Treading on thin ice

It's that time of year when road travel can become considerably more hazardous. Have you not slid on ice on the road before?

Section 41(1A) of the Highways Act 1980 states that "a highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice". This section was added to the Highways Act 1980 by section 111 of the Railways and Transport Safety Act 2003, which came into force on 31 October 2003.

Section 62(2) of the Highways Act 1960 provides that "[a highway authority] may...carry out in relation to a highway maintainable at the public expenses by them, any work (including the provision of equipment) for the improvement of the highway".

Motorists' responsibility
Case law has determined that it is the primary responsibility of motorists to take care of their own safety and that of their passengers and other road users. They should take into account the prevailing conditions.

The onus, therefore, is on the driver to drive safely. However, if the driver crashes as a result of ice, it may be possible to argue that there was no driver negligence if, for instance, unforeseen black ice was the only cause of the accident.

Most claims involving ice on the highway are public liability claims against local authorities, on the basis that the roads should have been gritted or salted. The key case to refer to when considering public liability claims is Sandhar and Another v Department of Transport, Environment and the Regions (2004).

Here, the Court of Appeal held that the Department of Transport did not owe motorists a common duty of care to prevent ice forming on trunk roads, and could not properly be taken to have assumed a general responsibility to all road users to ensure that all or any trunk roads would be salted in freezing conditions.

Weather conditions
The Court of Appeal stressed that motorists need to take account of the weather conditions when driving.

To succeed in a claim, members of the public who crash on an icy road will need to prove that the Department of Transport or local authority failed to take reasonable steps to prevent the ice forming in the first place.

In practice, this will tend to come down to whether the local authority followed its winter maintenance policy and responded to weather alerts appropriately. The public cannot expect every country road to be salted, but if the local authority had been aware that there would be freezing conditions, then this should instigate the gritters being sent out on certain main roads.

Liability for any crash on ice would depend on what notice of the freezing conditions there had been and whether the steps taken to make the roads safe were reasonable, considering logistical practicalities and costs.

But what happens if a driver causes a crash while working to make the highway safe or carrying out necessary public services, such as refuse collection? Liability for a claim by a member of the public in these circumstances will depend on whether there has been driver negligence. But even if there were no driver negligence, the member of the public could make a public liability (PL) claim based on the local authority's negligence for failure to follow the winter maintenance policy or take all reasonable steps to ensure that the road was safe.

An employer's liability (EL) to the employee driver is analogous to a fire authority sending fire fighters to a fire scene. Despite the inherent danger of requiring the driving in hazardous conditions, there needs to be negligence and/or breach of statutory duty for there to be a liability. Documented risk assessments relating to the winter maintenance policy and its application, and the training of the gritter drivers and their managers, will be vital evidence in defending these types of claims.

If there is a claim by an employee passenger but there is no driver negligence, then the passenger could make an EL or PL claim against the local authority.

In terms of the EL and PL claims, bear in mind that, in some circumstances, the Compensation Act 2006 will be relevant, in that the tackling of the ice is a desirable activity because it will help to prevent accidents.

A judge should be requested to consider the 'public good arguments' and practical necessity of sending out gritters and other public services vehicles in icy conditions. For instance, even if there was a bad spell of icy and snowy weather, refuse collection still needs to take place and ambulances still need to reach emergencies.

Insurance coverage
Whether it be a member of the public or an employee, allegations of driver negligence will generally be dealt with under the motor policy. Allegations relating to the Highways Act for failing to keep the roads safe will generally be dealt with under the PL policy, while allegations relating to the management of health and safety at work regulations or provision and use of work equipment regulations will tend to be covered under the EL policy.

A claim by the public or an employee for a crash on ice may include motor and PL allegations, and a claim by an employee may include EL allegations as well. Whether it will be the motor, EL or PL policy that responds to the claim will depend on the nature of the allegations. This may result in dual or multi- coverage and possible apportionment between insurers.

The law surrounding highway claims in icy conditions is a complex one. The burden of proof is high with logistical practicalities, cost and public good all being relevant considerations. Crash on an icy road and there may be no one to sue. Accidents on icy roads may simply be accidents - a rarity in our blame-filled culture. IT

James Morris is a partner and Tom Baker, a solicitor, in the injury risk group at Beachcroft