From the Telegraph 10/11/09:
A motorist who spent two days on a life support machine after crashing on black ice is suing the Highways Agency for failing to grit the road properly.
The 47-year-old man, who is a member of the Royal Navy, sustained serious injuries after his car was involved in a three-vehicle collision at Trewint, near Launceston, Cornwall on Jan 21.
He spent three weeks in hospital and is still suffering health problems as a result of the crash.
The victim, from Liskeard, Cornwall, was one of 30 drivers whose cars crashed on a 40-mile stretch of the A30, which runs running from Okehampton in Devon to Bodmin, Cornwall.
No motorist has mounted a successful claim against the agency.
While minor roads are the responsibility of local authorities, the burden of maintaining trunk routes rests with the Highways Agency.
The accident took place more than a week before Britain was hit by the worst blizzards in decades, which led to a shortage of grit and salt throughout the country.
A Highways Agency spokesman said salt was aid on the road earlier in the day, it was washed away by showers. Then the temperature dropped freezing the surface water.
"We can't predict what the weather's going to be like just after it's been gritted, that's life. And even when roads are gritted, it's not magic - drivers still need to take a great deal of care."
While road users all owe a duty of care to one another, there is also little doubt that those responsible for maintaining the safety of roads owe a similar duty to those who use them. Both rock salt and grit are fickle substances and although excellent at preventing the icing-up of roads, are highly susceptible to being washed away by a simple rain shower.
Localised squalls which can wash away certain patches of laid salt makes the decision to re-grit very difficult – particularly within the confines of a tight budget. The salt can also be worn away by unexpectedly high levels of traffic on certain stretches of road and suggesting that all roads must remain perfectly gritted at all times during cold weather is simply unrealistic. That said, major trunk roads should always be treated as a priority in respect of gritting and a cautious, ‘better safe than sorry’ approach is far better than a laissez-faire one.
Should the claim succeed of course, it could pave the way for further action against the Highways Agency. Whether, though, within the confines of limited budgets, inaccurate weather reports and good old mother nature at her unpredictable best, the nation’s roads become any safer as a result of a humble personal injury case is another matter all together.
I actually researched this point not so long ago for a potential PI client myself.
ReplyDeletes41 of the Highways Act is the duty of the highway authority (be it local authority or the Highways Agenct) to "maintain the highway".
I seem to remember that there was some case that lead to the insertion of s41(1A) that states:
"In particular, 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."
Of course, it all comes back to "reasonably practicable" - and that's a question for the court that has been considered before in Pace v Swansea.
I therefore doubt a case in Cornwall will change the law dramatically.
1. The facts of the current blog are similar to the case of Pace V. Swansea CC 10.07.07 wherein witnesses had been examined at length by Justice Keyser before denying the claim of the injured and exonerating National Highways from any liability. The reasoning given by Justice Keyser is well founded that,” the mere happening of an accident as a result of ice on the road will not necessarily give rise to a claim if there had been a system for gritting or salting the road which had been carried out correctly”.
ReplyDeleteNo doubt the road users are responsible for their own safety and have a duty to take the road as they find it but the National Highway Authorities also owe a duty towards the public for the roads maintained by them.
Under section 41 of The Highways Act, 1980 the National Highway Authority has a duty to maintain highways maintainable at the public expense. Section 111 of the Railways and Transport Safety Act 2003 (This modifies Section 41 (1) (1a) of the Highways Act)states that,” In particular, 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 and ice."
Under Section Section 58 of the National Highways Acty, 1980 the Special Defences are available to National Highway Authorities:
(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defense (without prejudice to any other defense or the application of the law relating to contributory negligence) to prove that the authority had 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.
(2) For the purposes of a defense under subsection (1) above, the court shall in particular have regard to the following matters.
(a) the character of the highway, and the traffic which was reasonably expected to use it
(b) the standard of maintenance appropriate for a highway of that character and used by such traffic; 18
(c) the state of repair in which a reasonable person would have expected to find the highway:
(d) whether the highway authority knew, or could reasonable have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway
(e) where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, that warning notices of its condition had been displayed;
but for the purposes of such a defense it is not relevant to prove that the highway authority had arranged for a competent person to carry out or supervise the maintenance of the part of the highway to which the action relates unless it is also proved that the authority had given him proper instructions with regard to the maintenance of the highway and that he had carried out the instructions.
Statement of the Authority Spokesman that,” salt was laid on the road earlier in the day, it was washed away by showers. Then the temperature dropped freezing the surface water.” needs to be proved in the court of law. Evidence need to be laid of the personnel’s employed on the site, locals using the road regarding the maintenance of the road by authorities and general condition of the roads.
If an Authority can prove that it had in place adequate policies and procedures to maintain the highway, and the policies and procedures were being performed, and there was no prior knowledge of “the defect” before the incident date, the claim can be repudiated. Again this is a matter of evidence which has to be lead in court.
Wow... I think that's the longest comment I've ever had!
ReplyDeleteJust in case we were in doubt of the legal situation, eh? :p