Snow and Ice on the Highway – the extent of the s.41(1A) duty
March 3, 2021
Kerron Rohrer provides a useful guide on Section 41(1A) of the Highways Act 1980.
Section 41(1A) of the Highways Act 1980 contains a duty:
“to ensure, so far as reasonably practicable, that safe passage along a highway is not endangered by snow or ice”.
It was introduced into the Highways Act 1980 in response to a decision made by the House of Lords in Goodes v East Sussex CC  1 WLR 1356 which, in a nutshell, determined that the maintenance duty under s.41 of the Highways Act 1980 did not extend to the removal of surface-lying material such as snow and ice.
The now-amended provision of s.41 provides a skeletal legal basis for understanding the parameters of the duty of Highway Authorities to prevent the dangerous accumulation of snow and ice on the highway, but no more than that. Fewer appellate cases involving snow and ice have had the effect of leaving the likely extent of a Highway Authority’s duty under this provision harder to discern that the well-trodden path (!) of s.41 tripping claims and the duty on Highway Authorities to inspect and maintain the fabric of the highway.
Most Highway Authorities will have had to respond to claims involving accidents on snow or ice, many will have formulated specific Winter Planning policies (or the like) to provide a framework for action in respect of the accumulation of snow or ice. But the reality is that relatively few Highway Authorities will have significant experience of trial outcomes in these cases, and there is a degree therefore of speculation about whether such policies will stand up to judicial scrutiny.
What is it to be ‘endangered by snow and ice’?
Is the presence of any snow and ice dangerous? Plainly not, because no gritting policy can always remove all traces of snow and ice from the road.
The presence of a small patch of ice on a busy thoroughfare won’t be dangerous simply because a person can slip on it (Rogers v Oxfordshire County Council (2017)). The question is whether ‘safe passage’ along the highway is endangered for ordinary users of the highway.
What is ‘reasonably practicable’ in this context?
In Smithson v North Yorkshire County Council  EWHC 2517, HHJ Gosnell (sitting as a Deputy High Court Judge), applied the long-established test from Edwards v National Coal Board  1 KB 704 that a balance needs to be struck between the risk of injury on one hand and the cost (in terms of time, money and effort) required to eliminate the risk on the other hand.
It is questionable whether the case-law which provides some guidance on how this balance may be struck in employers’ liability cases is appropriate to import into public liability cases involving the limited resources of the state set against its sometimes overwhelming obligations. As an example, a need to prove a ‘gross distortion’ between the cost of steps and the risk being considered was rejected in the case of R (on the application of Friends of the Earth) v Secretary of State for Energy and Climate Change  EWCA Civ 810).
The key for Highway Authorities is to have a policy for control of the risk arising from the presence of ice and snow on the highway which is reasonable. The Scottish authority of Ryder v Highland Council  CSOH 95 is worth reading. Lord Tyre formed the view that the decision of the Council not to operate a 24-hour gritting policy was not properly justiciable, observing as follows:
“It was recognized explicitly in the more recent cases that roads authorities have a discretion to decide on priorities, and that the court should not interfere unless that discretion is unreasonable.”
Most Judges, particular at County Court level, will be slow to investigate the delicate balance between spending priorities that all Local Authorities face, and that mandate prioritisation of certain routes and areas for gritting and snow clearance above others. Finding such a policy unreasonable would amount to considering that it falls outside a reasonable range of responses that a local authority might make to the risks around snow and ice.
On the face of it, s.58 defences do not apply in s.41(1A) cases (and this was the agreed position of the parties in the Smithson case).
Snow/Ice versus moss/mud/algae/gravel
Plainly s.41(1A) applies only to snow and ice, but there have been various attempts to bring claims based on the presence of other materials on the highway which render it unsafe for pedestrians or drivers. Most of these have failed.
Moss, algae and lichen claims are disposed of by reference to the case of Craig Rollinson v Dudley Metropolitan Borough Council  EWHC 3330 (QB). In that case, Haddon Cave J determined that the clearance of moss/algae from the highways of England and Wales would be absurd obligation for Highway Authorities to be obligated by s.41 to undertake.
These cases (as well as gravel, mud etc) are to be contrasted with cases in which something has become bonded to the surface or the substructure of the highway, either perhaps in the form of vegetation/roots (Hereford and Worcester CC v Newman  1 W.L.R 901) or concrete spillage (Thomas v Warwickshire CC  EWHC 722 (QB)) in which the s.41 duty did engage, because the materials had become part of the fabric of the highway.
- The mere presence of some ice or snow on a highway will not breach the s.41(1A) duty. It has to be such amounts or in such a location as to present a danger in respect of safe passage on the highway.
- A Highway Authority is likely to be obligated to have, in response to s.41(1A), a formal (and presumably written) policy in relation to the dangers arising from the presence of snow and ice on the highway.
- A policy will have to be reasonable (and to have been executed) so as to ensure that the local authority has done what it considers reasonably practicable to comply with s.41(1A).
- Courts will likely be slow to determine a policy unreasonable unless it appears illogical, inconsistent on its face or unreasonable in its effect. To that extent a policy ought to explain why particular prioritisation decisions have been taken and deal appropriately with the issue of resource allocation. Obviously, having a system for anticipation of poor weather is par for the course.
- Claims that involve other material lying on the highway, rather than material that has in effect become part of the fabric of substructure of the highway, are likely to fail.
Kerron Rohrer is a member of the Personal Injury: Defence team at Exchange Chambers. Kerron has had significant experience representing Defendants throughout his career. He has built up a balanced practice, and experience with all levels of Defendant work, including representing Defendants in high-value litigation.