”. By contrast the Second Defendant Highway Authority’s breach of statutory duty to all road users was held to have been a more blameworthy causal factor in the accident than the First Defendant’s negligence. The Court apportioned two thirds responsibility to the Second Defendant, one third to the First Defendant.

Further Findings

The judge effectively took a two-stage approach to the question of whether the Second Defendant had breached section 41(1A). Firstly, the court asked whether safe passage along the road had been endangered by snow or ice. Uncontroversially, the court found it had. The fact that there had been five incidents in relatively short succession in the vicinity spoke volumes. The parties had essentially agreed that the First Defendant skidded and lost control due to ice on the road (although the Second Defendant also alleged that the First Defendant drove negligently).

The second question and major battleground was whether the Second Defendant had shown that it was not reasonably practicable for it to have acted otherwise than it did. This is where the judge’s finding that the burden of proof lay with the highway authority really bit. The trial judge found that the Second Defendant had adduced no real evidence of what the cost of acquiescing to ad hoc gritting requests, in terms of finances, resources or impact on the planned gritting programmes, might be. Further, the Second Defendant’s witnesses could not say that of their 86 gritters and 150 drivers none would have been available or eligible to carry out spot gritting that night. He therefore found that the Second Defendant had not discharged its burden of proof and was indeed in breach of section 41(1A).

Interestingly, the Highway experts in the case agreed that the Second Defendant’s Winter Services Manual was reasonable and that its prospective plan to grit P1 routes in the evening and P2 the following morning was reasonable. Further still, the appropriateness of the categorisation of the road as P2 was not challenged by the First Defendant. The difficulty for the Second Defendant arose because of the police requests for on the spot gritters to be urgently deployed. Although their winter services policy allowed for ad hoc gritting requests, the test of exceptional circumstances, which was in practical terms the test applied, was not documented or defined. The Second Defendant denied the test had been met because no emergency vehicle had been prevented from reaching the scene. However, the judge was critical that the “exceptional circumstances” test was not set out in the policy document and in any event was applied far too restrictively. HHJ Gosnell at paragraph 66:

“It is clear from the five incidents which occurred on Rascelf Road overnight that the Second Defendant as highway authority had not ensured that safe passage along that road was not endangered by snow and ice. The only issue is whether they had done what was reasonably practicable. I have found that the burden of proving that fell on the Second Defendant and in my judgment, it has failed to do so. It has a system which is prepared to entertain ad hoc requests for gritting outside the planned programme but has then sought to place an unnecessarily restrictive test before being prepared to exercise this discretion. Whilst it is obvious that if too wide a test is applied the planned programme of gritting could be seriously impacted there was no real evidence that there would have been any significant adverse effect from sending a gritter out to spot grit Rascelf Road that night. This was a situation where the quantum of risk was easily identifiable in terms of the possibility that a serious road traffic accident may occur if the road was not treated but the likely cost in terms of finance and manpower to ameliorate that risk was unspecified in evidence before the court but did not seem to me to be in principle, particularly significant. I therefore find, on balance of probability that the Second Defendant was in breach of their statutory duty under s 41 (1A) of the Highways Act 1980 .”

Implications for local authorities and motor insurers

This case arguably represents a worrying development for local authorities as we approach winter and accidents arising from snow and ice proliferate. Motor insurers will be more likely to consider bringing contribution proceedings against local authorities where there have been multiple incidents at or near an accident location and especially where police have made requests of the highway authority to undertake spot gritting of individual roads. Local authorities might well expect more aggressive and extensive requests for pre-action disclosure. Cases which involve an isolated incident or ‘mere’ concerns registered by members of the public about icy conditions are perhaps unlikely to make the grade. However, it was clear in the instant case that the fact that police officers had twice requested gritting held significant sway with the judge when it came to weighing in the balance the quantum of risk and potential harm from further accidents. Police perception of risk and when gritting is required has considerable force.

The potential effect of this decision should not be overstated. Arguably, the factual matrix is not typical. In how many snow/ice accident claims are there a close succession of accidents in the index locus and repeated refusals in the hours beforehand by a local authority of police requests for urgent gritting?

However, local authorities would be well-advised to revisit their winter services policy documents and ensure that explicit and adequate provision is made for dealing with additional/ad hoc gritting requests, particularly those coming from emergency services. The Courts may well now expect to see a considerable degree of flexibility in their arrangements.

It would also be sensible to ensure that any negative impact on finances, manpower and standard gritting programmes can be readily demonstrated, the easier to discharge the burden of showing that to have done more would not have been reasonably practicable and to deter claims at an early stage.

In terms of pleadings, counsel and solicitors would also be advised to ensure that when drafting a defence and denial to a claim under section 41(1A) that ‘reasonable practicability’ is clearly pleaded and the basis explained in order to ensure it can rely at trial on this line of defence.

For motor insurers, it will be very fruitful in appropriate cases (i.e. where the presence of snow/ice is a causal factor and the highway was plainly rendered dangerous) to carry out early investigations as to police activity in the vicinity at the material time including, crucially, whether the police made any requests for gritters to be urgently deployed. It may well be worthwhile pursuing vigorously pre-action disclosure requests/applications against highway authorities to discover their spot-gritting policies.

Ultimately, the combination of the burden lying with the highway authority in respect of ‘reasonable practicability’ and a causation defence being unavailable, makes a Part 20 contribution claim much less of a costs risk to motor insurers in suitable cases. The finding in this case that the majority share of responsibility lay with the highway authority for breach of section 41(1A)t road users as opposed to with the negligent driver, makes contribution proceedings even more attractive.

Written by Siobhan Lambertsen.



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