Getting a grip

As I sit here at home, snowed in for the second day running, my mind turns to what the obligations of local authorities and others are to keep our roads clear of snow and ice. This becomes an insurance issue every year as thousands of accidents are caused by icy roads and many people contemplate claiming. Yet the law is not as straightforward as some might expect.

The issue tends to come before the courts when some unfortunate motorist has skidded on ice and crashed, suffering catastrophic injuries, which results in a claim against the highway authority for failing to grit. Such claims can run to millions of pounds. There have also been many other much smaller claims by pedestrians who have slipped over on footpaths and suffered broken wrists, ankles and so on.

The main piece of legislation governing this is the Highways Act 1980, which imposes a duty on highway authorities, usually the local authority, to maintain the highway. Prior to 2000, this included keeping it clear of snow and ice.

The House of Lords decided in 2000, in Goodes v East Sussex County Council, that the duty to maintain the highway did not extend to keeping it clear of snow and ice. This may have been a public policy decision, as the court recognised that it was logistically impossible to clear every road as soon as the snow came down.

But it did leave highway authorities with less motivation to keep the roads clear in winter, as they could no longer be sued by individuals who had suffered accidents. Indeed, there was almost a perverse incentive not to because they could still be sued in theory if they did attempt to grit but botched the job, as this could amount to negligence.

Parliament sorted the situation out in 2003 by adding a clause into the Railways and Transport Safety Act of that year, explicitly stating that highway authorities are under a duty to ensure, so far as reasonably practicable, that safe passage along a highway is not endangered by snow or ice.

This takes us to the law as it now stands. Highway authorities have a clear legal duty to remove snow and ice, but are protected from claims by being able to say that they have done what is reasonably practicable or reasonably required to keep the highway safe.

In practical terms, what this means is that if a highway authority wants to avoid snow and ice claims, it should have an effective winter service operational plan. This is what is recommended by the ‘bible’ of highway managers, ‘Well-maintained Highways – Code of Practice for Highway Maintenance Management’.

The code recommends an approach to winter maintenance of highways that would result in a plan that adapts to different weather conditions, with the aim of keeping the main roads open. It is recognised in the code that no plan can keep all of the roads clear all of the time and there is no attempt to do so. The courts have indicated a number of times that provided a highway authority has a reasonable plan for winter service of roads and properly executes that plan, then they won’t land the authority with liability for any accidents.

So where does that leave us during these snowy days? Well, for someone like me snowed in on a side road, there does not appear to be any legal obligation to clear all roads, provided the authority is doing what is ‘reasonably practicable’.

For a motorist or pedestrian who has suffered injury as a result of snow or ice on the road, or indeed their insurer who may be looking to recover an outlay, the prospects of succeeding in a claim against a highway authority are pretty slim.

If the authority has a reasonable operational plan to react to bad weather and has followed that plan, the courts are unlikely to criticise them. Therefore, anyone contemplating a claim might want to start by asking for the plan and finding out whether it was properly followed. If there is no plan or it wasn’t carried out correctly, for example gritting lorries did not grit the areas they should have done, then there may be a better claim.

Theoretically, it may be possible to argue that the plan itself is not good enough, but it’s difficult to imagine many judges saying that a professional highway manager has failed to write a suitable plan, and being prepared to rewrite it so that it shows the accident could have been avoided.

If you are unhappy with the way your local authority clears the snow and have suffered injury, it would seem that political pressure by way of complaints to local councillors is more likely to be productive than recourse to the courts.

Andrew Welch is partner and head of insurance at North West law firm, Stephensons Solicitors.

The views expressed in this article are the personal views of Andrew Welch and are not those of Stephensons Solicitors. This article does not constitute legal advice.