PROVING THINGS 183: WHERE DOES THE BURDEN OF PROOF LIE IN A HIGHWAY MAINTENANCE CASE?

In Smithson v Lynn & Anor [2020] EWHC 2517 (QB) HHJ Gosnell (sitting as a High Court Judge) found a highway authority partially responsible for  an accident in failing to maintain the roads.  The are interesting issues relating to the burden of proof of establishing a “reasonable practicability” defence and also whether the defendant could raise the issue of causation in relation to a breach of statutory duty in these circumstances.

THE CASE

The claimant was injured in an accident where the first defendant was the driver. The first defendant had skidded on ice. The first defendant blamed the local authority as highway authority and joined it as a Part 20 defendant. This led to the claimant joining the local authority into the action as a second defendant.  The claimant settled the matter with the first defendant and the action proceeded between the two defendants on the question of whether the highway authority was responsible and/or partially responsible because it had failed to respond adequately to reports that the road in question was treacherous.

THE JUDGMENT

The judge found that the local authority was liable to contribute two-thirds towards the damages.  The judgment considers two issues: (i) where the burden of proof lies when the issue of reasonable practicability is raised (on the defendant); (ii) whether the defendant, having been found to be in breach of statutory duty, could raise the issue of causation (it can’t).  The judge reviewed the facts and the arguments.

    1. Analysis
In evidence Mr Smith confirmed that whilst resources, in terms of both finance and personnel and equipment are important in deciding what the extent of the Winter Service Manual should cover the decision to refuse to spot grit on the night in question was not made because the Second Defendant did not have the resources to do it. The annual budget for the Winter Service programme is about seven million pounds and in recent years on average it has cost around eight million pounds. The obligation set out s 41(1A) above to ensure that safe passage along a highway is not endangered by snow or ice is not absolute, as it is qualified by the phrase “so far as is reasonably practicable”. This is a phrase which has been repeatedly the subject of judicial interpretation over the years, mainly in the field of health and safety in the workplace.
    1. For many years the judgment of the Court of Appeal in Edwards v National Coal Board [1949] 1 KB 704 was thought to contain the accepted definition, but this was revisited by the Supreme Court in Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003. The majority view was expressed by Lord Mance as follows:
“81.Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification “so far as is reasonably practicable” enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. It said (para 89):
“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.”
Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection.
82. In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJ’s statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.”
    1. Whilst the Supreme Court disagreed with the Court of Appeal about whether it was appropriate to take into account current general knowledge and standards as part of the assessment of what is reasonably practicable they did not disagree with Lady Justice Smith’s formulation of the test involving a computation in which the quantum of risk was placed in one scale and the sacrifice, whether in money time or trouble , involved in the measures necessary to avert the risk was placed in the other. In the current case the assessment of the quantum of risk involved the Second Defendant assessing how likely it was that a road traffic accident might occur on Rascelf Road 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. In the other side of the scale would be put how expensive or difficult it might be to arrange an ad hoc gritting of the problem area coupled with any potential impact on the Winter Service programme if that was done.
    2. In order to properly assess the quantum of risk the Second Defendant had to take into account the information provided to it by North Yorkshire Police. In relation to Incident 4 the court can be confident about that information because there is a transcript of the telephone call between the control room for the police and Selby Swing Bridge the out of hours service for the Second Defendant. I have set out a summary of this conversation in paragraph 11 above. It certainly involved a large patch of black ice, possibly caused by a water leak, and there had been “quite a bad accident”. Surprisingly, the fact that there had been an accident does not appear to have been relayed to Mrs Charlton if her note set out in paragraph 12 above is an accurate summary of what she was told.
    3. This raises the question whether she was also given all the relevant information in relation to Incident 1. The police record of this incident is treacherous road conditions between Easingwold and the bridge over the A19.” She had “gone round a corner and was hardly able to stop as she came across a road traffic collision between a car and two motorbikes“. Mrs Charlton was told that the road was icy, but she was not told of any road traffic accident. In my view this is very odd. The purpose of the call from the Police to Selby Swing Bridge was to seek to persuade them to send out a gritter because a police officer had formed the view that the road conditions on Rascelf Road were treacherous. On the balance of probability it seems to me more likely that the fact that there had been a collision between a car and two motorcycles would be part of the information which the police passed on to Selby Swing Bridge as a means of attempting to persuade the Second Defendant to spot grit Rascelf Road. I cannot say whether this information was passed on to Mrs Charlton, but I accept her note suggests that it was not. I find as a fact however that the Second Defendant was told of two road traffic accidents having occurred on Rascelf Road on the evening of 21st November 2015. In terms of the quantum of risk at just after 11pm, Rascelf Road was not due to be gritted until about 7 am the next morning, and so it might be said that it was foreseeable that another accident may occur during the intervening eight hours.
    4. In the other side of the scale had to be put what the cost of ameliorating that risk might be in terms of money and physical resources. I had no evidence what the monetary cost might be but I was aware that the Second Defendant had a contract with Ringway Infrastructure Services who provided the gritters and drivers and there would have been a financial cost to asking them to spot grit in addition to the programmed routes. Similarly, of the 86 gritters and 150 drivers the Second Defendant’s witnesses could not say that no-one was available to carry out spot gritting if it had been ordered.
    5. Mrs Charlton’s reasons for refusing the request are summarised in paragraph 24 above. One of them was if treatment was ordered, it would have used up valuable resources preserved for post- salting the following morning. I accept that it would have used up some salt and grit, but there was no real evidence that the gritter and driver could not have driven their normal route the next morning. I accept that theoretically there may be an issue around driver’s hours but there was no evidence either that a driver called out around midnight could not work the next day , or even if he could not, that another of the 150 drivers could not have taken his place.
    6. I accept that by hers and Mr Smith’s rather constricted definition of exceptional circumstance even a history of two road traffic accidents on one stretch of road did not meet the test. The fact that a water leak had been reported appeared to Mrs Charlton to be another reason to refuse the request because Yorkshire Water had been asked to deal with the leak. I find this puzzling as if there had been a water leak which was spilling onto a road on a night where temperatures were likely to fall to minus 5 Celsius , in my view this would increase the risk of ice on the road forming and the potential for accidents to occur as a result.
    7. It is obviously not reasonably practicable for the Second Defendant to grit every mile of public highway in it’s area every time temperatures are likely to fall below freezing point. The Highway experts agreed that in general terms the Winters Services Manual represented a reasonable compromise between the duty to keep the highways safe without imposing a rigid obligation to keep all highways free from ice and snow. The Manual does however cater for the fact that ad hoc requests may be made for gritting to take place outside the planned programme in paragraph 11.0
Requests for alleviation of bad road conditions
Such requests received at County Hall will be passed to the appropriate Area. It will be the responsibility of each Area to determine the priority of individual requests relative to the prevailing situation.”
    1. The manual does not of course set out how the priority of individual requests should be managed. The test of “exceptional circumstances” has arisen over time as a way for the Second Defendant to minimise the effect that such requests might have on the planned gritting programme. Obviously, if every request from a member of the public had to be acted on, I accept that this would place an unreasonable burden on the Second Defendant and might well result in the planned programme descending into chaos. Some sort of value judgment is necessary to separate the serious requests from the trivial ones. The Highways experts agreed that it could be reasonable to have a test of exceptional circumstances depending on the factual situation at the time.
    2. This phrase appears in other jurisdictions, in particular where a court is considering whether to exercise the Barrell principle to revisit or change a judgment. In Cie Noga D’Importation et d’Exportation SA v Abacha [2001] 3 All ER 513, Rix LJ, sitting in the Commercial Court, referred at para 42 to the need to balance the concern for finality against the “proper concern that courts should not be held by their own decisions in a straitjacket pending the formality of drawing up the order”. He went on, at para 43:
“Provided that the formula of ‘exceptional circumstances’ is not turned into a straitjacket of its own, and the interests of justice and its constituents as laid down in the overriding principle are held closely to mind, I do not think that the proper balance will be lost. Clearly, it cannot be in every case that a litigant should be entitled to ask the judge to think again. Therefore, on one ground or another the case must raise considerations, in the interests of justice, which are out of the ordinary, extraordinary or exceptional. An exceptional case does not have to be uniquely special. ‘Strong reasons’ is perhaps an acceptable alternative to ‘exceptional circumstances”. It will necessarily be in an exceptional case that strong reasons are shown for reconsideration.”
    1. The warning not to turn the formula of “exceptional circumstances” into a straitjacket of its own is in my view relevant to this case. The way in which Mrs Charlton and Mr Smith interpreted this phrase was, whilst consistent with each other, unduly restrictive. When asked for examples of exceptional circumstances they gave three examples: an emergency vehicle being unable to reach the scene of an accident; an emergency vehicle being unable to reach the home of a patient requiring urgent treatment and the road being blocked by a vehicle and a recovery truck being unable to reach it. In my view, this is too narrow and restrictive view of what fairly could be considered “exceptional circumstances”. Whereas a phone call from a concerned resident about ice on a suburban cul-de-sac would clearly not be exceptional two phone calls from police officers about the same stretch of road describing conditions as treacherous and reporting two separate road traffic accidents probably is. I take into account that when a police officer requests a highway department to exercise their discretion to spot grit , he or she is probably doing so because of concern about the safety of the public and the potential risk to life and limb of further road traffic accidents. In my view, requests of this nature from police officers should be given very serious consideration because they are likely to be concerned about potential harm from further accidents.
    2. It is clear from the five incidents which occurred on Rascelf Road overnight that the Second Defendant as highway authority had not ensured that safe passage along that road was not endangered by snow and ice. The only issue is whether they had done what was reasonably practicable. I have found that the burden of proving that fell on the Second Defendant and in my judgment, it has failed to do so. It has a system which is prepared to entertain ad hoc requests for gritting outside the planned programme but has then sought to place an unnecessarily restrictive test before being prepared to exercise this discretion. Whilst it is obvious that if too wide a test is applied the planned programme of gritting could be seriously impacted there was no real evidence that there would have been any significant adverse effect from sending a gritter out to spot grit Rascelf Road that night. This was a situation where the quantum of risk was easily identifiable in terms of the possibility that a serious road traffic accident may occur if the road was not treated but the likely cost in terms of finance and manpower to ameliorate that risk was unspecified in evidence before the court but did not seem to me to be in principle, particularly significant. I therefore find, on balance of probability that the Second Defendant was in breach of their statutory duty under s 41 (1A) of the Highways Act 1980.
    3. The Second Defendant raises a causation point. It submits that even if Mrs Charlton had either sent out an inspector or a gritter on the night in question they would have been sent to the junction of Alne Road and Rascelf Road because that is where the police mistakenly told Selby Swing Bridge the Fourth Incident occurred. In paragraph 25 of this judgment I have set out Mrs Charlton’s evidence on what she would have done had she given further consideration to spot gritting Rascelf Road. She said she would have spoken to the reporting police officers. I consider that would have been a wise decision because they could have given further information about the situation on the ground as they saw it and how comparatively serious the patch of ice was. If she had done that I find that inevitably they would have corrected the mistake about the actual location of Incident 4. She would also have learnt that at least two, possibly three accidents had already taken place at this location. Even if I am wrong about this and an inspector was sent out to carry out a local risk assessment at the junction of Alne Road and Rascelf Road I find that having found nothing of note there he would have driven further along Rascelf Road where he would have seen the police slow signs and the large patch of ice. The causation argument is therefore not made out in fact.
    4. I also believe that the Second Defendant is not entitled to raise this causation point in law. A similar argument was attempted by the Defendant in Wilkinson v City of York Council [ 2011] EWCA Civ 207. The Defendant in that case attempted to argue that even though the court might find that the Highway Authority had not done all that was reasonably necessary to keep the highway in good repair the Claimant still had to show that if due care had been taken the accident would not have occurred. Lord Justice Toulson relied on a much more venerable decision to make his point:
“Mr Limb’s argument amounts to saying that section 58 makes it now incumbent on a claimant in every case of this kind to prove that there was not merely a breach of the duty to maintain but a negligent breach of the duty to maintain. That proposition was rejected by this court in Griffiths v Liverpool Corporation, which Lord Denning cited. In that case, Diplock LJ said at 390-391:

“Sub section 2 [of section 1 of the Highways (Miscellaneous Provisions) Act 1961, which is now section 58 of the 1980 Act] does not in my opinion make proof of lack of reasonable care on the part of a highway authority a necessary element in the cause of action of a plaintiff who has been injured by danger on the highway. What it does is to enable the highway authority to rely upon the fact that it has taken reasonable care as a defence — the onus of establishing this resting upon it. A convenient way of expressing the effect of the subsection is that it does not qualify the legal character of the duty imposed by subsection (1) but provides the highway authority with a statutory excuse for not performing it…

Unless the highway authority proves that it did take reasonable care the statutory defence under subsection (2) is not available to it. Nor is it a defence for the highway authority to show that even if it had taken all reasonable care this might not have prevented the damage which caused the incident.”

Whilst the present case concerns s 41(1A) rather than sections 41 and 58 of the Highways Act 1980 it seems to me that the court can apply the same logic.
    1. Indemnity and Apportionment
I have considerable sympathy with the First Defendant having lost control of his vehicle on what he perceived to be black ice. The photographs taken about an hour and a half after the accident by Sergeant Lumbard are probably not a fair reflection of what the road looked like at the time of the index accident. Several emergency vehicles had driven to the scene and could well have churned up the ice, creating a more slushy granular look to the road than had been present previously.
  1. I am unable to accept however that in the three hours he had been driving before this accident occurred, he had not seen any ice on any of the roads he had travelled on. It was a very cold night and there had been rainfall in the days leading up to this accident. He must have covered some mileage in the three hours before the accident and he admitted that he had been driving on some country roads before Rascelf Road. Given the temperature and the warning light on his dashboard he should have been driving very cautiously because he should have known that ice on the roads was foreseeable.
  2. The First Defendant was approaching the bend at this part of Rascelf Road at about 50 mph. His headlights were on full beam and the road was straight for 200 yards before the bend. He should have been able to see the upcoming bend at this point and reduced speed. There was a sign warning of the bend about 110 metres from the tree which was the second opportunity to slow down. There was then the Police Slow sign which he would have been able to see perhaps a hundred metres before he reached it. It would appear that he first touched his brakes after he passed that sign and the skid which would result in his eventual loss of control started. I find in the light of these opportunities he was travelling too fast at 50 mph even though he was in fact driving 10 mph less than the National Speed Limit. He should have reduced speed to about 30 mph before reaching the Police Slow sign, and had he done so it is likely that he would not have hit the tree. I therefore find that this is an appropriate case for apportionment.
  3. It is clear that the negligence of the First Defendant and the breach of statutory duty by the Second Defendant both have causal potency in this case. If the First Defendant had driven more slowly then it is likely that no injury would have been suffered by the Claimant and if the Second Defendant had spot gritted the accident scene around midnight it is unlikely that the First Defendant would have lost control of his vehicle. Section 41 (1A) of the Highways Act seeks to put responsibility on the Highways Authority for ensuring that roads are kept free from ice so far as practically possible. It is an obligation with focus on public safety. The First Defendant’s negligence can be characterised as an accidental but culpable error of judgment. Against this background it would be right for the Second Defendant to bear more of the blame than the First Defendant. If find that the Second Defendant is two thirds to blame and the First Defendant one third to blame. Liability will be apportioned accordingly.