Failing to React and Reasonable Practicability under Section 41(1A) of the Highways Act 1980

A recent decision of particular importance to those involved in claims against Highway Authorities – particularly such claims as engage the Authority’s duty under s. 41(1A) of the Highways Act 1980 (“the Act”) – is Smithson v (1) Lynn (2) North Yorkshire County Council [2020] EWHC 2517 (QB). HHJ Gosnell (sitting as a Deputy High Court Judge) found that the Highway Authority’s duty under s. 41(1A) included being required to react to reports of adverse conditions of ice and snow where conditions of the highway were noted to be particularly hazardous. The judgment can be found here.

The Facts

The claim concerned a single vehicle road traffic accident which occurred on 22 November 2015 on Rascelf Road, a highway under the jurisdiction of the Second Defendant (“NYCC”). The Claimant was a passenger in a vehicle driven by the First Defendant and was injured when the First Defendant lost control of his vehicle due to a combination of excessive speed and icy road conditions and collided with a tree just off the highway. NYCC were brought in by the First Defendant (and also added as Second Defendant by the Claimant) on the basis that they had failed to discharge their duty under s. 41(1A) of the Act and as such owed the First Defendant a contribution or indemnity in respect of his liability to the Claimant. The claim between the Claimant and the First Defendant settled, but the claim between the First Defendant and NYCC continued to trial.

Front and centre of the First Defendant’s claim was that NYCC had received notification of four incidents on Rascelf Road, on the evening in question, relating to icy road conditions which needed to be attended to. The last of those four incidents was a road traffic collision which had occurred in the exact same locus as the Claimant’s accident, just a few hours before, and following which police had notified NYCC of a large patch of black ice which made road conditions dangerous. Despite acknowledging receipt of those notifications, NYCC had not deviated from their planned ice and snow gritting regime by the time of the Claimant’s accident, thus knowing that as a Priority 2 Road it would not be attended to until the following morning.

The Highway Authority’s Gritting Policy

NYCC’s Winter Service Manual contained a means of ensuring that roads could be gritted out of order from the priority list drawn up under their gritting programme. That power came from the following provision:

“Requests for alleviation of bad road conditions

“Such requests received at County Hall will be passed to the appropriate Area. It will be the responsibility of each Area to determine the priority of individual requests relative to the prevailing situation“.

However, NYCC’s position was that deviation from the programme would only be done in ‘exceptional circumstances’ – though no definition of what that may constitute was cited within the manual. At trial, NYCC’s position was that it would occur in circumstances where, for example, road conditions were so bad that emergency service vehicles could not attend an emergency as a result.

The Court found that it was reasonable to have such an “exceptional circumstances” test when deciding whether to depart from planned gritting works. HHJ Gosnell held at [63]:

“The test of “exceptional circumstances” has arisen over time as a way for the Second Defendant to minimise the effect that such requests might have on the planned gritting programme. Obviously, if every request from a member of the public had to be acted on, I accept that this would place an unreasonable burden on the Second Defendant and might well result in the planned programme descending into chaos. Some sort of value judgment is necessary to separate the serious requests from the trivial ones…“

Failing to React to Reports

However, the Court took the view that the way in which NYCC had adopted that test, and indeed applied it on the evening in question, was too restrictive. The Court emphasised that, particularly where reports had come in from police officers following road traffic collisions, important assessments needed to be made without undue restrictions being placed on Duty Managers within Highway Authorities. It was here that NYCC had failed in their duty under s. 41(1A) and they had not discharged the burden of proving that they had done all that was reasonably practicable to fulfil their duty – see particularly at [60]:

“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.“

Conclusions

Several important points arise from this judgment:

1. It is not unreasonable for a highway authority not to respond to reports of hazardous conditions per se. Before departing from planned gritting and maintenance works, judgement calls must be made by Duty Managers and Inspectors.
2. But, when making those judgement calls, in light of third-party reports, a Highway Authority ought not unduly limit or restrict the ability of the Duty Manager or Inspector to make the appropriate decision.
3. Section 41(1A) of the Act contains a “built in” test of reasonable practicability which circumvents the application of raising the statutory defence under s. 58. In assessing whether or not there has been a breach under s. 41(1A) however, the approach remains as per s. 41(1) and s. 58, namely; that it will be for the Claimant to show the highway was endangered by a hazard (in this case ice), and it is then for the Highway Authority to show that notwithstanding that condition, they had done all they reasonably could to prevent it.
4. In proving that it had done all that was reasonably practicable, a significant evidential burden is placed on the Highway Authority. Speculation is insufficient and evidence must be put forward to support the decisions made.

In Smithson, ultimately, NYCC came up short in demonstrating that it was not reasonably practicable for them to respond to the notifications they had received concerning Rascelf Road. Their evidence was insufficient on why it would have been too onerous to interfere with the planned works and they did not cater for a proper consideration of matters due to their unduly restrictive exceptional circumstances test.

Of course, the matter was decided under s. 41(1A) which is confined to specific circumstances of snow and ice. Nonetheless, one is given to wonder if there is a wider impact from this case into the more commonly-encountered claims under s41 and defences under s58 where prior notifications have been given to a Highway Authority of a hazard which has then not been followed up prior to an accident occurring. One can well see why this case may be a frequent citation in those claims too.