16 December, 2010
The Court of Appeal has clarified the extent of the duty under section 41 of the Highways Act 1980 in relation to the presence of loose surface lying material on the highway.
This case followed the tragic accident of a man who died after he skidded whilst riding his motorcycle on a section of road where surface grit had accumulated. The wife of the motorcyclist brought a claim against the highway authority and the local authority. It was alleged that the highway authority had breached its duty under section 41 of the Highways Act 1980 by failing to maintain the highway and claimed that the local authority had been negligent by failing to adequately inspect or clean the road. The Court of Appeal found that the removal of surface-lying material from the highway was not required by section 41 of the Highways Act. Furthermore, it was held that there was no common law duty requiring the local authority to act. The loose surface lying material could not be considered to be part of the fabric of the road. The claim was therefore dismissed against the First Defendant the highway authority.
Forbes Insurance comment:
This is a significant case for highway authorities; a duty to remove all loose lying surface material from the highway would have imposed an overwhelmingly onerous duty on authorities. However we must offer a word of caution. The Court of Appeal allowed the appeal against the Second Defendant, it has been left open for the Claimant to argue that the cleaning of the road generally, with the exception of the sliver of tarmac created a trap and secondly, for the Claimant to claim that the sweeper had pushed grit on to the sliver. The case will therefore return to lower courts. The case of Shine v Tower Hamlets London Borough Council  EWCA Civ 852 serves as a reminder that simply because there is no statutory duty under section 41 of the Highways Act, it does not mean that there will be no liability in negligence.