Goodes v East Sussex County Council

Claimant skidding on ice and crashing motor vehicle – Council warned of icy conditions – Whether council’s duty to maintain highway includes duty to keep road safe by preventing ice from forming – Section 41(1) of Highways Act 1980 – Appeal allowed In 1991 the claimant was driving his motor vehicle on a highway when his rear wheels skidded on a patch of ice, with the result that he crashed and suffered severe injuries that left him almost entirely paralysed. The claimant issued proceedings against East Sussex County Council on the ground that the council were in breach of their statutory duty “to maintain the highway”, under section 41(1) of the Highways Act 1980, in that, prior to the accident, they had failed to prevent the formation of ice by neglecting to spread salt and grit on the road. By section 329(1) of the 1980 Act, “maintenance” includes repair, “and ‘maintain’ and ‘maintainable’ are to be construed accordingly”. The council denied that they had a statutory duty to keep the roads free of ice, but pointed out that they made considerable efforts to do so. On the morning of the accident, the highway superintendent had received the weather forecast of freezing conditions from Southampton metropolitan office. On that basis, gritting lorries were dispatched, which, however, reached the accident site a few minutes after the accident had taken place. The High Court held that the actions of the council had satisfied their duty under section 41(1) of the 1980 Act, and dismissed the action. The Court of Appeal allowed the claimant’s appeal, finding that the council had been under a duty to keep the road free from ice and that they had been in breach of that duty by failing to complete the gritting before the time when, according to the forecast, ice was likely to form. Held: The appeal was allowed. 1. As a matter of ordinary speech, the “maintenance” of a highway was capable of including salting, gritting and the removal of ice and snow. However, the 1980 Act was a consolidation Act and sections 41(1) and 329(1) reproduced provisions identical to those appearing in sections 44(1) and 295(1) of the Highways Act 1959, also a consolidation Act. When construing the 1959 Act, it was impossible to ignore the fact that it had been based upon centuries of highway law. 2. It was not an admissible construction of section 44(1) of the 1959 Act, and therefore of section 41(1) of the 1980 Act, to hold that it was capable of imposing an absolute duty on local authorities to maintain roads free from the ice or snow that could endanger safe passage. The section was not capable of judicial extension to create a duty not only more onerous, but different in kind from that which had existed in the past. It was not sufficient to say that even if there was an absolute duty on local authorities to maintain the roads free from ice or snow, the local authority could rely upon the statutory defence in section 58 of the Act, whereby the authority were not liable if they proved that they took such care as was reasonably required, in all the circumstances, to ensure that the part of the highway to which the action related was not dangerous to traffic. That section gave an authority a defence to a claim in damages, but the authority would still be in breach of the absolute duty: Cross v Kirklees Metropolitan Borough Council [1998] 1 All ER 564 and Haydon v Kent County Council [1978] QB 343, not followed. John Ross and Richard Carron (instructed by Townsends, of Swindon) appeared for the claimant; Christopher Wilson-Smith QC and John Stevenson (instructed by Wynne Baxter Godfree, of Lewes) appeared for the defendant council. Thomas Elliott, barrister