Cross v Kirklees Metropolitan Borough Council [1997] EWCA Civ 1986 (27th June, 1997)

IN THE SUPREME COURT OF JUDICATURE ccrtf 97/0026/c
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DEWSBURY COUNTY COURT
(HIS HONOUR JUDGE WALKER )
Royal Courts of Justice
Strand
London WC2
Friday 27 June 1997
B e f o r e:
LORD JUSTICE EVANS
LORD JUSTICE MILLETT
SIR RALPH GIBSON
– – – – – –
EMMA CROSS
Plaintiff/Respondent
– v –
KIRKLEES METROPOLITAN BOROUGH COUNCIL
Defendant/Appellant
– – – – – –
(Transcript of the Handed-down judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
– – – – – –
MR H DAVIES (Instructed by Hammond Suddards, London EC2Y 5ET) appeared on behalf of the Appellant.
MR T HARTLEY with MISS S PILCHER (Instructed by Winnard & Colquhoun, Dewsbury, WE13 1DX) appeared on behalf of the Respondent.
– – – – – –
J U D G M E N T
(As approved by the Court)
– – – – – –
©Crown Copyright
JUDGMENT
LORD JUSTICE EVANS: On 26 November 1993 the plaintiff, Emma Cross, slipped and fell on an icy pavement at Foundry Street in Dewsbury, Yorkshire. She was then aged 77 and she suffered quite serious injuries. Her daughter was walking a short distance ahead of her. She realised that the pavement was slippery and called out a warning, but it was too late to prevent the fall. Mrs Cross claimed damages from Kirklees Metropolitan Council, which is the highway authority responsible for maintaining the pavement. Her claim succeeded before His Honour Judge Walker and he awarded her an agreed sum of £9,325, including special damage and interest. The Council now appeals.
The judge held that, on the evidence before him, the Council was in breach of its duty to maintain the pavement under section 41 of the Highways Act 1980, and that it failed to make out the statutory defence provided for by section 58.
These two sections, so far as relevant, read as follows:-
“Section 41
41(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to sub-sections 92) and (4) below, to maintain the highway.
Section 58
58(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence of the application of the law relating to contributory negligence) to prove 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.
(2) For the purposes of a defence under subsection (1) above, the court shall in particular have regard to the following matters:-
(a) the character of the highway, and the traffic which was reasonably to be expected to use it;
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;
(c) the state of repair in which a reasonable person would have expected to find the highway;
(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notices of its condition had been displayed;
but for the purposes of such a defence it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.”
Two further provisions of the same Act are also relevant. These are section 329, which provides the only statutory definition of maintain:-
“Maintenance” includes repair and “maintain” and “maintainable” are to be construed accordingly;”
and section 150, which provides as follows:-
“150(1) If an obstruction arises in a highway from accumulation of snow or from the falling down of banks on the side of the highway or from any other cause, the highway authority shall remove the obstruction.
(2) If a highway authority fail to remove an obstruction which it is their duty under this section to remove , a magistrates’ court may, on a complaint made by any person, by order require the authority to remove the obstruction within such period (not being less than 24 hours) from the making of the order as the court thinks reasonable, having regard to all the circumstances of the case.”
These provisions, or rather their predecessors in section 44 of the Highways Act 1959 (which became section 41) and section 1 of the Highways (Miscellaneous Provisions) Act 1961 (which became section 58), were considered on two occasions by the Court of Appeal presided over by Lord Denning M.R. There were also predecessors to sections 329 (definitions) and 150 (obstructions), respectively. The two cases were Burnside v. Emerson [1968] 1 W.L.R. 1490 and Haydon v. Kent C.C. [1978] 1 Q.B. 343. It will be necessary to consider both the facts of these cases and the judgments given in them in some detail. First, however, the facts established by the evidence in the present case.
The plaintiff’s daughter had driven her to Foundry Street and parked on the offside of the one-way street so that they could walk to the Arcade, a short distance further on. The plaintiff walked ahead of the car and was a few steps onto the pavement when she slipped on an icy patch. This was outside an haberdashery shop owned by Mrs Ellis.
The Council operates a system for predicting when anti-snow and ice measures are necessary, and has a considerable fleet of vehicles which it owns or can call on for this purpose. A daily weather forecast is received and a senior officer decides what action is necessary. On this occasion, a forecast issued at 1200 was seen by Mr O’Dwyer, the Council’s Senior Stand-by officer of its Highway Service, at 1420. This was:-
24 HOUR FORECAST ISSUED AT 14:07 25/11/93
24 HOUR FORECAST ISSUED AT 1200Hr. THURSDAY 25-11-93
SITUATION: VERY WEAK FRONT CLEARING SOON AFTER DARK. RIDGE OF HIGH PRESSURE SOON BUILDING BEHIND WITH SLACK AIRFLOW.
HAZARDS (CONFIDENCE) FOG (M) RST (M) ICE (M) FROST (M)
AIR TEMPERATURES:-
MAXIMUM TODAY: 07 DEG C
MINIMUM TONIGHT: -02 DEG
ROAD STATE: WET. FROST/ICE from 2100 until 0930 hrs.
WEATHER: SUNNY SPELLS: OCCASIONAL LIGHT RAIN LATE AFTERNOON CLEARING SKIES BY MIDNIGHT, PATCHY FOG TOWARDS DAWN.
WIND: SW 5-10 MPH BECOMING VARIABLE 5 MPH THIS EVENING.
FORECASTER: D BETT LEEDS WEATHER CENTRE (0532) 449544″
Mr O’Dwyer endorsed this with the action that he regarded as necessary to counter the risk caused by sub-zero temperatures from about 2100 until 0930 the following day:-
“Full grit 18.30
delay start until rain ceased”.
Mr Toothill, another of the Council’s officers, explained the situation as follows. The Council’s Policy is as stated in a document which was produced in evidence. This begins:-
“Precautionary treatment of roads and footways will be based on Meterological Forecasts issued by Leeds Weather Centre …. “.
He further explained that there was an established practice as regards priorities, for the obvious reason that all of the roads, pavements and footpaths (all of which are “highways” for vehicles or pedestrians for the purposes of section 41) could not be dealt with at once. First came roads which were classified as priority routes; then, roads classified as secondary routes; then, pavements. He said that on this occasion Mr O’Dwyer’s instruction “Full Grit” related to the first category, primary routes, only. Therefore, no pavements or secondary routes were treated on the night in question.
By way of background, it should be added that the Council is responsible for winter maintenance of 1648 kms. of highway at altitudes ranging from 150 to 1725 feet. In 1986 it used an average of 24 tonnes of salt per kilometre of highway, the highest rate achieved by any highway authority in the United Kingdom.
On the evening in question, a total of 51 vehicles began work either at 6.30 p.m. or later if the rain continued after that time, and they would have competed the priority routes after 2½ to 3 hours.
Foundry Street is a priority route and so it received the “full grit” treatment, but in accordance with Mr O’Dwyer’s instructions the pavement did not. That would have involved using manual labour to spread salt across the pavement, whereas this was done automatically by the gritting vehicles on the roads.
This evidence was in many ways helpful to the plaintiff. The weather forecast was accurate. Rain on the previous day was followed by clearer skies and sub-zero temperatures. These caused ice to form on the surface of the pavement and by 0930 the ice had not melted. This was what Mr O’Dwyer predicted, which was why he gave the instruction as regards the priority routes that he did. If he had said that all routes and pavements should be treated, then there was no evidence that this could not have been done, at the latest, by 0930 next morning, provided the necessary resources in terms of vehicles and manpower were available. Mr Toothill did say that lack of resources might have been a problem, but he could not give direct evidence of this and, on the evidence, no work of any sort was done after about 9.30 the previous evening.
On the other hand, the weather pattern was unsettled, and there was no suggestion that an arctic spell or a long period of sub-zero temperatures was in prospect. The forecast was that whatever ice formed overnight would melt sometime after 0930 in any event.
The Council’s duty – to “maintain” the highway .
In my judgment, the issue whether the Council was in breach of duty under section 41 depends upon the meaning of “maintain”. There was no question of the pavement being in a state of disrepair, nor any suggestion that inadequate drains were provided which led to an accumulation of water and therefore to a greater depth or extent of ice than was inevitable when rainfall was followed by freezing temperatures overnight. 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 in order to establish a breach of duty, subject always to the statutory defence? And if the duty is so qualified, why is the defence expressed in the way that it is in section 58?
No clear answers are found in the authorities referred to above.
In Burnside v. Emerson the plaintiffs were injured in a road accident caused by flooding. They sued the executors of the deceased driver whose car spun out of control into the path of their own car, and also the highway authority, who had installed a proper system of drainage (except in one respect) but whose employees had failed to keep it clear so that it operated efficiently.
The trial judge also found that the drain was not installed at the lowest point (see 1493B). He held the highway authority liable to the plaintiffs, but he exonerated the deceased driver.
The Court of Appeal varied his order, holding that the driver was two-thirds liable and the highway authority one-third. Lord Denning M.R. and Diplock L.J. gave separate judgments, and Goff L.J. agreed with both. Lord Denning told how the highway authorities were never liable for non-feasance in a civil action, but the common law rule was abolished by the 1961 Act. He said:-
“There is a duty on a highway authority to maintain the highway, and “maintain” includes repair. If it is out of repair, they fail in their duty: and if damage results, they may now be made liable unless they prove that they used all reasonable care. The action involves three things:
First. The plaintiff must show that the road was in such a condition as to be dangerous for traffic …..
Second: The plaintiff must prove that the dangerous condition was due to a failure to maintain which includes a failure to repair the highway. In this regard, a distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to the elements. When there are potholes or ruts in a classified road which have continued for a long time unrepaired, it may be inferred that there has been a failure to maintain. When there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is not evidence of a failure to maintain. Lindley J. said in 1880 in Burgess v. Northwich Local Board :
“An occasional flooding, even if it temporarily renders a highway impassable, is not sufficient to sustain an indictment for non-repair.”
So I would say that an icy patch in winter or an occasion flooding at any time is not in itself evidence of a failure to maintain. We all know that in times of heavy rain our highways do from time to time get flooded. Leaves and debris and all sorts of things may be swept in and cause flooding for a time without any failure to repair at all.
Third: If there is a failure to maintain, the highway authority is liable prima facie for any damage resulting therefrom.” (1493-4)
Diplock L.J. analysed the matter as follows:-
“The duty of maintenance of a highway which was, by section 38(1) of the Highways Act, 1959, removed from the inhabitants at large of any area, and by section 44(1) of the same Act was placed on the highway authority, is a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition. I take most of those words from the summing-up of Blackburn J. in a case in 1859, Reg. v. Inhabitants of High Halden , “Non-repair” has the converse meaning. Repair and maintenance thus includes providing an adequate system of drainage for the road; and it was in this respect that the judge found that the highway authority in this case had failed in their duty to maintain the highway. I think that on the evidence, for the reasons given by Lord Denning M.R., he was entitled to make that finding.
A mere failure to repair gives rise to no cause of action unless the failure to repair results in a danger to the traffic using the road and damage caused to some user of the highway by the existence of that danger.”
Haydon v. Kent C.C. arose out of the presence of impacted snow and ice on a steep, narrow, made-up footpath, which had built up from Monday to Thursday during a short wintry spell. The plaintiff slipped and broke her ankle. The highway authority operated a system of priorities similar to that adopted by the Council in the present case. Their resources were fully taken up with sanding and gritting roads, but on the Wednesday evening one of their workmen reported the dangerous state of the particular path to them, and they took prompt action next morning, but not in time to prevent the plaintiff’s accident.
The Court held that the authority was not liable, but Lord Denning’s reasoning was different from the majority constituted by Goff and Shaw L.J.J., who each gave separate judgments.
Lord Denning held that the statutory definition does not imply that “maintain” has a wider meaning than “repair”, and that given the legislation history the cause of action which an injured person has under the 1961 Act was limited to “non-repair” of a highway, and did not include other cases (359B). As to the extent of the duty to maintain, he said this:-
“In my opinion, therefore, the duty in section 44 of the Act of 1959 “to maintain the highway” is the equivalent of the duty at common law and in the Act of 1835 “to repair and keep in repair.” It means that whenever there is a defect in the surface of the highway, the highway authority is under a duty to repair it. But it does not mean that the highway authority is under a duty to remove snow or ice whenever it makes the highway slippery or dangerous. I adhere, therefore, to the view I expressed in Burnside v. Emerson [1968] 1 W.L.R. 1490, 1494: “… an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain”.
This is not to say that the highway authority have no duty to clear roads that are snowed up or ice-bound. Of course they have a duty and they fulfil it, as we all know, by their modern vehicles which spray salt and grit. But this duty does not arise out of their duty to maintain under section 44. It arises out of their duty to remove obstructions under section 129: and a breach of that duty does not give rise to a civil action for damages” (359-360).
He also held that the duty under section [41], although confined to repairing and keeping in repair, is an absolute duty, not merely a duty to take reasonable care to maintain, citing Diplock L.J. in Griffiths v. Liverpool Corporation [1967] 1 Q.B. 374 at 389 and referring to similar duties under the Factory Acts (357F). Moreover, there was an “obstruction” of the highway for the purposes of section [150] if passage was rendered impossible or more difficult by, among other things, a fall of snow, but that section did not give rise to a civil action for damages (357C).
Goff L.J. differed with considerable hesitation, but he held that “maintain” is not confined to “repair” or “keep in repair” (361 E-H), and after referring inter alia to Factory Act provisions which do not apply to “transient and exceptional conditions” he concluded that –
“…. the statutory obligation to maintain does include clearing snow and ice or providing temporary protection by gritting, but whether there has been a breach of this duty is a question of fact and degree on the facts of each particular case” (362H).
This made it necessary to consider what the plaintiff must prove, bearing in mind that under section 58 defendant has the burden of proving that he took reasonable steps and it would be wrong to invert that burden of proof. He held that the plaintiff must prove –
“… either as in Burnside v. Emerson [1968] 1 W.L.R. 1490 that the highway authority is at fault apart from merely failing to take steps to deal with the ice, or, which is the point in this case, that, having regard to the nature and importance of the way, sufficient time had elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence” (363B).
Shaw L.J. agreed that “maintain” is wider than “repair” (364D) and that its ordinary meaning is “to keep something in existence in a state which enables it to serve the purpose for which it exists”. In the case of a highway that purpose is to “provide a means of passage for pedestrians or vehicles or both” (364E). He concluded:-
” I agree entirely with what has been said as to the presence of an icy patch on a footpath not constituting a want of repair. The plaintiff could not succeed on such a ground. In what other sense can it be asserted that the defendant council were guilty of a culpable breach of their duty to maintain the footpath? The icy patch cannot sensibly be regarded as an obstruction for it did not render the path impassable though it may have called for particular care in negotiating it. Even if it be regarded as having made passing along the footpath hazardous in some degree, I cannot see how the failure to deal immediately or promptly by some countermeasure with the outcome of weather conditions on the footpath in question could be said to be culpable so as to give rise to a liability on the part of the highway authority. I feel, as does Goff L.J., that there may be extreme cases in special circumstances where a liability for failure to maintain not related to want of repair may arise. Such cases are not readily brought to mind although I would not wish to exclude them by confining the scope of maintenance to matters of repair and keeping in repair. What is clear is that the present case exhibits no such special or extreme features.”
We were also referred to the judgment of Boreham J. in Bartlett v. DoT (1984) 83 LGR 579. He was bound to follow the majority judgments in Haydon v. Kent C.C. but he did not agree with their reasoning and he preferred Lord Denning’s view that the duty is absolute (590).
Submissions
Mr Davies for the Council relies upon the Court of Appeal authorities for the propositions that the duty to maintain does not include a duty to remove a transient condition or danger such as snow or ice, and that whether or not a breach is established is a question of fact and degree as described by Goff L.J. The mere presence of ice does not prove a failure to maintain, and here there was no other ground upon which it could be said that the Council was culpable or had failed to take steps to remove the danger within a reasonable time. The system of priorities was reasonable and such as to ensure the continuance of essential services; there were practical difficulties in gritting the pavements manually during the night; and the periods involved were very short, much less than the protracted Arctic spell in Bartlett v. DoT (about three weeks) and the 3-4 days in Haydon.
Mr Hartley for the plaintiff accepted that we are bound by the majority decision in Haydon and so he could not submit that there was an absolute duty, as Lord Denning M.R. there held. He also accepted, in any event, that the mere presence of ice did not establish a breach, but he submitted, first, that the Council failed to take preventative measures, which they could have done the previous evening, and secondly, that there was sufficient evidence that the Council was at fault or culpable to justify the judge’s finding that there was a breach of the duty to maintain in the circumstances of this case.
Conclusions
I note first that the Council’s duty under section 41 is simply to “maintain the highway”. There is no express reference to safety or to the absence of danger. But the cause of action which arises when the duty is broken requires proof of injury caused by the failure to maintain, and the risk of injury must have been foreseeable by the Council (per Diplock L.J. in Burnside and Lord Denning M.R. in Haydon). So for the purposes of civil liability the duty is to maintain the highway so as to exclude the foreseeable risk of injury resulting from its use.
The majority judgments in Haydon recognise that “maintain” may have a wider meaning than the common law obligation to “repair” and “keep in repair”. Lord Denning M.R. expressed the contrary view, both by reference to the legislative history and as a matter of statutory interpretation. I respectfully agree with the majority in this respect, but I doubt whether the practical difference between the two views is as great as may be supposed. Take the facts of Burnside where the road surface was flooded due to poor maintenance of properly constructed, even if wrongly sited, drains. That can equally well be regarded, in my judgment, as a failure either to maintain the highway in a safe condition or to keep it in good repair.
This does not mean, however, that the mere presence of water on the road surface, whether after heavy rainfall or as the result of some other form of flooding, indicates that the highway has not been properly maintained or kept in good repair. No one suggests that it does. “Something more” must be proved for a breach of duty to be established, and this would normally mean that the construction of the road was inadequate to deal with a known risk of dangerous conditions which flooding might create.
Snow and ice present a different problem. They affect the surface of the highway and create a foreseeable risk of injury, but they cannot be prevented or guarded against by the proper design and construction of the road, as flooding is by the construction of drains. They require preventive or ameliorative measures such as gritting and sanding, which can be described as maintenance but not as keeping the road in good repair.
Again, I respectfully agree with the majority judgments in Haydon that the duty to maintain the highway does include maintenance of this kind. Heavy snow and also, perhaps, extensive ice could be said to “obstruct” the highway for the purposes of section 150, but it is not easy to say that snow or ice which does not prevent or restrict use of the highway, even though rendering passage along it more risky, is an obstruction of this sort. Like surface water, however, the mere presence of snow and ice does not establish a breach of the duty to maintain.
Thus, although the duty to maintain is absolute, rather than a duty to take reasonable care to maintain (per Diplock L.J. and Lord Denning M.R., above) it is not a duty to keep the highway at all times entirely clear or surface water, snow and ice. As regards flooding, the nature of the duty was established by the Burnside judgment. It is to construct a proper drainage system and to maintain the system in operation. The highway authority’s performance can only be measured by reasonable standards. To this extent, a concept of reasonableness applies, but this is not to say that the duty is limited to taking reasonable care. There is an absolute duty to achieve a certain result, even though reasonable standards apply in establishing what the result must be.
As regards snow and ice, and apart from the special case where ice is due to excessive surface water which should not have been allowed to accumulate, in my judgment a similar concept applies. The duty to maintain includes taking preventative or clearance measures which are sufficient to keep the surface reasonably safe. This means (a) what measures are sufficient will depend in part on what use of the highway can be anticipated, and by whom; and (b) that if no or insufficient measures are taken within a reasonable time, and injury is caused thereby, then the plaintiff may establish at least a prima facie breach of duty under section 41. The authority can then rely, if it chooses to do so, on the statutory defence under section 58.
This analysis does not, in my judgment, have the effect of reversing the statutory burden of proof, as Boreham, J. in Bartlett v. DoT feared that it might. Nor does it mean that the duty ceases to be absolute, for the reasons given above. Moreover, there is no contradiction, in my judgment, between asserting a duty to achieve a certain result, and yet allowing a reasonable time for that result to be achieved. Parallels may be drawn in this respect with the Factory Act cases referred to by Goff L.J. and with the continuing warranty of seaworthiness which a shipowner may give under a time charterparty. Even though the warranty is absolute, in the event of a breakdown the shipowner may have a reasonable time within which to restore the vessel to her seaworthy state (see Scrutton on Charterparties (20th ed.) Art. 177 p.363). But the parallels need not be exact, because the Council is liable for a statutory tort, and in my judgment it is abundantly clear that the liability created by section 41 is to this effect. Test the matter in this way. Suddenly and without warning the road ceases to be in good repair, perhaps because unforeseeable subsidence occurs. The highway authority clearly must repair the damage within a reasonable time, and if the need is urgent then the period could be very short. In my view, there would not be an immediate breach of section 41, at the moment when the damage occurs and before remedial (or preventive) action could be carried out.
It seems to me that essentially this was the approach adopted by Goff L.J. in Haydon. He said that liability could be established when, “having regard to the nature and importance of the way, sufficient time had elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures” (363B). Shaw L.J. spoke rather of a “culpable” breach of the duty to maintain, but he then referred to the time factor: a failure to deal “immediately or promptly” with the outcome of weather conditions could not give rise to liability, of itself (365B). The majority judgments in my view support the practical application of section 41 in the way I have suggested above.
The present case
The judge held that liability was established, because the Council could foresee that the footpath would become dangerous (this was demonstrated by the action which it took to grit the road), and he asked himself the question “Did they in all the circumstances take the steps which they should have taken?” Having reminded himself that there were inevitable constraints of time, manpower and material, and that there was no absolute duty “to clear ice or render harmless ice in every circumstances”, he concluded:-
“So in the circumstances what evidence is there that these matters would have been impossible or unreasonable? Well, no evidence was advanced as to it being impossible. Some suggestion was made that it might have been difficult or inconvenient. There was no suggestion made, though I suspect it might be in the next case that is brought, that financial considerations would have made it prohibitive, and I stress particularly that there was not only no evidence of that, but Mr Toothill’s evidence was that the money was not the issue.
In all the circumstances, it seems to me that adopting that overall look at the facts that the Council have failed in their duty”.
In my judgment, the judge erred in asking in relation to liability under section 41 a general question which effectively was equivalent to asking whether the council was negligent, or not. The correct and much more limited question was, did the evidence establish that “sufficient time had elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures”? It cannot be said that the Council’s policy as described by Mr Toothill was unreasonable, and I cannot accept Mr Hartley’s submission that the policy document required equal and contemporaneous treatment of highways and footpaths whenever action became necessary. Given the terms of the weather forecast, the short period during which the footpath was likely to be used before the temperature rose above freezing, and the fact that this pavement would only have been cleared if all roads and all pavements had been similarly dealt with, it seems to me that only one answer is possible to Goff L.J.’s question: it could not be said that it was prime facie unreasonable of the Council not to have taken remedial or preventative measures before the plaintiff suffered her unfortunate accident at the time when she did.
For these reasons, I would allow the Council’s appeal. It is unnecessary to consider whether the judge was entitled to hold that the Council failed to establish the section 58 defence, though regarding that issue in isolation I would be inclined to agree with Mr Hartley that there was a dearth of evidence from the Council and that the judge was justified in the view that he took. Finally, it has also not been necessary to consider what risk, if any, of injury from snow, ice and other transient weather conditions highway users should reasonably be expected to bear for themselves, when deciding whether or not the Council failed in its duty to maintain under section 41.
LORD JUSTICE MILLETT: I agree that this appeal should be allowed.
An icy road is not out of repair, and the occasional presence of snow or ice on the road does not connote a failure on the part of the highway authority to maintain it. A duty to repair something imports an obligation to put right a defect as and when it occurs; but a duty to maintain something is a duty to maintain its general condition over time. There is no breach of such a duty is unless the general condition of the subject-matter is allowed to deteriorate below an appropriate standard. Assistance on the meaning of the word “maintain” can be derived from the speech of Lord Porter in Latimore v. AEC Ltd. [1953] AC 643 at pp 653-4, where he said:
“The question whether there has been a breach of statutory duty turns on the true construction of s. 25(1) of the Factories Act 1937 [repealed; see now the Factories Act 1961, s. 28(1)]. That sub-section provides that “All doors, steps, stairs, passages and gangways shall be of sound construction and properly maintained” and s. 152(1) [see now s. 176(1) of the Act of 1961] defines “maintained” as meaning “maintained in an efficient state, in efficient working order, and in good repair” …. To be efficient, the appellant contended, the floor must be fit for any of the purposes for which it is intended, e.g. for support and for passing over in safety. The difficulty of such a view is that it puts an excessive obligation on the employer. Indeed, it was conceded that it could not be carried to the length of saying that a temporary obstruction, such as a piece of orange peel or the like, would make it inefficient. Once this concession is made it becomes a question of the degree of temporary inefficiency which constitutes a breach of the employer’s obligation. Primarily, in my opinion, the section is aimed at some general condition of the gangway, e.g. a dangerously polished surface, or the like, or possibly some permanent fitment which makes it unsafe. But I cannot think the provision was meant to, or does, apply to a transient and exceptional condition.”
Accordingly, I agree that the duty to maintain the highway is not a duty to keep it free from snow and ice at all times regardless of the character of the highway and the nature and extent of its use. It is merely a duty to keep the general state of the highway in an appropriate condition. A highway authority is not obliged to ensure that every footway in its area is free from overnight ice, either during the hours of darkness when there are likely to be few persons about or during the early morning before the rise in temperature causes the ice to melt. It is only if the highway authority allows snow or ice to persist for sufficient time that the general condition of the way can be properly be described as treacherous that any question of its failure to maintain the way can arise.
SIR RALPH GIBSON: I agree that this appeal should be allowed for the reasons given by Evans, L.J.
For my part, I share the opinion of Boreham, J., expressed in Bartlett -v- D of T (1984) 83 LGR 579 at 590, that the ratio of Lord Denning’s judgment in Haydon [1978] QB 343, was preferable to that of the majority. It is not clear to me, having regard to the terms of the statute and to the preceding law, that Parliament intended to give a cause of action to a person who slips on ice, which has formed naturally on a footway which is in good physical repair. I think Parliament probably took the view, expressed by Somervell, L.J., in Thomas v. Bristol Aeroplane Co. [1954] 1 WLR 694, that “the danger of finding surfaces icy is one of the incidents of weather in our country which everyone encounters and it is one of those things which one has got to anticipate and take care of.” I see no reason to suppose that, if that were the right construction of s.41 of the Act of 1980, highway authorities would cease to devise and carry out proper measures for reducing danger and inconvenience from ice and snow on highways and footways.
If s.41 is to be construed as capable of imposing a duty to take remedial measures to deal with ice and snow on a highway, or footway, which is in good physical repair; so that whether in particular circumstances that duty has arisen is to be decided “as a question of fact and degree”; it would seem that the facts relevant to determining whether the duty has arisen would be essentially similar to those relevant to deciding whether a breach of the duty has been proved and whether the statutory defence under s.58 had been made out. Parliament did not define those facts for the purposes of s.41.
The concept of the passing of sufficient time to make it prima facie unreasonable for the highway authority to have failed to take remedial measures must presuppose some idea of the amount and nature of the resources for dealing with snow and ice which are or ought to be available to the authority, and of the order of priority among different carriageways and footways which guides or which ought to guide the authority; and of the necessary degree of urgency in using those resources. No such guidance is given in the statute with reference to proof of the arising of the duty.
The decision of the majority in Haydon’s case, however, is binding on this court. I agree with Evans, L.J. that the ground of decision of the majority must, in cases where there is no want of repair to the highway itself, be seen as requiring proof by the plaintiff, if she is to establish breach by the defendant of the duty under s.41 “to maintain the highway”, that “sufficient time had elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures”. It seems that a high standard of proof is to be exacted. In Haydon’s case the icy condition had lasted from about Monday, 12 February, to the morning of 15th February when the plaintiff fell. When a report was made about that particular footway, the defendant authority was able to send a man or men to deal with it. In the passage from the judgment of Goff L.J., cited above by Evans L.J., he said: p.365H:
“I feel … that there may be extreme cases in special circumstances where a liability for failure to maintain not related to want of repair may arise. Such cases are not readily brought to mind although I would not wish to exclude them by confining the scope of maintenance to matters of repair and keeping in repair. What is clear is that the present case exhibits no such special or extreme features.”
I agree that the plaintiff failed to prove any breach of the duty under s.41 for the reasons given by Evans L.J. It is not necessary for us to attempt a definition of what might constitute sufficiently “special or extreme” features. It seems to me clear that no such features were proved in this case because the facts seem to me such as might be expected to occur in any well administered town or city.
One further aspect of the judgment of Judge Walker should be mentioned. He said that the icing of the footpath was not reported as being dangerous, as it had been in Haydon’s case, but –
“was or ought to have been predicted as being dangerous by … the weather forecast on the basis of which (the Council) decided to grit the carriageway adjoining the footpath. Putting it crudely, what is sauce for the carriageway is sauce for the footpath. The danger would be equal, although to different types of traffic. The danger was foreseeable. The danger was … actually known to the Council by the weather forecast …”
There was no evidence before the judge as to the assessment of danger to the public from slipping by pedestrians on the footway as compared with that from the skidding of vehicles on the carriageway. If the court is to form its own judgment on the basis of the common understanding of road users I would reject the judge’s assessment as unsustainable. The pedestrian on the footway, who knows that it is a very cold morning, can look for and either see or feel the presence of ice. The pedestrian, in the circumstances of the plaintiff, who has arrived by car, would probably have been able to see that the carriageway had been gritted and to take appropriate care in moving on the footway which had not been gritted. If she has the misfortune to fall she will probably hurt only herself. The driver of a motor vehicle on an ungritted and icy carriageway may have less chance of perceiving the presence of ice; he may come to that point by roads which were not icy; and if his vehicle skids, it may hurt more people in addition to himself, and may inflict on them more serious injury. I see nothing to suggest that a highway authority may not sensibly give higher priority to carriageways than to footways in a city centre in deciding how to deal with a warning of ice on the roads.
Order: Appeal allowed. In the absence of any other applications Legal Aid Taxation of the Respondent’s costs of the appeal. 

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