Goodes v. East Sussex County Council

The House of Lords considered whether the statutory duty in section 41(1) of the Highways Act 1980 (with the definition in section 329(1)) to "maintain the highway" extended to taking preventative measures to stop the formation of ice and snow on the carriageway. The court held that "maintain" in that statutory context must be read as equivalent to the historic duty to keep the fabric of the highway in repair and does not extend to a general duty to prevent or remove ice or snow forming on the surface. The Lords relied on the statutory antecedents (including the Highways Act 1959), common law history, and authorities such as Dublin United Tramways Co. Ltd. v. Fitzgerald to conclude that Parliament had not imposed an absolute obligation to prevent transient weather hazards by construction of section 41(1). The appeal was allowed and the action dismissed.

Background and facts:

• On 14 November 1991 at about 7:10 a.m., Mr Goodes skidded on black ice on a highway maintainable at public expense by East Sussex County Council, suffered grievous injuries and sued the council for damages.
• The claim relied on an alleged breach of the statutory duty under section 41(1) of the Highways Act 1980 to "maintain the highway"; common law negligence was not pursued.

Procedural history:

• The trial judge dismissed the action. The Court of Appeal was divided: Aldous L.J. agreed with the judge, but the majority (Hutchinson and Morritt L.JJ.) held for the claimant (reported [1999] R.T.R. 210). Leave to appeal to the House of Lords was granted.

Nature of the claim and issues:

• (i) Nature of claim: damages for breach of statutory duty under section 41(1) of the Highways Act 1980, arguing that the duty included preventing ice forming by measures such as gritting.
• (ii) Issues framed: whether the statutory duty to "maintain the highway" includes an obligation to take preventative steps to stop ice or snow forming; and if so, whether the council had breached that duty in the circumstances.

Court's reasoning and decision:

• The House of Lords analysed the language of the 1980 Act in its statutory and historical context, tracing antecedent provisions in the Highways Act 1959 and earlier law. The court emphasised that the 1959 and earlier law treated the duty as equivalent to the inhabitants' historic duty to keep the fabric of the highway in repair, not as a general duty to remove or prevent accumulations caused by the weather.
• The Lords concluded that the definition "maintenance includes repair" was intended to clarify the repair dimension of the duty rather than to broaden it to cover transient weather hazards. Authorities dealing with tramway companies and other historic statutes showed that transient conditions such as ice and snow were not treated as within the repair duty except where the fabric itself was defective.
• The court observed that if Parliament had intended to create a broad preventive duty to clear ice and snow it would likely have done so expressly (and noted that Scotland has an express statutory duty for snow and ice in section 34 of the Roads (Scotland) Act 1984). Policy and practical consequences of construing section 41(1) to require clearance of ice from all highways weighed against such an extension by judicial construction.
• Accordingly, the House of Lords allowed the council's appeal and dismissed the claim.

Appeal allowed. The House of Lords held that the statutory duty in section 41(1) of the Highways Act 1980 (read with the definition in section 329(1)) is to maintain the fabric of the highway in repair and does not extend to a general duty to prevent or remove the formation of ice or snow on the highway. The historical context, antecedent legislation and authorities supported this narrower construction and the court declined to extend the statutory duty by judicial interpretation; matters of resource allocation and fairness were for Parliament. The claimant's action was therefore dismissed.

Trial: action dismissed by the trial judge. Court of Appeal: majority allowed the claimant's appeal (reported [1999] R.T.R. 210) with Aldous L.J. dissenting. House of Lords: appeal by East Sussex County Council allowed [2000] UKHL 34; action dismissed.