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Goodes v East Sussex County Council, House of Lords

16 June 2000
The issues

Liabilty of a Highway Authority to keep the highway in a good state of repairs and whether that included a duty to prevent or remove the formation or accumulation of ice and snow on the road.

The facts

Mr Goodes was driving his Ford Capri on the A267 near Mayfield in Sussex. He moved out to overtake on a straight stretch of road when a rear wheel skidded on a patch of black ice. It was a frosty November morning. He lost control and the car crashed into the parapet of a bridge. He suffered serious injuries and as a consequence was almost entirely paralysed. He did not allege that there was anything wrong with the road surface but maintained that the Council was in breach of its statutory duty under Section 41 to “maintain the highway”.

The Council denied that it had a statutory duty to keep the roads free of ice but accepted that it did in fact make considerable efforts to do so.

The matter came before the Court of Appeal which decided on the assumption that the statute imposed a duty to keep the road free of ice and that the Council was in fact in breach of that duty.

The decision

“Maintenance ” was partially defined in Section 329 (1) of the 1980 Act. It provided that maintenance included repair. It was argued for the Claimant that maintenance was a wider concept that merely repairing the fabric of the highway and was capable as a matter of ordinary language of including salting and gritting. This was the argument accepted in Haydon v Kent County Council by the majority of the Court of Appeal (although the majority includes Shaw LJ whose judgment Lord Hoffman stigmatised (or dignified?) as “obscure”. The majority of Haydon was followed by the Court of Appeal’s majority decision in Cross v Kirklees.

Lord Hoffman preferred the dissenting judgment of Lord Denning in Haydon. He accepted that although as a matter of ordinary language maintenance of the highway could include salting and gritting and the removal of ice and snow, the context in which the words appeared gave them a much narrower meaning. From the historical point of view the duty to maintain under the 1959 Act which had been consolidated in the 1980 Act was the same duty as that which common law or statute imposed before the Act on the inhabitants at large or by succession on the previous highway authorities.

That duty was not absolute. There was no need for the road to be perfect. The duty was to put the road in such a good state of repair as rendered it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.

The duty was absolute in the sense that the highway authority had an absolute duty to maintain the highway in a state which satisfied that objective standard. It had to levy whatever rate was necessary for the purpose. It was no answer if the highway fell short of that standard for the highway authority to say that it took all reasonable care or that its resources were insufficient. Lord Hoffman went on to consider the scope of the duty prior to 1959 and found 3 sources of information which put the matter in his view, beyond doubt. Namely cases relating to the streets of London, tramway cases and statutory provisions about snow and ice.

In respect of the London cases, such authority as there was indicated that in respect of the predecessor legislation dating between 1870 and 1891 there was no duty on the authorities to clear the streets of ice and snow.

In respect of the specific provisions he noted that the 1984 Road(Scotland) Act provided specifically for the removal of snow and ice by a road authority and similarly that there were specific provisions in the 1835 highways Act and the 1980 Act at Section 150 providing for the removal of impediments or obstructions on the highway. But specific provisions did not bear on the concept of maintenance.

The tramway cases dealt with the obligations under the Tramways Act imposed upon tramway companies to maintain and keep in good condition and repair the part of the road lying between the rails. In such cases as came from that legislation, the House of Lords accepted (in 1903) that maintaining did not include dealing with transient weather condition.

The historical duty on balance did not include within the duty to maintain a duty to remove snow or ice.

It was argued that that duty could be extended on the basis that vehicles today moved at higher speeds and the presence of ice made the roads a greater hazard than in Victorian times. Although an attractive argument it was not one that Lord Hoffman would accept. The duty was an absolute one – the test was an objective one and the requirements of that objective test might become more exacting with the passing of the years. But an absolute duty to keep the highway free of ice would be an altogether different matter. No highway authority could avoid being from time to time in breach of its duty. His Lordship noted that in Haydon the Court of Appeal which had been aware of this difficulty had tried to meet it by reformulating the scope of the duty such that the highway authority would be in breach of its duty only if sufficient time had elapsed to make in unreasonable for the authority to have failed to take remedial measures.

Although this test avoided “the extravagant consequences of extending the absolute duty” it did so only by “sacrificing its absolute character”. Lord Hoffman commented that this test in terms of the absolute duty had seemed to incorporate considerations more appropriate to the statutory defence and he noted that it would be hard to imagine a case under those circumstances in which the highway authority could be in breach of duty but succeed in making up the statutory defence. The duty if it was to be extended, should be extended by Parliament.

Appeal Allowed – Action Dismissed.

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