(back to preceding text)

    The draftsman may have thought that if he used only the word "maintain", it might be argued that the authority had only to maintain the road in its existing condition. The addition of "repair" was to make it clear that, if the road was not in an appropriate state of repair, the authority was under a duty to ensure that it was. But whether the word was "maintain" or "repair", the duty was, as Diplock L.J. said, to enable it to be used without "danger caused by its physical condition."

    11. Extending the duty

    Assuming against himself that the law in 1959 shows that the duty to maintain the highway did not include the removal of ice or snow, Mr. Ross submitted that it should move with the times. Public expectations change and what might have been regarded as sufficient maintenance in Victorian days would not necessarily be adequate in 1959 or now. The use of vehicles moving at much higher speeds makes ice on the road a far greater hazard, which requires a higher standard of maintenance. In Attorney-General v. Scott [1905] 2 K.B. 160, 168, Jelf J. said, in a judgment approved by the Court of Appeal, that a highway authority should "maintain the road according to an up-to-date standard" (in that case, to permit the passage of traction engines.)

    This again is an attractive argument, but I am afraid that I cannot accept it. It must be remembered that the duty in question is an absolute one and in this context there seems to me an important difference between a duty to maintain the fabric of the road in good repair and a duty to prevent or remove the formation or accumulation of ice and snow. In the case of the duty to repair, the road either satisfies the objective test formulated by Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1497 or it does not. The requirements of that objective test may become more exacting with the passing of the years, but the court (or in former times the jury) can examine the highway and decide whether it meets the test or not. The highway authority can, by periodic inspection, preventive maintenance and repair, keep the highway in accordance with the necessary standard. If it does not, it can be ordered by the court under section 56(2) of the Act of 1980 to "put it in proper repair within such reasonable period as may be specified in the order." 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, which would apply not merely to fast carriage roads but to all highways, including pavements and footpaths. And the machinery of the Act for "Enforcement of liability for maintenance" (as sections 56-58 are headed) would hardly be appropriate. There would be no question of ordering the highway authority to comply with its duty. In the present case, the highway would have been properly maintained except for the period between when the ice formed at dawn and when it melted an hour or two later.

    The majority of the Court of Appeal in Haydon v. Kent County Council [1978] Q.B. 343 were aware of this difficulty and tried to meet it by reformulating the scope of the duty. Goff L.J. said, at p. 363, that the highway authority would be in breach of duty only if:

"having regard to the nature and importance of the way, sufficient time [has] elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence."

    The judgment of Shaw L.J. on this point is obscure but he is generally taken as having concurred in the test propounded by Goff L.J.

    It seems to me, my Lords, that this test avoids the extravagant consequences of extending the absolute duty only by sacrificing its absolute character. Instead of considering only the question of whether the state of the highway satisfies the standard of being "reasonably passable for ordinary traffic" it shifts attention to the question of whether it was reasonable of the authority to have failed to take remedial measures. In Griffiths v. Liverpool Corporation [1967] 1 Q.B. 374, 379, Diplock L.J. interjected in the course of argument: "The defendants had a statutory duty to maintain the highway and the question of reasonable care has no relevance." That is certainly not true of the statutory duty as formulated by Goff L.J. It appears to incorporate considerations more appropriate to the statutory defence under section 58. And although it is said that there is a breach of duty when it is "prima facie" unreasonable not to have taken remedial measures, I find it hard to imagine a case in which the highway authority could be held in breach of duty but succeed in making out the statutory defence.

    Judges called upon to apply the test have since pointed out that it gives no guidance on the matters to be taken into account in deciding whether the highway authority was unreasonable in failing to take remedial measures. Does one take its resources into account or not? If the question is whether the conduct of the authority was unreasonable, it would be strange if resources could not be considered. But this would be contrary to the way in which the absolute duty has always been construed. In Cross v. Kirklees Metropolitan Borough Council [1998] 1 All E.R. 564, 575, Sir Ralph Gibson said that he thought that in Haydon v. Kent County Council [1978] Q.B. 343 Lord Denning M.R. had been right. He added:

"If section 41 is to be construed as capable of imposing a duty to take remedial measures to deal with ice and snow on a highway, or footway, which is in good physical repair, so that whether in particular circumstances that duty has arisen is to be decided 'as a question of fact and degree,' it would seem that the facts relevant to determining whether the duty has arisen would be essentially similar to those relevant to deciding whether a breach of the duty has been proved and whether the statutory defence under section 58 has been made out. Parliament did not define those facts for the purpose of section 41.

The concept of the passing of sufficient time to make it prima facie unreasonable for the highway authority to have failed to take remedial measures must presuppose some idea of the amount and nature of the resources for dealing with snow and ice which are or ought to be available to the authority, and of the order of priority among different carriageways and footways which guides or which ought to guide the authority; and of the necessary degree of urgency in using those resources. No such guidance is given in the statute with reference to proof of the arising of the duty."

    In the present case in the Court of Appeal, [1999] R.T.R. 210, 217, Hutchinson L.J. quoted these remarks and said that he agreed with them. He added:

"It seems to me that the application of the test which these authorities lay down is a task beset with difficulties attributable to the imprecision of the formula and lack of any guidance as to the criteria to be taken into account."

    Mr. Ross met this formidable criticism by submitting that there should indeed be an unqualified and absolute duty to maintain the roads free of ice or snow, which could be a danger to safe passage. Thus the simplicity and consistency of the old law would be maintained. If it appeared to set impossibly high standards for highway authorities, the answer lay in the statutory defence under section 58 of the Act of 1980. That would enable them to resist claims in all cases except when they had acted unreasonably.

    My Lords, it seems to me that this is a view which Parliament might take. There is obviously a case for saying that a person who suffers a catastrophic accident as a result of the presence of ice which, in modern conditions, the highway authority could reasonably have prevented or removed, should have a remedy. I say nothing about whether the facts of the present case fell within this description, a question on which the Court of Appeal were divided. But I am quite satisfied that Parliament has not yet provided such a remedy and that, in debating whether to do so, it is likely to wish to consider the question of fairness to other plaintiffs who have suffered injuries otherwise than by negligence as well as the resource implications for local authorities and the criteria by which their efforts should be judged. If I may quote Lord Denning M.R. in Haydon v. Kent County Council [1978] Q.B. 343, 360:

"If section 44 [of the Act of 1959] meant that the highway authority were under a duty - an absolute duty - to remove snow and ice, they would be given an impossible task. Section 44 applies to all highways without exception. It applies not only to major roads but also to minor roads. It applies to main roads and country lanes. It applies to by-ways, bridle paths, and footpaths. It applies to all such ways, no matter whether they are little used or much used. Every single one of them is likely to become slippery and dangerous when there is snow and frost...Every one of them must be made safe - without any exception - if section 44 is given the wide meaning contended for. The section gives no priority to main roads over country lanes; or to much-used footpaths over little-used footpaths. If the highway authority were bound to clear all those of snow and ice whenever they become slippery or dangerous, they would require an army of men with modern machines and tools stationed at innumerable posts and moving forward in formation whenever there was a severe frost."

    To say that the highway authority can rely upon the defence under section 58 does not seem to me good enough. Section 58 may give the authority a defence to a claim for damages but it is still in breach of the absolute duty. I do not think it is an admissible construction of section 44(1) of the Act of 1959 (and therefore of section 41(1) of the Act of 1980) to hold that it was capable of judicial extension to create a duty not only more onerous but different in kind from that which had existed in the past.

    I would allow the appeal and restore the judge's decision to dismiss the action.

LORD CLYDE

My Lords,

    I have no difficulty in holding that section 41 of the Highways Act 1980 imposes an absolute duty on the highway authority. There is no hardship in so holding since the section has to be taken along with section 58 which provides a defence that reasonable care has been taken by the authority. The scheme of the provisions is in its broad effect that the authority should be liable for damage caused by a failure to take reasonable care to maintain a highway, but the injured party is not required to prove the failure to take reasonable care. It is for the authority to prove that it has exercised all reasonable care. Such a reversal of the onus which would have been imposed on the plaintiff in an action for damages at common law is justifiable by the consideration that the plaintiff is not likely to know or be able readily to ascertain in what respects the authority has failed in its duty. All that the plaintiff will know is that there is a defect in the road which has caused him injury and it is reasonable to impose on the authority the burden of explaining that they had exercised all reasonable care and should not be found liable.

    But the question in the case is precisely what is the meaning and scope of the absolute duty. The point is not immediately solved by the terms of the definition in section 295 of the Act because the ambiguous term "includes" is used. Maintenance certainly includes the work of repair and the taking of measures which will obviate the need to repair, to forestall the development of a defect in the road which will, if allowed to develop, require remedial action. The standard of maintenance is to measured by considerations of safety. The obligation is to maintain the road so that it is safe for the passage of those entitled to use it. But the question still remains as to precisely what is the scope of that maintenance. It certainly requires that the highway be kept in a structurally sound condition. The question is whether, as the respondent claims, it extends also to the removal of ice which has formed on the surface of the road as a natural consequence of the weather. The appellant contends for a narrower construction which excludes the removal of ice, or indeed of snow.

    The matter is one of construction of the statutory language. I have come to the conclusion that the narrower construction is to be preferred. The obligation relates to the physical or structural condition of the highway. To use the words of Diplock L.J. in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1496-1497 in a passage quoted by Lord Denning M.R. in Haydon v. Kent County Council [1978] Q.B. 343, 357 the obligation is to keep the highway:

"in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition."

I can note quite briefly the reasons for the view which I have reached.

    First, in the ordinary use of language I would not strictly describe the removal of ice from the surface of the road as maintaining the highway. By the highway is meant the stretch of land over which people may pass rather than the rights of passage which they may enjoy. The removal of ice may be a maintaining of the use of the highway or facilitating or easing the access which the highway provides, but it is not a maintaining of the highway itself. Where the physical surface of a road has become smooth, giving rise to a danger in wet conditions, the addition of sand to supply the grittiness which the roughness of the fabric of the road formerly possessed can be described as repair or maintenance. That was the case in The Dublin United Tramways Company Limited v. Fitzgerald [1903] A.C. 99, 109-110 where, as Lord Robertson observed, the surface of the roadway was part of the structure or fabric of the roadway, and, if the authority used materials having a kind of surface which would be in bad condition in wet weather "they must from time to time supply by sand to this material what other materials might of themselves in all conditions supply by the roughness of their own surface." But that situation is quite different from the removal or dissolution of something which has been superimposed upon the surface of the highway where the surface in itself is in good condition.

    Secondly, a consideration of the law relating to the maintenance and repair of highways up to the passing of the Highways Act 1959 supports the adoption of the narrower construction. On this I would refer with gratitude to the review of the earlier law which has been presented by my noble and learned friend Lord Hoffmann in the speech which he has just delivered. Particularly striking to my mind is the express reference in section 298 of the Act of 1959 to the "exemption from liability for non-repair available to the highway authority immediately before the commencement of this Act." If the scope of the duty of maintenance extended beyond matters of repair it would seem extraordinary that there should be no exemption from liability for those further matters and exemption preserved only for failures in repair. The section more probably reflects the whole scope of what was intended to be comprised in the duty of maintenance.

    Thirdly, I find some assistance in the meaning attributed to the word "maintain" in section 25(1) of the Factories Act 1937. That section provided that "All floors…shall be of sound construction and properly maintained." Of course the context and the precise phraseology are different, but the purpose of securing the safety of a factory floor may be comparable with the purpose of securing a safe highway. In Latimer v. A.E.C. Ltd. [1953] A.C. 643 the plaintiff slipped due to the presence of a film of oil on the surface of the floor. Lord Reid observed, at p. 656:

"The question then is whether section 25(1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even so, keeping the surface of a floor free from dangerous material does not appear to me to come within the scope of maintaining the floor."

    Fourthly, if, as I have held, the duty imposed upon the authority is an absolute one, then it would seem appropriate not to adopt any wider construction of the scope of the duty than is necessary. To hold that they suddenly become in breach of duty in respect of all their highways wherever snow falls or ice forms on them so as to create a danger and they correspondingly become no longer in breach when perhaps a few hours later on a rise of temperature the snow or ice dissolves and the road is again safe seems to me to be bordering on the absurd. Of course if the matter was one of an action for damage, section 58 might avail to provide a defence in such a case. But while that section may mitigate the effect of the absolute nature of the duty under section 44 it does not determine the scope of that obligation. It seems to me that some at least of the problems to which snow and ice on highways may give rise are intended to be met by section 150, but that section does not assist the plaintiff in the present case.

    Reference was made during the hearing to the corresponding statutory provisions in the Roads (Scotland) Act 1984 and I should make some comment about the position in Scotland. Section 1(1) of that Act imposes a duty on a local roads authority to manage and maintain the roads entered on the local list of public roads. In terms of section 151 "maintenance" includes, among other things "repair." But express provision is made by section 34 for the clearance of snow and ice in these terms:

"A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads."

It would seem from this that the obligation to maintain in section 1 is not intended to include the clearance of snow or ice. The construction of the word "maintain," subject to the full terms of the statutory definition, may thus be in line with the construction of the corresponding language of the Highways Act 1980. In Scottish practice a roads authority may be open to liability for personal injury caused by the presence of snow or ice making the passage of pedestrians or vehicles over pavements or roads unsafe. An example, where in the circumstances the claim failed, can be found in Grant v. Lothian Regional Council 1988 S.L.T. 533. The claim there was brought both under section 34 and at common law.

    It might be thought that there should be a liability upon a highway authority in England and Wales for damages in the event of injury occurring through a failure to take sufficient measures to preserve the safety of the highways under conditions of ice and snow. But there is no remedy there available at common law and if the statute is construed in the way I have preferred there is no remedy under the statute. Attempts to achieve such a result by construction seem to me to involve a straining of the statutory language beyond what it can reasonably bear. If a remedy, with the financial consequences which it may involve, is desired, that is a matter for Parliament.

    I would allow the appeal.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

    I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Hoffmann.