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Can Councils Be Sued For Not Clearing Snow & Ice

December 20, 2010

  • Fed up with snow blocked streets and icy pavements?
  • Fed up with your kids not getting to school for days and losing money or holiday allowance having to stay at home and look after them?
  • Has your business lost money as a result of all of this?

If you run a business that is losing money because of snow blocked or dangerous roads, is there something you can do to get the snow and ice cleared, whether or not you can also obtain compensation?

Can you sue your local Council for not clearing your streets?  And can you get compensation?

If you live in Scotland, the answer appears to be “yes” and “may be“, respectively.

If you live in England, Wales or Northern Ireland the answer to the first question seems to be “yes” and to the second can be “yes” in some and “no” in other circumstances.

Mayhem on our grit-free roads: Councils keener to ration supplies than keep the highways safe, says AA – UK’s Daily Mail 20th December 2010 By Colin Fernandez

Lawyers warned that failures to grit could result in motorists and businesses seeking compensation from councils through the courts.

London solicitor Clifford Miller said: ‘There is a question of whether failing to clear roads and keeping schools shut for four days is reasonable.  Many people think councils are costing their residents a lot of money and the economy billions in order to save themselves the pocket change it would take to clear the roads properly.

Read on for more ……

Comments and differing and alternative views are welcomed for the comments section below.

In Scotland

There is a specific legal duty to remove snow and ice. Section 34 of the Roads (Scotland) Act 1984 provides that:

A roads authority shall take such steps as they consider reasonable to prevent snow and ice endangering the safe passage of pedestrians and vehicles over public roads.

If someone is injured or their property is damaged as a result of say an accident, they may be able to obtain compensation for the direct loss and damage and may also be able to obtain compensation for consequential financial losses.

But if you suffer only a financial loss and no loss or damage directly to yourself or your property, the position appears to be less clear in England.  A Scottish lawyer can tell you more if the position is different in Scotland.

In England

The question of whether local Councils were obliged to clear snow and ice from the highways  under their obligation to maintain the highways [under section 41 Highways Act 1980] was considered by the English House of Lords in an appeal decided in June 2000: [Goodes v. East Sussex County Council [2000] UKHL 34]. The case being considered was where black ice had formed over the matter of a few hours  in the early hours of one morning and which may have melted soon in daylight.

The result was that the obligation to maintain the highways covered repairing the existing fabric of the highway but did not also extend to clearing snow and ice.  Goodes v. East Sussex appears to have decided that a failure to maintain the highway constituted a nuisance, for which there was strict liability, but the obligation could only be enforced by bringing proceedings on indictment in the nature of a prosecution for public nuisance and not for damages.

As the House of Lords was then the highest English legal judicial authority that might seem an end to the matter. But is it?

There is now no doubt there is a duty on local Councils to clear snow from the highways. Since 31st October 2003:-

… a 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.“
[Section 41(1A) of the Highways Act 1980 as amended by section 111 Railways and Transport Safety Act 2003 (c. 20)]

A special defence, under section 58, applies where the Council has taken “such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic” (which includes pedestrians).

Section 50 of the Highways Act 1980 also specifically imposes an obligation to clear an accumulation of snow if it forms an “obstruction”.  If it is not fulfilled anyone may apply to a magistrates court for a order requiring the snow to be removed in such period as the Court considers reasonable [being not less than 24 hours].

So the obligation can be enforced.

Can you claim compensation?

A separate claim in negligence was made in Goodes v. East Sussex but was not pursued.  It is not clear from the judgement whether this was a consequence of the Courts below finding that they were obliged to decide [by prior Court decisions] that the duty of Councils to maintain the highways included clearing snow and ice.

Is a claim in negligence possible?  “Yes” according to George Pullman QC [who also was considering places like carparks].  And alternatively “normally no but maybe sometimes” according to Jonathan Mitchell of Ropewalk Chambers [when considering highways and not other areas like car parks].

An extract of George Pullman QC’s view:

Negligence at common law was not excluded by the House of Lords in Goodes. It was not excluded because the point was not argued at all. It follows that claims in negligence could be successful if there has been negligence in failing to put down salt and this negligence caused the car to skid.

….

Before commencing a claim in negligence there are several important points to note:

  1. some Highway Authorities are under the mistaken belief that they cannot be liable for claims for personal injury arising from a failure to de-ice their roads. They are wrong if the liability is for negligence not a breach of section 41(1) of the Highways Act 1980;

Injury Law – Goodes – have we got it wrong? 01.05.2003

An extract of Jonathan Mitchell’s view:-

it is worth considering whether or not the action can be framed in negligence, on the grounds that the highway authority has acted positively to create the danger, rather than the negative allegation that it failed to act to remove it, a claim which (it is now certain) cannot succeed.”

Accidents on the Highway – Is Negligence Dead?

A very recent case demonstrates that damages can be obtained for injury and loss if the duty is not met: West Sussex County Council v Russell [2010] EWCA Civ 71 (12 February 2010).

Section 41(1A) now provides a specific obligation to ensure roads are safe from snow and ice.  There is no specific remedy for failure to do so. Where a statute provides a specific remedy, a claim for breach of a statutory duty might fail because it may be held that the remedy specified in the statute was the sole remedy Parliament intended.  For section 41 there is no such remedy suggesting a  remedy in breach of statutory duty is available.

Unless a claim in negligence can be brought, an action to enforce in public nuisance will not also attract a claim for financial compensation.

Section 50 Highways Act 1980 provides a statutory duty to clear an accumulation of snow if it forms an “obstruction” and a remedy to that problem.  The “remedy” is applying to a magistrates court for an order to clear the snow.   A surface accumulation is not an “obstruction” but a hazard to safe navigation particularly if you can drive on it as is the case for many roads.  To suggest someone injured in a road traffic accident could complain to a magistrates court to have the accumulated snow removed is not a remedy for the harm caused.

Can You Get Compensation?

If you are injured or suffer loss or damage to property you may be able to maintain a claim.  If you have suffered financial loss only it seems you are unlikely to be able to recover compensation.

But you can still in one way or another force the Council to clear the snow.

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