Section 41 (1A) of the Highways Act 1980 states “a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.” [ref.1]. The Well Managed Highways Infrastructure Code of Practice (2016) [ref.2] outlines how this duty can be met through the application of a risk based approach. To satisfy their duties, Highway Authorities are required to do all that is reasonably practicable to manage the network effectively to manage risk and keep traffic moving. Highway Authorities should establish contingency plans for dealing promptly and effectively with unplanned events, such as unforeseen weather conditions, as far as is reasonably practicable.
On the 22nd November 2015 the claimant and first defendant were involved in a road traffic collision on a road in North Yorkshire. The Fiat Punto car the defendant was driving allegedly slid on black ice, left the road and collided with a tree. This event resulted in the claimant, who was a passenger in the car, suffering a serious brain injury.
The first defendant (the driver) blamed the second defendant (North Yorkshire Council) for failing to ensure the road was free from ice, issuing Part 20 proceedings against it for a contribution / indemnity, with the claimant adding the second defendant to the claim. The first defendant then settled the claimants claim out of court. The subsequent trial considered whether the first defendant was entitled to an indemnity or contribution from the second defendant.
During the trial evidence was heard that while the first defendant’s actions were “accidental but culpable” the Highway Authority’s Winter Service Manual (WSM) lacked any guidance on how to respond to ad hoc requests for interventions, relying on there being “exceptional circumstances”, however these were not defined in the WSM. As a consequence the Highway Authority had failed to act despite receiving 2 separate requests from Police Officers to deploy gritters earlier that evening following unrelated accidents on the same road.
Consequently the court ruled that the Highway Authority should bear the greater share of liability and made an apportionment allowing the first claimant to recover two thirds of the claim settlement [ref.3].
The ruling in the case of Smithson v Lynn and North Yorkshire County Council highlights the need for Highway Authorities to ensure that all aspects of their Winter Service provision enable them to satisfy the duties placed upon them by Section 41 (1A) of the Highways Act 1980. Winter Service Manuals should clearly define what are regarded as urgent ad-hoc requests or exceptional circumstances and detail the arrangements and communication systems to ensure that appropriate and effective actions are initiated.
We offer a number of services to support Local Authorities identify and meet their liability risks relating to them being Highways Authorities, all of which can be delivered remotely. These include;
The Highways Risk Management review is designed to review the adequacy of highway strategy and policy in the following key areas:
The Winter Service review is designed to review the adequacy of Winter Service provision in the following key areas.
We can provide a range of Risk Management training courses that can be tailored to your requirements in terms of delivery, duration and tailored content covering all aspects of risk.
In addition we offer a range of 1 hour Bite Size training courses on a number of Risk Management topics.
Please contact your Risk Control Consultant or RMP Account Director to obtain further information or discuss these in more detail.