Goodes v East Sussex County Council

The duty under section 41(1) of the Highways Act 1980 is an absolute duty to maintain the physical fabric of a highway so that it is reasonably passable for ordinary traffic without danger caused by its physical condition. It does not require a highway authority to prevent or remove naturally occurring ice or snow from an otherwise sound surface.

Section 58 provides a defence to liability for breach of the maintenance duty. It neither enlarges that duty nor converts its scope into a question of whether the authority acted reasonably. Any duty to protect highway users from transient weather conditions requires legislation.

Mr Goodes was gravely injured when his car skidded on black ice on a highway maintained by East Sussex County Council. He claimed damages for breach of the statutory duty to maintain the highway under section 41(1) of the Highways Act 1980. The road surface itself was not defective, and an allegation of common law negligence was not pursued.

The trial judge dismissed the action, holding that the council had done enough. A majority of the Court of Appeal allowed Mr Goodes's appeal, while Aldous LJ dissented: [1999] R.T.R. 210. In Goodes v East Sussex County Council, the central issue was whether the statutory duty to maintain a highway extended beyond repair of its physical fabric to preventing or removing ice.

1. Disposition. The House of Lords unanimously allowed the council's appeal, restored the trial judge's decision and dismissed the action.

2. Scope of the maintenance duty. Lord Hoffmann delivered the leading speech. Lord Slynn of Hadley, Lord Steyn and Lord Hobhouse of Woodborough agreed with his reasoning or conclusion. Section 41(1) of the Highways Act 1980 continued the historical duty to maintain highways. That duty concerned repair and the physical condition of the highway. It did not include removing snow or ice, still less taking advance measures to prevent their formation on an otherwise sound surface.

3. Objective and absolute character. Lord Hoffmann adopted the standard stated in Burnside v Emerson [1968] 1 W.L.R. 1490. The highway must be kept in sufficiently good repair to be reasonably passable for the ordinary traffic of the neighbourhood throughout the year without danger caused by its physical condition. The duty is absolute in the sense that insufficient resources or reasonable care do not excuse a failure to meet that objective standard.

4. Section 58. The statutory defence under section 58 addresses liability for breach after the scope of the section 41 duty has been established. It does not enlarge the duty or make its existence depend on whether sufficient time has passed for remedial action. The contrary majority approach in Haydon v Kent County Council [1978] Q.B. 343, subsequently followed in Cross v Kirklees Metropolitan Borough Council [1998] 1 All ER 564, improperly introduced considerations of reasonable conduct into an absolute duty and was displaced.

5. Historical and statutory context. The specific statutory provisions dealing with snow, ice and obstructions confirmed that such transient conditions were not part of the general maintenance duty. Lord Clyde reached the same conclusion independently. He held that maintenance concerned the physical or structural condition of the highway and that section 58 could mitigate liability without determining the duty's scope.

6. Legislative responsibility. Their Lordships recognised that Parliament might create a remedy for injury caused by a highway authority's unreasonable failure to address ice or snow. The language and history of the existing legislation could not bear that extension, which would create an absolute duty different in kind from the inherited repair obligation.

• House of Lords: Unanimously allowed the highway authority's appeal, restored the trial judge's decision and dismissed the action.
• Court of Appeal: By a majority, allowed Mr Goodes's appeal and held that the council was in breach of duty. Aldous LJ dissented and agreed with the trial judge: [1999] R.T.R. 210.
• Trial: The judge held that the council had done enough on the assumed wider construction of the statutory duty and dismissed the action.