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|Judgments - Goodes v. East Sussex County Council
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hoffmann Lord Clyde Lord Hobhouse of Woodborough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
EAST SUSSEX COUNTY COUNCIL
ON 15 JUNE 2000
LORD SLYNN OF HADLEY
Section 41(1) of the Highways Act 1980 requires a Highway Authority for a highway maintainable at the public expense "to maintain the highway." By Section 329(1) of the Act " 'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
On 14 November 1991 at 7.10 in the morning, Mr. Goodes was driving his car on a highway maintainable by East Sussex County Council. The car skidded on ice on the road and crashed into the bridge. Mr. Goodes was gravely injured. He has claimed damages from the Highway Authority for breach of their duty to "maintain the highway". In view of what the Authority's officers knew of the forecast weather conditions at that time of the morning, they should have taken steps in sufficient time to put down salt or grit and thus to prevent the ice forming. Whether the gritting lorry which had been scheduled to cover the road could and should have arrived earlier in time to prevent ice forming has been contested at the trial and before the Court of Appeal.
The issue before your Lordships has, however, been whether the duty to "maintain" includes a duty to keep the road safe by preventing ice from forming. It has not been contended that there is a liability at common law in negligence.
As a matter of ordinary language "maintain" is wide enough to include the taking of preventive steps and to include steps to keep the road safe for ordinary use by motor cars. Gritting is a perfectly normal practice and no suggestion is made that extraordinary or novel steps should have been taken. If this Act stood alone, there would be much force in the conclusion of the majority in the Court of Appeal that there could be liability in some circumstances for a failure to maintain by keeping the road safe subject to the Local Authority establishing a defence under section 58(1) of the Act that the Authority:
The Act of 1980 cannot, however, be seen in isolation. Section 41 has its antecedents in earlier legislation and in the obligations of the inhabitants of the parish responsible for keeping a highway in repair. My noble and learned friend Lord Hoffmann, whose speech I have had the advantage of reading in draft, has analysed the extent of the duty both by statute and at common law. I agree with his conclusion that the earlier obligation to maintain or repair a highway would not have included preventing the formation of ice or danger created by snow and that "maintain" in section 41(1) and "maintenance" in section 329(1) must be read in the same way.
Accordingly, despite the admirable arguments of Mr. Ross, I agree that the appeal should be allowed and the action dismissed.
I have had the advantage of reading the draft the speeches of Lord Slynn of Hadley and Lord Hoffmann. For the reasons they have given I would also allow the appeal.
1. The accident
At dawn on a frosty November morning in 1991 Mr. Geoffrey Goodes was driving his Ford Capri on the A267 at Wellbrook Hill near Mayfield in Sussex. As he moved out to overtake on a straight stretch of road, a rear wheel skidded on a patch of black ice. He lost control and the car crashed into the parapet of the bridge over the Wellbrook. He suffered dreadful injuries and is now almost entirely paralysed.
2. The issue
Mr. Goodes claims damages against East Sussex County Council on the ground that it was in breach of its statutory duty under section 41(1) of the Highways Act 1980 to "maintain the highway." He does not complain that there was anything wrong with the road surface. In freezing weather, black ice can form on the best laid surfaces. But he says that the council should have prevented the formation of the ice by spreading salt and grit on the road before dawn. So the short point in this appeal is whether the duty under section 41(1) is confined to keeping the highway in good repair or whether it also obliges the council to keep it free of ice. The statement of claim also contained an allegation that the council had been guilty of common law negligence. But this was not pressed at the trial and has disappeared from the case. The courts below said that they were bound by previous authority to hold that section 41(1) imposed the wider duty. But the Court of Appeal gave leave to appeal so that those authorities could be examined in your Lordships' House. There was a difference of opinion on whether the council had complied with the duty. The judge held that it had done enough and dismissed the action. In the Court of Appeal  R.T.R. 210 Aldous L.J. agreed. But the majority (Hutchinson and Morritt L.JJ.) held that the council was in breach and allowed the appeal.
3. The council's practice
Although the council denies it has a statutory duty to keep the roads free of ice, it does in fact make considerable efforts to do so. The Highway Superintendent receives weather forecasts from the Southampton Meteorological Office and decides whether and when to send out the council's fleet of gritting lorries. Each lorry has a route to cover. The council follows a Code of Good Practice issued by the Association of County Councils and three other local authority associations. This says, among other things, that the salting should be completed before the morning rush hour begins at 7.30. In the present case there had been a forecast of freezing conditions in the early hours and the lorries had been despatched at 5.30. Unfortunately, by the time of the accident, the lorry covering the A267 had not yet got to Wellbrook Hill. It arrived a few minutes later and would have been able to complete its route by 7.30. But a majority of the Court of Appeal decided, on the assumption that the statute imposed a duty to keep the road free of ice, that the council was nevertheless in breach of duty. The gritting should have been completed before the time when, according to the forecast, ice was likely to form.
4. Statutory construction
There is a partial definition of "maintain" in section 329(1) of the Act of 1980. It provides that "'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
The Act of 1980 was a consolidation Act and section 41(1) and the accompanying definition reproduced identical provisions which had first appeared as section 44(1) and section 295(1) (the definition clause) of the Highways Act 1959. There is nothing to suggest that any change of meaning was intended. The Highways Act 1959 was also a consolidation Act. The long title was "An Act to consolidate with amendments certain enactments relating to highways." But there is no exact antecedent of section 44(1) and the definition.
Mr. Ross, who appeared for Mr. Goodes, put forward an attractive argument on construction. He said that although the Act of 1959 was a consolidation Act, the court should interpret section 44(1) in the same way as if it formed part of a new Act. This was for two reasons. First, it was not simply a consolidation Act. It also contained amendments. Section 44(1) might therefore have been intended to amend the previous law by extending the duties of highway authorities from maintenance of the fabric to other forms of maintenance necessary to prevent the highway from being dangerous to the public. Secondly, even in the case of a pure consolidation Act, the courts should not delve into the antecedent legislation unless the obscurity of the statutory language made it necessary to do so. As Lord Wilberforce said in Farrell v. Alexander  A.C. 56, 73:
Mr. Ross said that there was no real ambiguity about section 44(1) read with the definition. If maintenance "includes" repair, it must also include something else. Thus the concept must be wider than merely repairing the fabric of the highway. As a matter of ordinary language, "maintenance" is capable of including salting and gritting. No one would think it an odd use of language to say that the gritting lorries were used for highway maintenance. Furthermore, if one looks to the purpose of the legislation, the reason why a highway authority is under a duty to maintain the highway is to ensure that it can be used with safety by members of the public. By 1959 it was recognised that this required the removal of snow and ice. Highway authorities had in practice been spreading salt and grit on the roads for a number of years. It would be anomalous if the highway authority had a duty to eliminate potholes but was not required to do anything about the more insidious hazards of black ice. Another anomaly would be the distinction between the duty of a highway authority in respect of the dangerous state of the highway and the liability of an adjoining owner in public nuisance for causing danger to persons on the highway. The latter would be far more strict: for example, in Slater v. Worthington's Cash Store Ltd.  1 K.B. 48 a property owner was held liable for failing to remove snow from his roof, so that a minor avalanche injured a passer-by on the pavement.
5. Haydon v. Kent County Council  Q.B. 343
My Lords, I have said that Mr. Ross's argument was attractive and in Haydon v. Kent County Council  Q.B. 343 it was accepted in principle by the majority (Reginald Goff and Sebag Shaw L.JJ.) in the Court of Appeal. It was however rejected by Lord Denning M.R. In a judgment written at the age of 78 which, if I may say so with respect, displays to the full his formidable learning and powers of analysis and lucid exposition, he explained why, notwithstanding the definition, the liability to "maintain the highway" was concerned only with keeping the fabric in repair. The majority opinion was followed by the Court of Appeal in Cross v. Kirklees Metropolitan Borough Council  1 All E.R. 564 and in the present case, reported in  R.T.R. 210. My Lords, I will say at once that I find the judgment of Lord Denning M.R. completely convincing. Perhaps I really need to say no more. But out of respect for Mr. Ross's argument I shall give my reasons in my own words.
6. The context of the Act of 1959
My Lords, I quite accept that as a matter of ordinary speech, the "maintenance" of the highway is capable of including salting and gritting and the removal of ice and snow. On the other hand, the context in which the words appear may give them a narrower meaning. It seems to me quite impossible, in construing the Act of 1959, to shut one's eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law. The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them.
Thus section 38(1) provided that thenceforth "no duty with respect to the maintenance of a highway shall lie on the inhabitants at large of any area." Section 38(2) provided that a highway which, immediately before the commencement of the Act, was maintainable by the inhabitants at large or maintainable by a highway authority, should be, for the purposes of the Act, a highway "maintainable at public expense."
In order to understand these provisions, it is necessary to know that at common law the "inhabitants at large" of a parish were under a duty to keep its highways in repair. The Act was thus using "maintenance", in the defined sense, as equivalent to the previous duty of the inhabitants at large, which was to keep the highways in repair. The common law duty was enforceable by proceedings on indictment in the nature of a prosecution for public nuisance. By a series of statutes commencing in the 16th century, parishes were authorised or required to organise their affairs by levying a highway rate and appointing a "surveyor of highways" to whom the parish would entrust the duty of maintaining the highways and the necessary funds. This legislation was consolidated in section 6 of the Highways Act 1835 which provided that "every parish maintaining its own highways" should appoint a surveyor who should "repair and keep in repair the several highways in the said parish." But the surveyor was the agent of the inhabitants at large. The duty remained upon them and the surveyor was not liable on indictment or in damages. During the 19th century, however, the duty to maintain highways was in many cases transferred, by Highways and Public Health Acts, from the inhabitants to statutory highway authorities. It was this process which was completed by section 38 of the Highways Act 1959, abolishing any remaining liability of the inhabitants at large and transferring the responsibility for maintaining all "highways maintainable at public expense" to the highway authorities constituted under the Act. In my opinion, if one reads sections 38 and 44 together, the duty to maintain under section 44(1) is the same duty as that which common law or statute imposed before the Act upon the inhabitants at large or, by succession, the previous highway authorities.
7. The common law
The Act of 1959 (following earlier legislation) provided, in place of the old remedy by way of indictment, a procedure of complaint to the Crown Court which is now contained in section 56 of the Highways Act 1980. But the nature of the duty remained the same. It was described by Diplock L.J. in Griffiths v. Liverpool Corporation  1 Q.B. 374, 389:
The duty is not absolute in the sense that the road has to be perfect. As Diplock L.J. explained in the later case of Burnside v. Emerson  1 W.L.R. 1490, 1497, the duty is to put the road:
But the highway authority has an absolute duty to maintain the highway in a state which satisfies this objective standard. It must levy whatever rate is necessary for the purpose. If the condition of the highway falls short of the statutory standard, the highway authority is in breach of duty. It is no answer that it took all reasonable care or that its resources were insufficient.
Although the common law imposed upon the inhabitants at large a duty to maintain highways irrespective of their resources, it did not impose upon them the additional financial burden of paying compensation to anyone who suffered damage because of a failure to repair. An individual had no cause of action. When the duty to maintain was transferred to highway authorities, the courts decided, in a series of decisions approved by the House of Lords in Cowley v. Newmarket Local Board  A.C. 345, that no action in tort lay against the highway authorities either. This exemption from liability for damages was preserved by section 298 of the Act of 1959, which (omitting some irrelevant words), read as follows:
The "duty of highway authorities to maintain highways maintainable at the public expense" is a reference to the duty imposed by section 44(1). That duty is expressed to be subject to an existing exemption from liability for non-repair which is available to the highway authority "as successor to the inhabitants at large." This again indicates that the duty under section 44(1) was intended to be the same as that which previously existed.
Only two years after the Act of 1959, the exemption was abolished and section 298 repealed by the Highways (Miscellaneous Provisions) Act 1961. It is by virtue of this change in the law that Mr. Goodes brings his action. To mitigate the effect of allowing a private cause of action for breach of an absolute duty, the Act gave highway authorities a special statutory defence, which is now in section 58 of the Highways Act 1980. The authority is not to be liable if it proves that it took "such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic." Section 58(2) specifies various matters to which the court should have regard in deciding whether the highway authority has made out its defence.
Mr. Ross submitted that the Act of 1961 had enlarged the duty of the highway authority and made it a general duty to take reasonable care to secure that the highway was not dangerous to traffic. This was the view taken by Sellers L.J. in Griffiths v. Liverpool Corporation  1 Q.B. 374. But his was a minority opinion and I think it was wrong. The Act of 1961 left the duty in section 44(1) untouched. It created a private law remedy in damages for breach of that duty, subject to the statutory defence. But the scope of the duty continued to be whatever it had been before.
9. The scope of the duty before 1959
It seems clear that before the Act of 1959, the duty to maintain the highway, whether imposed upon the inhabitants at large by common law or transferred to highway authorities by statute, was not considered to include a duty to remove ice or snow. Still less was there a duty to take steps in advance to prevent ice forming or snow settling. In the nature of things, the authorities are sparse because ice and snow are transient and therefore unlikely to be the subject of proceedings by indictment. But there are three sources of material which put the matter beyond doubt. First, there is the existence of special statutory provisions for dealing with ice and snow. Secondly, there are dicta in cases in which attempts were made to bring actions for damages based upon breaches of the duties imposed by the special provisions. Thirdly, there are dicta in cases in which a special statutory duty to maintain the highway did, exceptionally, create a private cause of action. Examples of the first two are to be found in litigation about highways in London and the third in actions under provisions of the Tramways Act 1870.
(a) The streets of London
The streets of early 19th century London were filthy. Mud, rubbish and horse and cattle manure as well as snow and ice in winter often made them dangerous and unpleasant. But the highway surveyors of the London parishes were under no duty to clean the streets or take any other steps to remove dirt, snow and ice. Readers of Dickens or Mayhew will be aware that in the first half of the 19th century, gangs of small boys made a precarious living off tips by sweeping crossings to clear a passage for pedestrians to cross the road.
Section 96 of the Metropolis Management Act 1855 constituted the vestries or boards of works of the London parishes as highway authorities and transferred to them the powers and duties of the parish highway surveyors. But the special provision made for keeping the highways free of dirt, ice and snow shows that the general duty to maintain them was regarded as confined to keeping the fabric in repair. Earlier legislation, such as section 63 of the Metropolitan Paving Act 1817, had required householders to sweep the pavements adjoining their houses daily during periods of frost and snow. The pavements were of course part of the highway. The private duty was not very effective and section 117 of the Act of 1855 provided that, without prejudice to the liability of the householders, the highway authorities should cause the footways to be "scraped, swept or cleansed in such manner and at such times as they think fit." The private enterprise of crossing sweepers was also replaced or supplemented by a power given to the parishes under section 118 to employ crossing sweepers "distinguished by their dress or some distinctive mark as public servants."
The obligations of the householders were finally abolished by section 29 of the Public Health (London) Act 1891, which provided instead that:
The "sanitary authorities" for the purposes of public health legislation were the same as the highway authorities under the Act of 1855 and "street refuse" was defined to mean "dust, dirt, rubbish, mud, road scrapings, ice, snow and filth." In default, the sanitary authority was to be liable to a fine.
In Saunders v. Holborn District Board of Works  1 Q.B. 64 the Divisional Court decided that a breach of the duty to remove snow did not give rise to a private law cause of action, any more than a breach of the duty to maintain the highway. Mr. Saunders had been injured when he slipped on an icy pavement. In the course of his judgment, Charles J. said, at p. 69 that until the Act of 1891 was passed, "it was not the duty of the sanitary authority to take any steps to clear the streets of ice and snow." It was a duty, which, as Mathew J. said, at p. 67, "formerly rested upon the householders."
(b) Other provisions about snow and ice
There is a specific duty to remove snow and ice in the law of Scotland. Section 34 of the Roads (Scotland) Act 1984 provides that:
There are also English provisions about accumulations of snow which obstruct the highway. Section 26 of the Highways Act 1835 provided :
A similar provision in more modern terms is to be found in section 150(1) of the Highways Act 1980. But the existence of specific provisions dealing with obstruction show that the removal of obstructions was not in itself regarded as falling within the concept of maintenance, although it might be sometimes be necessary to remove an obstruction in order to maintain the road: see Reg. v. Heath (1865) 6 B. & S. 578; Reg. v. Inhabitants of Greenhow (1876) 1 Q.B.D. 703. In Guardians of the Poor of the Union of Amesbury v. Justices of the Peace of the County of Wiltshire (1883) 10 Q.B.D. 480, 483, the Divisional Court (Cave and Day JJ.) decided that the removal of snow which obstructed the main roads of the district of a highway authority was an "expense incurred in the maintenance" of the highways for the purposes of obtaining a contribution from the county under section 13 of the Highways and Locomotives (Amendment) Act 1878. But I think that the decision must be regarded as specific to that Act.
(c) The tramway cases
Section 28 of the Tramways Act 1870 imposed upon a tramway company a duty to "maintain and keep in good condition and repair," to the satisfaction of the highway authority, the part of the road which lay between the rails. The granite setts between the tramlines of the Dublin United Tramway Company in Grafton Street had become worn and slippery so that they were dangerous in wet weather. The highway authority directed them to make the road safe by putting down sand or in some other way. In Dublin United Tramways Co. Ltd. v. Fitzgerald  A.C. 99 the plaintiff sued for injury suffered when his horse fell on the stones. When the case came before the House of Lords, there seems to have been no dispute that the statute created a private right of action. But the defendants said that they had no obligation to remedy transient conditions of rain or snow by putting down sand. The House of Lords accepted that the company's only duty was to maintain the fabric of he highway in a reasonably safe condition. If the surface were in proper repair, there would be no further obligation to deal with transient weather conditions. It was only because the setts had become worn and slippery that they were obliged to do anything at all. Sanding was merely one way in which they could remedy the fact that the surface was not in good repair.
This case was followed by the Divisional Court in England in Acton District Council v. London United Tramways  1 K.B. 68, in which the question was whether the removal of four or five inches of snow from the tramway in Acton High Street was within the duty to maintain the highway imposed by section 28 of the Act of 1870. The Divisional Court decided that it was not.
10. The duty in 1959
The Act of 1959 was, as I have said, simply intended to transfer the existing duty to maintain the highways from the previous highway authorities or the inhabitants at large to the highway authorities constituted by the Act. If, therefore, the previous duty to maintain did not include a duty to remove snow or ice, the duty under section 44(1) did not do so either. Why, then, did the definition clause say that maintain "includes" repair? Previous legislation had used the words "maintain," "repair," "maintain and repair," "repair and keep in repair" without apparently intending any difference in meaning. It is not easy to fathom the draftsman's mind but one clue may lie in a remark of Diplock L.J. in Burnside v. Emerson  1 W.L.R. 1490, 1496-1497 which I have already quoted in part: