A claimant who was brain damaged as a result of the car he was travelling in as a passenger skidded on ice on the road and collided with a tree succeeded in holding the local authority as responsible in their capacity as the highways authority under the Highways Act 1980.
In the early hours of 22 November 2015, Mr Smithson was travelling as a passenger in a vehicle being driven by Mr Lynn when the vehicle suddenly left the road and struck a tree. As a result of the collision, Mr Smithson sustained significant brain injury. He brought proceedings against Mr Lynn alleging he had driven too quickly and without adequate control. Mr Lynn denied liability and maintained that the vehicle had left the road because of black ice. He also brought indemnity / contribution proceedings against the North Yorkshire County Council (“the Highways Authority (HA)) as the Highway Authority under section 41 Highways Act 1908. Mr Lynn alleged that the HA had ignored two requests made by police during the late evening of 21 November 2015 to treat the road for ice because there had already been two accidents along the same road.
The court found both Mr Lynn and the HA in breach of their duty of care to Mr Smithson, ordering a contribution of two thirds to be made by the HA and one third by Mr Lynn.
In examining the question of the HA liability, the court considered the question whether unsafe passage arising from the presence of ice on the road on 21 / 22 November 2015 arose as a result of a failure to take all “reasonably practicable steps” under section 41 Highways Act 1980. The court held that the HA had to consider the matter of deciding where the balance lay between the likelihood and severity of a road accident occurring against the cost and inconvenience of reducing that risk. It found that because the HA had been told of two prior accidents on the same road earlier in the same night, it was clear that the road was a danger with a foreseeable risk of further accidents occurring between the time of the police reports and the time that the road was due to be treated for ice at 7am on 22 November 2015. The court put great weight on the request by police to prevent further accidents and that there was no real evidence put forward by the HA that driver and gritter could not have been found to treat the ice on the road.
The court held that this amounted to a breach of duty of its care to Mr Smithson as the claimant. It also found that had the HA carried out its duty, it would have spoken to the police making the request concerning areas of the road that required attention, even though by doing so the HA would depart from its Winter Maintenance Policy.
Claims against a local authority can be difficult to win but this judgment shows that a local authority cannot always rely upon its stated Winter Maintenance Policy for accident happening in snow and ice in circumstances where they are put on notice by a responsible body that a danger to safety on the highway exists. Nor can they rely upon a defence that even if it had taken all reasonable care this might not have prevented the accident.
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