Cross v Kirklees Metropolitan Borough Council

The statutory duty to maintain a highway is absolute as to the result required, but it does not require a highway authority to keep every highway continuously free from transient surface water, snow or ice. Mere presence of ice does not establish breach. Where a highway is physically in good repair, the claimant must show that sufficient time has elapsed to make it prima facie unreasonable for the authority to take remedial or preventative measures, having regard to the highway’s character, anticipated use and practical priorities. Only then is there a prima facie breach, subject to the authority’s defence under the Highways Act 1980, section 58.

A 77-year-old pedestrian slipped on ice on a pavement in Dewsbury. The highway authority had gritted the adjoining priority carriageway after an accurate forecast of overnight frost, but had not treated the pavement. The county court held that the authority had breached its duty under section 41 of the Highways Act 1980 and had not established the statutory defence under section 58, awarding agreed damages.

The authority appealed. The central issue was whether the natural presence of overnight ice on a pavement in good repair, without more, established a breach of the statutory duty to maintain, or whether the claimant had to prove that sufficient time had elapsed to make failure to take remedial measures prima facie unreasonable.

1. Appeal allowed. Section 41 imposes a duty to maintain the highway so as to exclude foreseeable risks of injury resulting from its use. The statutory duty is absolute as to the result required, but it is not an obligation to keep the highway entirely free from transient water, snow or ice at all times.
2. The meaning of “maintain” is wider than repair and keeping in repair. It includes preventative or clearance measures for snow and ice, such as gritting. Nevertheless, the mere presence of snow or ice does not establish breach. For a highway in good physical repair, the claimant must prove that sufficient time had elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures, having regard to the nature and importance of the way, its anticipated use and the authority’s practical priorities.
3. This approach does not reverse the statutory burden under section 58. Once the claimant establishes a prima facie breach, the authority may rely on the statutory defence. The court distinguished the absolute nature of the duty from the reasonable standards used to identify the result which the authority was required to achieve.
4. The county court judge had effectively asked whether the authority had acted negligently. That was the wrong question. The policy of treating priority carriageways before pavements was not shown to be unreasonable, and the short period before the forecast rise in temperature meant that it could not be said that sufficient time had elapsed before the accident.
5. Lord Justice Millett agreed that the appeal should be allowed and reasoned that an icy road is not necessarily out of repair; liability arises only if snow or ice persists long enough for the general condition of the way to become properly treacherous. Sir Ralph Gibson agreed with Evans LJ’s reasons, while expressing a preference for Lord Denning MR’s narrower construction in Haydon v Kent CC [1978] 1 Q.B. 343.

The court did not need to determine the section 58 defence or the extent of any risk which highway users should bear themselves. The respondent’s appeal costs were subject to Legal Aid Taxation.

• Court of Appeal (Civil Division): appeal from the Dewsbury County Court allowed.
• Dewsbury County Court: the claim succeeded and agreed damages of £9,325 were awarded.