Smithson v Lynn & Anor

Under section 41(1A) of the Highways Act 1980, a highway authority must ensure, so far as reasonably practicable, that safe passage is not endangered by snow or ice. The authority bears the burden of proving that it acted reasonably practicably. Reasonable practicability requires balancing the quantum of risk against the sacrifice involved in taking preventive measures. A winter-maintenance policy may provide a reasonable framework, but an unduly restrictive rule for responding to ad hoc requests cannot replace that assessment. Police reports of treacherous conditions and repeated accidents may amount to exceptional circumstances requiring serious consideration of spot gritting. A breach may coexist with contributory negligence by a driver, with liability apportioned according to relative responsibility and causative potency.

The claim arose from a 2015 road accident in which Michael Smithson was injured as a passenger in a vehicle driven by Bradley Lynn. The vehicle skidded on ice on Rascelf Road and collided with a tree. Mr Lynn settled Mr Smithson’s claim and pursued contribution or an indemnity from North Yorkshire County Council, which was added as the Second Defendant.

The trial concerned whether the Council breached its statutory duty under section 41(1A) of the Highways Act 1980 by refusing police requests for ad hoc gritting, and, if so, how responsibility for the accident should be apportioned between Mr Lynn and the Council.

1. Statutory duty and burden of proof. Section 41(1A) of the Highways Act 1980 imposed a duty, qualified by reasonable practicability, to ensure that safe passage was not endangered by snow or ice. The burden of proving reasonable practicability rested on the Council. Section 58 did not apply because section 41(1A) contained its own limitation.
2. Reasonable practicability. The court applied the familiar balancing exercise: the quantum of risk was to be weighed against the cost, difficulty and practical consequences of the proposed precautions. The Council had to assess the information supplied by the police, including the reported treacherous conditions, repeated accidents and large patch of black ice. The existence of a generally reasonable Winter Service Manual did not determine the particular request.
3. Ad hoc gritting policy. The Council’s restrictive interpretation of “exceptional circumstances” was too narrow. Two police requests concerning the same stretch of road, reporting treacherous conditions and two accidents, probably constituted exceptional circumstances. Police requests of that nature required very serious consideration because they indicated a risk of further harm. The Council failed to prove that refusing to spot grit the road was reasonably practicable. It therefore breached section 41(1A).
4. Causation. The Council’s argument that any inspector or gritter would have attended the wrong location failed on the facts. Further inquiry would probably have corrected the location error and revealed the serious conditions. The court also applied the reasoning in Wilkinson v City of York Council and Griffiths v Liverpool Corporation: causation did not require proof of a separate negligent breach where the statutory duty and statutory limitation operated in the manner identified.
5. Apportionment. Mr Lynn should have driven more cautiously. He had warning of possible ice, approached a bend at about 50 mph and failed to reduce speed sufficiently. His negligence and the Council’s breach both had causal potency. Applying section 2(1) of the Civil Liability (Contribution) Act 1978, responsibility was apportioned two thirds to the Council and one third to Mr Lynn. The Council was liable to contribute on that basis, rather than provide a complete indemnity.