Royaume-Uni & Europe
Assurance et réassurance
The High Court has held that a local authority failed to take ‘reasonably practicable’ actions to remove ice on a section of road known for collisions. North Yorkshire County Council had received two separate requests from police to grit the area, however failed to do so. Whilst the negligent driver had been travelling at excessive speeds, the Council was held to be two thirds liable for the injuries sustained by his passenger.
Michael Smithson v Bradley Lynn (1) North Yorkshire County Council (2)  EWHC 2517 (QB)
As winter approaches, we move into the season of slips and skids on roads and walkways. Last year we highlighted the obligations of employers and occupiers to protect employees and visitors from the risk of slips and falls. This recent decision considers a council's duty under Section 41(1A) of the Highways Act 1980 to ensure safe passage along a highway is not endangered by snow or ice.
The Claimant was a passenger in the Defendant’s car, who lost control of his car and crashed into a tree. The Claimant's claim was settled by the Defendant, who sought a contribution from the local authority, North Yorkshire County Council (“the Council”). It was alleged that the Council had failed to prevent ice forming on the road, and this was a contributing factor in the collision.
There were four other incidents in vicinity of the accident location both the night of the accident and the previous evening. After two of the incidents, local police had requested the road be gritted, yet the requests were refused. After the third incident, the attending PCSO placed two "Police Slow" signs to warn motorists of the danger.
The parties agreed that the burden of proving that the Council, the deemed highway authority under section 41 of the Highways Act, had acted in accordance with the standard of ‘reasonable practicability’ rested with the Council.
The Council denied any liability for the incident, stating "It would not be in accordance with [the Council's] policy to respond to an individual request for gritting save for exceptional circumstances, such as where treatment was required to enable access for emergency vehicles to the scene of an accident". Whilst it was acknowledged that the policy did not detail what constituted exceptional circumstances, the Duty Manager did not consider what had been reported to fall within that phrase.
The Defendant argued it was reasonably practicable to spot grit that night but the Council had adopted a blanket policy preventing it from doing so. The Defendant submitted he was driving within the speed limit and the loss of control of the vehicle could not be avoided given the road surface. The Council had a statutory duty to ensure safe passage was not endangered by ice and snow subject to reasonable practicability.
The expert for the Defendant contended that an inspector should have been sent to look at the condition of the road after the police requested assistance. The Council’s expert disagreed, arguing it was very unlikely any highway authority would send an inspector out of hours.
If any fault did lie with the Council, then it argued that substantive responsibility for the accident lay with the Defendant. Driving at 50mph was excessive for the conditions he knew existed at the time and there was appropriate signage to warn drivers of the upcoming bend and the aforementioned "Police Slow" sign.
Liability for the accident was apportioned one third to the Defendant, two-thirds to the Council. The Defendant should have known ice on the roads was foreseeable. Travelling at 50mph was excessive (albeit 10mph less than the limit) and a more appropriate speed was 30mph. However, if the Council had spot gritted around midnight it is likely that the Defendant would not have lost control of his vehicle. The road was not due to be gritted until around 7.00 the following morning and "so it might be said that it was foreseeable that another accident may occur during the intervening eight hours".
His Honour Judge Gosnell found as fact that the Council was informed about two road traffic collisions on the evening of the accident. He stated the "assessment of the quantum of risk involved [the Council] assessing how likely it was that a road traffic accident might occur… if it was not gritted before the planned post-salting route the following morning and perhaps also how serious that accident might be in terms of the potential for injury".
The Judge accepted that the Duty Manager's "rather constricted definition" of exceptional circumstances meant that "even a history of two road traffic accidents on one stretch of road did not meet the test". The way in which the Council interpreted 'exceptional circumstances' was "unduly restrictive". HHJ Gosnell continued that requests from "police officers should be given very serious consideration because they are likely to be concerned about potential harm from further accidents".
The Council had failed to prove it had done what was reasonably practicable. There was no real evidence there "would have been any significant adverse effect from sending a gritter out to spot grit" the location. The Judge therefore found that the Council was in breach of its duty under s41 (1A) of the Highways Act 1980.
What can we learn?