Cross v Kirklees Metropolitan Borough Council

JurisdictionEngland & Wales
Judgment Date27 June 1997
Date27 June 1997
CourtCourt of Appeal (Civil Division)

Court of Appeal

Before Lord Justice Evans, Lord Justice Millett and Sir Ralph Gibson

Cross
and
Kirklees Metropolitan Borough Council

Highways - duty of care - authority's duty to maintain not absolute

Duty to maintain highway not absolute

The duty to maintain the highway, imposed on the local authority by section 41 of the Highways Act 1980, was not a duty to keep the highway at all times entirely clear of surface water, snow and ice. The duty to maintain was limited to taking reasonable steps to prevent the formation of ice, or to deal with the ice promptly after it did form to keep the surface reasonably safe.

The Court of Appeal so stated allowing an appeal by the defendant, Kirklees Metropolitan Borough Council, from the decision of Judge Walker sitting in Dewsbury County Court on December 13, 1996 whereby he gave judgment for the plaintiff, Emma Cross, and awarded her damages of £9,325 in her action against the council.

The plaintiff had slipped and fallen thereby sustaining injury on an icy pavement in Dewsbury. The judge found that the council, as highway authority, was liable for breach of its duty under section 41 of the 1980 Act to maintain the highway.

Section 41 provides: "(1) The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty…to maintain the highway.

Mr Hugh M Davies for the council; Mr Timothy Hartley for the plaintiff.

LORD JUSTICE EVANS said that the issue whether the council was in breach of duty under section 41 depended on the meaning of "maintain". Was the council under an absolute duty to maintain the pavement ice-free at all times, in which case, subject to the statutory defence, the duty was broken?

Or was the duty qualified in some way, so that it was limited, for example, to taking reasonable steps to prevent the formation of ice, or to deal with the ice promptly after it did form? If there was any such qualification, what further facts beyond the mere presence of ice must the plaintiff prove to establish a breach of duty, subject always to the statutory defence? And if the duty was so qualified, why was the defence expressed in the way that it was in section 58?

His Lordship noted first that the council's duty under section 41 was simply to "maintain the highway". There was no express reference to safety or to the absence of danger.

But the cause of action which arose when the duty was broken required proof of injury caused by the failure...

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9 cases
  • Goodes v East Sussex County Council
    • United Kingdom
    • House of Lords
    • 15 Junio 2000
    ...was concerned only with keeping the fabric in repair. The majority opinion was followed by the Court of Appeal in Cross v. Kirklees Metropolitan Borough Council [1998] 1 All E.R. 564 and in the present case, reported in [1999] R.T.R. 210. My Lords, I will say at once that I find the judgm......
  • Goodes v East Sussex County Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 Diciembre 1999
    ...relating to the liability of a highway authority under section 41 was to be found in Cross v Kirkless Metropolitan Borough CouncilUNK ((1998) 1 All ER 564). The real thrust of the plaintiff's case was that there had been a culpable failure to prevent the formation of ice when there was ampl......
  • Ablemerge (M) Sdn Bhd v Emville Sdn Bhd
    • Malaysia
    • Unspecified court (Malaysia)
    • Invalid date
  • Sandhar and Another v Department of Transport, Environment and the Regions
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 5 Noviembre 2004
    ...and paths safe for vehicles and pedestrians in bad weather conditions. The law was thus understood – see for example Cross v Kirklees Metropolitan Borough Council [1998] 1 All ER 564 – until the House of Lords decision in Goodes v East Sussex County Council [2000] 1 WLR 1356. It was held ......
  • Request a trial to view additional results

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