It is estimated that, each year on average, the various highways authorities in the UK grit 40% of the roads they are responsible for, covering a total of 80,000 miles and using, in a cold winter, around 1.2 million tonnes of salt.
As you would probably expect, councils do have a legal duty to keep roads clear of snow and ice. This hasn’t however always been the case, with the House of Lords ruling in 2000 that although there was a duty to keep roads in a state of repair that meant they were safe, there wasn’t a specific obligation to remove snow and ice from a road (Goodes v East Sussex CC  1 WLR 1356).
Following this decision, some councils felt they were not under any duty whatsoever when it came to snow and ice, to grit roads they were responsible for. Consequently, Parliament stepped in and amended the Highways Act 1980 to include section 41(1A), which provides –
“a highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice.”
This section came into force in October 2003. Since then, Councils can no longer claim they do not have to clear roads of snow or ice.. However, due to the caveat contained in this section along with other considerations, the presence of ice or snow on a road does not necessarily mean a council will be found at fault in the event of a claim being made against them.
In Rhiannon Pace v The City and Council of Swansea (unreported) the judge at Swansea County Court found that ice building up after a road had been gritted did not mean the system for gritting the roads was inadequate and the council discharged their obligation under section 41(1A). The claim failed. Interestingly, the judge also had regard to the potential environmental impact of covering roads in large quantities of salt.
A contrasting decision was given in Smithson v Calderdale MBC (Manchester County Court, 15th May 2015) with the court finding that it would have been reasonably practicable for the council to take heed of changes in the weather conditions and dispatch gritter trucks. The claim succeeded. In reaching this decision the court took into account the fact the accident occurred on a motorway and not a quieter road.
As is often the case with claims for negligence, it seems that the effect of the amendment to the Highways Act 1980 is such that liability will be difficult to establish if there is a reasonable system in place. What is reasonable is of course dependent on the specific facts of the case and the cases outlined above show that the courts will look closely at what systems are in place and when deciding whether to hold a council at fault.
Gerard McDermott QC Ltd
7 Stamford Street
Stalybridge SK15 1JP