28 October, 2020
The High Court has provided guidance on where the burden of proof lies in showing what "reasonably practicable" means in relation to claims brought for damages arising out of a highway authority's duty under S41(1A) of the Highways Act 1980 which states:
"In particular. the highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice."
In the case of Smithson v Lynn (D1) and North Yorkshire County Council (D2)  EWHC 2517 (QB) the court considered this. The claimant was a passenger in a car being driven by D1 when it was involved in an accident on a road for which D2 were the responsible highway authority.
The claimant alleged that D1 was driving too fast for the conditions and so lost control. D1 blamed the D2 highway authority on the basis that there was black ice on the road and that they had failed to grit adequately or at all.
The claimant settled its claim with D1 before trial leaving the argument between D1 and D2 as to responsibility for the accident, and where the burden of proof of showing "reasonable practicability", or the lack of it, for the purposes of S41(1A) lay.
The highway authority argued that the burden of proof always rests with the claimant, but the High Court decided that the burden was on the highway authority to prove it had done what was "reasonably practicable". The phrase was one that was used in legislation and regulations in other contexts where the burden lay on the defendant to prove they had done what was reasonably practicable and so the High Court saw no reason to depart from it in this context.
The High Court went on to consider what would amount to reasonable practicability. The highway authority did not have to take all steps falling short of being grossly disproportionate ones, but still had to consider it on a risk basis, balancing the likelihood and severity of an accident, against the cost of preventing or reducing it.
Having been on notice of previous accidents that evening, and the police having reported their concerns to the authority, the authority could and should have gone out to grit on the night in question. They did not, and so they were found to be majority liable. The driver was 1/3rd to blame for not driving safely for the conditions.
Winter is on the way, and, as ever, accidents will occur as a result of adverse weather conditions affecting our roads. Highway authorities should ensure that they have robust processes in place to deal with such conditions, and if claims are brought they will need to be in a position to show that they had done what was reasonably practicable to ensure the safety of road users. This will mean being flexible in the interpretation of Winter Maintenance Policies as situations arise and develop during adverse weather. This case should not be interpreted as meaning that Winter Maintenance Policies need to be rewritten, but that decision makers will need to be in a position to show that they had taken appropriate steps such that show that they had acted in a way that is reasonably practicable in each specific case.