Goodes v East Sussex County Council
|LORD SLYNN OF HADLEY,LORD STEYN,LORD HOFFMANN,LORD CLYDE,LORD HOBHOUSE OF WOODBOROUGH
|15 June 2000
|Judgment citation (vLex)
| UKHL J0615-1
|15 June 2000
|House of Lords
 UKHL J0615-1
Lord Slynn of Hadley
Lord Hobhouse of Woodborough
HOUSE OF LORDS
Section 41(1) of the Highways Act 1980 requires a Highway Authority for a highway maintainable at the public expense "to maintain the highway." By Section 329(1) of the Act "…'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
On 14 November 1991 at 7.10 in the morning, Mr. Goodes was driving his car on a highway maintainable by East Sussex County Council. The car skidded on ice on the road and crashed into the bridge. Mr. Goodes was gravely injured. He has claimed damages from the Highway Authority for breach of their duty to "maintain the highway". In view of what the Authority's officers knew of the forecast weather conditions at that time of the morning, they should have taken steps in sufficient time to put down salt or grit and thus to prevent the ice forming. Whether the gritting lorry which had been scheduled to cover the road could and should have arrived earlier in time to prevent ice forming has been contested at the trial and before the Court of Appeal.
The issue before your Lordships has, however, been whether the duty to "maintain" includes a duty to keep the road safe by preventing ice from forming. It has not been contended that there is a liability at common law in negligence.
As a matter of ordinary language "maintain" is wide enough to include the taking of preventive steps and to include steps to keep the road safe for ordinary use by motor cars. Gritting is a perfectly normal practice and no suggestion is made that extraordinary or novel steps should have been taken. If this Act stood alone, there would be much force in the conclusion of the majority in the Court of Appeal that there could be liability in some circumstances for a failure to maintain by keeping the road safe subject to the Local Authority establishing a defence under section 58(1) of the Act that the Authority:
"had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."
The Act of 1980 cannot, however, be seen in isolation. Section 41 has its antecedents in earlier legislation and in the obligations of the inhabitants of the parish responsible for keeping a highway in repair. My noble and learned friend Lord Hoffmann, whose speech I have had the advantage of reading in draft, has analysed the extent of the duty both by statute and at common law. I agree with his conclusion that the earlier obligation to maintain or repair a highway would not have included preventing the formation of ice or danger created by snow and that "maintain" in section 41(1) and "maintenance" in section 329(1) must be read in the same way.
Accordingly, despite the admirable arguments of Mr. Ross, I agree that the appeal should be allowed and the action dismissed.
I have had the advantage of reading the draft the speeches of Lord Slynn of Hadley and Lord Hoffmann. For the reasons they have given I would also allow the appeal.
1. The accident
At dawn on a frosty November morning in 1991 Mr. Geoffrey Goodes was driving his Ford Capri on the A267 at Wellbrook Hill near Mayfield in Sussex. As he moved out to overtake on a straight stretch of road, a rear wheel skidded on a patch of black ice. He lost control and the car crashed into the parapet of the bridge over the Wellbrook. He suffered dreadful injuries and is now almost entirely paralysed.
2. The issue
Mr. Goodes claims damages against East Sussex County Council on the ground that it was in breach of its statutory duty under section 41(1) of the Highways Act 1980 to "maintain the highway." He does not complain that there was anything wrong with the road surface. In freezing weather, black ice can form on the best laid surfaces. But he says that the council should have prevented the formation of the ice by spreading salt and grit on the road before dawn. So the short point in this appeal is whether the duty under section 41(1) is confined to keeping the highway in good repair or whether it also obliges the council to keep it free of ice. The statement of claim also contained an allegation that the council had been guilty of common law negligence. But this was not pressed at the trial and has disappeared from the case. The courts below said that they were bound by previous authority to hold that section 41(1) imposed the wider duty. But the Court of Appeal gave leave to appeal so that those authorities could be examined in your Lordships' House. There was a difference of opinion on whether the council had complied with the duty. The judge held that it had done enough and dismissed the action. In the Court of Appeal Aldous L.J. agreed. But the majority (Hutchinson and Morritt L.JJ.) held that the council was in breach and allowed the appeal.
3. The council's practice
Although the council denies it has a statutory duty to keep the roads free of ice, it does in fact make considerable efforts to do so. The Highway Superintendent receives weather forecasts from the Southampton Meteorological Office and decides whether and when to send out the council's fleet of gritting lorries. Each lorry has a route to cover. The council follows a Code of Good Practice issued by the Association of County Councils and three other local authority associations. This says, among other things, that the salting should be completed before the morning rush hour begins at 7.30. In the present case there had been a forecast of freezing conditions in the early hours and the lorries had been despatched at 5.30. Unfortunately, by the time of the accident, the lorry covering the A267 had not yet got to Wellbrook Hill. It arrived a few minutes later and would have been able to complete its route by 7.30. But a majority of the Court of Appeal decided, on the assumption that the statute imposed a duty to keep the road free of ice, that the council was nevertheless in breach of duty. The gritting should have been completed before the time when, according to the forecast, ice was likely to form.
4. Statutory construction
There is a partial definition of "maintain" in section 329(1) of the Act of 1980. It provides that "'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
The Act of 1980 was a consolidation Act and section 41(1) and the accompanying definition reproduced identical provisions which had first appeared as section 44(1) and section 295(1) (the definition clause) of the Highways Act 1959. There is nothing to suggest that any change of meaning was intended. The Highways Act 1959 was also a consolidation Act. The long title was "An Act to consolidate with amendments certain enactments relating to highways." But there is no exact antecedent of section 44(1) and the definition.
Mr. Ross, who appeared for Mr. Goodes, put forward an attractive argument on construction. He said that although the Act of 1959 was a consolidation Act, the court should interpret section 44(1) in the same way as if it formed part of a new Act. This was for two reasons. First, it was not simply a consolidation Act. It also contained amendments. Section 44(1) might therefore have been intended to amend the previous law by extending the duties of highway authorities from maintenance of the fabric to other forms of maintenance necessary to prevent the highway from being dangerous to the public. Secondly, even in the case of a pure consolidation Act, the courts should not delve into the antecedent legislation unless the obscurity of the statutory language made it necessary to do so. As Lord Wilberforce said in , 73:
"self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve."
Mr. Ross said that there was no real ambiguity about section 44(1) read with the definition. If maintenance "includes" repair, it must also include something else. Thus the concept must be wider than merely repairing the fabric of the highway. As a matter of ordinary language, "maintenance" is capable of including salting and gritting. No one would think it an odd use of language to say that the gritting lorries were used for highway maintenance. Furthermore, if one looks to the purpose of the legislation, the reason why a highway authority is under a duty to maintain the highway is to ensure that it can be used with safety by members of the public. By 1959 it was recognised that this required the removal of snow and ice. Highway authorities had in practice been spreading salt and grit on the roads for a number of years. It would be anomalous if the highway authority had a duty to eliminate potholes but was not required to do anything about the more insidious hazards of black ice. Another anomaly would be the distinction between the duty of a highway authority in respect of the dangerous state of the highway and the liability of an adjoining owner in public nuisance for causing danger to persons on the highway. The latter would be far more strict: for example, in . a property owner was held liable for failing to remove snow from his roof, so that a minor avalanche injured a passer-by on the pavement.
My Lords, I...
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