Lord Slynn of Hadley
Section 41(1) of the Highways Act 1980 requires a Highway Authority for a highway maintainable at the public expense "to maintain the highway." By Section 329(1) of the Act ".... 'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
On 14 November 1991 at 7.10 in the morning, Mr. Goodes was driving his car on a highway maintainable by East Sussex County Council. The car skidded on ice on the road and crashed into the bridge. Mr. Goodes was gravely injured. He has claimed damages from the Highway Authority for breach of their duty to "maintain the highway". In view of what the Authority's officers knew of the forecast weather conditions at that time of the morning, they should have taken steps in sufficient time to put down salt or grit and thus to prevent the ice forming. Whether the gritting lorry which had been scheduled to cover the road could and should have arrived earlier in time to prevent ice forming has been contested at the trial and before the Court of Appeal.
The issue before your Lordships has, however, been whether the duty to "maintain" includes a duty to keep the road safe by preventing ice from forming. It has not been contended that there is a liability at common law in negligence.
As a matter of ordinary language "maintain" is wide enough to include the taking of preventive steps and to include steps to keep the road safe for ordinary use by motor cars. Gritting is a perfectly normal practice and no suggestion is made that extraordinary or novel steps should have been taken. If this Act stood alone, there would be much force in the conclusion of the majority in the Court of Appeal that there could be liability in some circumstances for a failure to maintain by keeping the road safe subject to the Local Authority establishing a defence under section 58(1) of the Act 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.
The Act of 1980 cannot, however, be seen in isolation. Section 41 has its antecedents in earlier legislation and in the obligations of the inhabitants of the parish responsible for keeping a highway in repair. My noble and learned friend Lord Hoffmann, whose speech I have had the advantage of reading in draft, has analysed the extent of the duty both by statute and at common law. I agree with his conclusion that the earlier obligation to maintain or repair a highway would not have included preventing the formation of ice or danger created by snow and that "maintain" in section 41(1) and "maintenance" in section 329(1) must be read in the same way.
Accordingly, despite the admirable arguments of Mr. Ross, I agree that the appeal should be allowed and the action dismissed.
I have had the advantage of reading the draft the speeches of Lord Slynn of Hadley and Lord Hoffmann. For the reasons they have given I would also allow the appeal.
1. THE ACCIDENT
At dawn on a frosty November morning in 1991 Mr. Geoffrey Goodes was driving his Ford Capri on the A267 at Wellbrook Hill near Mayfield in Sussex. As he moved out to overtake on a straight stretch of road, a rear wheel skidded on a patch of black ice. He lost control and the car crashed into the parapet of the bridge over the Wellbrook. He suffered dreadful injuries and is now almost entirely paralysed.
2. THE ISSUE
Mr. Goodes claims damages against East Sussex County Council on the ground that it was in breach of its statutory duty under section 41(1) of the Highways Act 1980 to "maintain the highway." He does not complain that there was anything wrong with the road surface. In freezing weather, black ice can form on the best laid surfaces. But he says that the council should have prevented the formation of the ice by spreading salt and grit on the road before dawn. So the short point in this appeal is whether the duty under section 41(1) is confined to keeping the highway in good repair or whether it also obliges the council to keep it free of ice. The statement of claim also contained an allegation that the council had been guilty of common law negligence. But this was not pressed at the trial and has disappeared from the case. The courts below said that they were bound by previous authority to hold that section 41(1) imposed the wider duty. But the Court of Appeal gave leave to appeal so that those authorities could be examined in your Lordships' House. There was a difference of opinion on whether the council had complied with the duty. The judge held that it had done enough and dismissed the action. In the Court of Appeal  R.T.R. 210 Aldous L.J. agreed. But the majority (Hutchinson and Morritt L.JJ.) held that the council was in breach and allowed the appeal.
3. THE COUNCIL'S PRACTICE
Although the council denies it has a statutory duty to keep the roads free of ice, it does in fact make considerable efforts to do so. The Highway Superintendent receives weather forecasts from the Southampton Meteorological Office and decides whether and when to send out the council's fleet of gritting lorries. Each lorry has a route to cover. The council follows a Code of Good Practice issued by the Association of County Councils and three other local authority associations. This says, among other things, that the salting should be completed before the morning rush hour begins at 7.30. In the present case there had been a forecast of freezing conditions in the early hours and the lorries had been despatched at 5.30. Unfortunately, by the time of the accident, the lorry covering the A267 had not yet got to Wellbrook Hill. It arrived a few minutes later and would have been able to complete its route by 7.30. But a majority of the Court of Appeal decided, on the assumption that the statute imposed a duty to keep the road free of ice, that the council was nevertheless in breach of duty. The gritting should have been completed before the time when, according to the forecast, ice was likely to form.
4. STATUTORY CONSTRUCTION
There is a partial definition of "maintain" in section 329(1) of the Act of 1980. It provides that "'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."
The Act of 1980 was a consolidation Act and section 41(1) and the accompanying definition reproduced identical provisions which had first appeared as section 44(1) and section 295(1) (the definition clause) of the Highways Act 1959. There is nothing to suggest that any change of meaning was intended. The Highways Act 1959 was also a consolidation Act. The long title was "An Act to consolidate with amendments certain enactments relating to highways." But there is no exact antecedent of section 44(1) and the definition.
Mr. Ross, who appeared for Mr. Goodes, put forward an attractive argument on construction. He said that although the Act of 1959 was a consolidation Act, the court should interpret section 44(1) in the same way as if it formed part of a new Act. This was for two reasons. First, it was not simply a consolidation Act. It also contained amendments. Section 44(1) might therefore have been intended to amend the previous law by extending the duties of highway authorities from maintenance of the fabric to other forms of maintenance necessary to prevent the highway from being dangerous to the public. Secondly, even in the case of a pure consolidation Act, the courts should not delve into the antecedent legislation unless the obscurity of the statutory language made it necessary to do so. As Lord Wilberforce said in Farrell v Alexander  A.C. 56, 73:
self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve.
Mr. Ross said that there was no real ambiguity about section 44(1) read with the definition. If maintenance "includes" repair, it must also include something else. Thus the concept must be wider than merely repairing the fabric of the highway. As a matter of ordinary language, "maintenance" is capable of including salting and gritting. No one would think it an odd use of language to say that the gritting lorries were used for highway maintenance. Furthermore, if one looks to the purpose of the legislation, the reason why a highway authority is under a duty to maintain the highway is to ensure that it can be used with safety by members of the public. By 1959 it was recognised that this required the removal of snow and ice. Highway authorities had in practice been spreading salt and grit on the roads for a number of years. It would be anomalous if the highway authority had a duty to eliminate potholes but was not required to do anything about the more insidious hazards of black ice. Another anomaly would be the distinction between the duty of a highway authority in respect of the dangerous state of the highway and the liability of an adjoining owner in public nuisance for causing danger to persons on the highway. The latter would be far more strict: for example, in Slater v Worthington's Cash Store Ltd.  1 K.B. 48 a property owner was held liable for failing to remove snow from his roof, so that a minor avalanche injured a passer-by on the pavement.
5. HAYDON v KENT COUNTY COUNCIL  Q.B. 343
My Lords, I have said that Mr. Ross's argument was attractive and in Haydon v Kent County Council  Q.B. 343 it was accepted in principle by the majority (Reginald Goff and Sebag Shaw L.JJ.) in the Court of Appeal. It was however rejected by Lord Denning M.R. In a judgment written at the age of 78 which, if I may say so with respect, displays to the full his formidable learning and powers of analysis and lucid exposition, he explained why, notwithstanding the definition, the liability to "maintain the highway" was concerned only with keeping the fabric in repair. The majority opinion was followed by the Court of Appeal in Cross v Kirklees Metropolitan Borough Council  1 All E.R. 564 and in the present case, reported in  R.T.R. 210. My Lords, I will say at once that I find the judgment of Lord Denning M.R. completely convincing. Perhaps I really need to say no more. But out of respect for Mr. Ross's argument I shall give my reasons in my own words.
6. THE CONTEXT OF THE ACT OF 1959
My Lords, I quite accept that as a matter of ordinary speech, the "maintenance" of the highway is capable of including salting and gritting and the removal of ice and snow. On the other hand, the context in which the words appear may give them a narrower meaning. It seems to me quite impossible, in construing the Act of 1959, to shut one's eyes to the fact that it was not a code which sprang fully formed from the legislative head but was built upon centuries of highway law. The provisions of the Act itself invited reference to the earlier law and in some cases were unintelligible without them.
Thus section 38(1) provided that thenceforth "no duty with respect to the maintenance of a highway shall lie on the inhabitants at large of any area." Section 38(2) provided that a highway which, immediately before the commencement of the Act, was maintainable by the inhabitants at large or maintainable by a highway authority, should be, for the purposes of the Act, a highway "maintainable at public expense."
In order to understand these provisions, it is necessary to know that at common law the "inhabitants at large" of a parish were under a duty to keep its highways in repair. The Act was thus using "maintenance", in the defined sense, as equivalent to the previous duty of the inhabitants at large, which was to keep the highways in repair. The common law duty was enforceable by proceedings on indictment in the nature of a prosecution for public nuisance. By a series of statutes commencing in the 16th century, parishes were authorised or required to organise their affairs by levying a highway rate and appointing a "surveyor of highways" to whom the parish would entrust the duty of maintaining the highways and the necessary funds. This legislation was consolidated in section 6 of the Highways Act 1835 which provided that "every parish maintaining its own highways" should appoint a surveyor who should "repair and keep in repair the several highways in the said parish." But the surveyor was the agent of the inhabitants at large. The duty remained upon them and the surveyor was not liable on indictment or in damages. During the 19th century, however, the duty to maintain highways was in many cases transferred, by Highways and Public Health Acts, from the inhabitants to statutory highway authorities. It was this process which was completed by section 38 of the Highways Act 1959, abolishing any remaining liability of the inhabitants at large and transferring the responsibility for maintaining all "highways maintainable at public expense" to the highway authorities constituted under the Act. In my opinion, if one reads sections 38 and 44 together, the duty to maintain under section 44(1) is the same duty as that which common law or statute imposed before the Act upon the inhabitants at large or, by succession, the previous highway authorities.
7. THE COMMON LAW
The Act of 1959 (following earlier legislation) provided, in place of the old remedy by way of indictment, a procedure of complaint to the Crown Court which is now contained in section 56 of the Highways Act 1980. But the nature of the duty remained the same. It was described by Diplock L.J. in Griffiths v Liverpool Corporation  1 Q.B. 374, 389:
The duty at common law to maintain, which includes a duty to repair a highway, was not based in negligence but in nuisance. It was an absolute duty to maintain, not merely a duty to take reasonable care to maintain, and the statutory duty which replaced it was also absolute.
The duty is not absolute in the sense that the road has to be perfect. As Diplock L.J. explained in the later case of Burnside v Emerson  1 W.L.R. 1490, 1497, the duty is to put the road:
in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.
But the highway authority has an absolute duty to maintain the highway in a state which satisfies this objective standard. It must levy whatever rate is necessary for the purpose. If the condition of the highway falls short of the statutory standard, the highway authority is in breach of duty. It is no answer that it took all reasonable care or that its resources were insufficient.
8. THE COMMON LAW EXEMPTION
Although the common law imposed upon the inhabitants at large a duty to maintain highways irrespective of their resources, it did not impose upon them the additional financial burden of paying compensation to anyone who suffered damage because of a failure to repair. An individual had no cause of action. When the duty to maintain was transferred to highway authorities, the courts decided, in a series of decisions approved by the House of Lords in Cowley v Newmarket Local Board  A.C. 345, that no action in tort lay against the highway authorities either. This exemption from liability for damages was preserved by section 298 of the Act of 1959, which (omitting some irrelevant words), read as follows:
.... [N]othing in this Act with respect to the duty of highway authorities to maintain highways maintainable at the public expense shall be construed as affecting any exemption from liability for non-repair available to a highway authority immediately before the commencement of this Act as the successor to the inhabitants at large.
The "duty of highway authorities to maintain highways maintainable at the public expense" is a reference to the duty imposed by section 44(1). That duty is expressed to be subject to an existing exemption from liability for non-repair which is available to the highway authority "as successor to the inhabitants at large." This again indicates that the duty under section 44(1) was intended to be the same as that which previously existed.
Only two years after the Act of 1959, the exemption was abolished and section 298 repealed by the Highways (Miscellaneous Provisions) Act 1961. It is by virtue of this change in the law that Mr. Goodes brings his action. To mitigate the effect of allowing a private cause of action for breach of an absolute duty, the Act gave highway authorities a special statutory defence, which is now in section 58 of the Highways Act 1980. The authority is not to be liable if it proves that it took "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." Section 58(2) specifies various matters to which the court should have regard in deciding whether the highway authority has made out its defence.
Mr. Ross submitted that the Act of 1961 had enlarged the duty of the highway authority and made it a general duty to take reasonable care to secure that the highway was not dangerous to traffic. This was the view taken by Sellers L.J. in Griffiths v Liverpool Corporation  1 Q.B. 374. But his was a minority opinion and I think it was wrong. The Act of 1961 left the duty in section 44(1) untouched. It created a private law remedy in damages for breach of that duty, subject to the statutory defence. But the scope of the duty continued to be whatever it had been before.
9. THE SCOPE OF THE DUTY BEFORE 1959
It seems clear that before the Act of 1959, the duty to maintain the highway, whether imposed upon the inhabitants at large by common law or transferred to highway authorities by statute, was not considered to include a duty to remove ice or snow. Still less was there a duty to take steps in advance to prevent ice forming or snow settling. In the nature of things, the authorities are sparse because ice and snow are transient and therefore unlikely to be the subject of proceedings by indictment. But there are three sources of material which put the matter beyond doubt.
First, there is the existence of special statutory provisions for dealing with ice and snow.
Secondly, there are dicta in cases in which attempts were made to bring actions for damages based upon breaches of the duties imposed by the special provisions.
Thirdly, there are dicta in cases in which a special statutory duty to maintain the highway did, exceptionally, create a private cause of action.
Examples of the first two are to be found in litigation about highways in London and the third in actions under provisions of the Tramways Act 1870.
(a) The streets of London
The streets of early 19th century London were filthy. Mud, rubbish and horse and cattle manure as well as snow and ice in winter often made them dangerous and unpleasant. But the highway surveyors of the London parishes were under no duty to clean the streets or take any other steps to remove dirt, snow and ice. Readers of Dickens or Mayhew will be aware that in the first half of the 19th century, gangs of small boys made a precarious living off tips by sweeping crossings to clear a passage for pedestrians to cross the road.
Section 96 of the Metropolis Management Act 1855 constituted the vestries or boards of works of the London parishes as highway authorities and transferred to them the powers and duties of the parish highway surveyors. But the special provision made for keeping the highways free of dirt, ice and snow shows that the general duty to maintain them was regarded as confined to keeping the fabric in repair. Earlier legislation, such as section 63 of the Metropolitan Paving Act 1817, had required householders to sweep the pavements adjoining their houses daily during periods of frost and snow. The pavements were of course part of the highway. The private duty was not very effective and section 117 of the Act of 1855 provided that, without prejudice to the liability of the householders, the highway authorities should cause the footways to be "scraped, swept or cleansed in such manner and at such times as they think fit." The private enterprise of crossing sweepers was also replaced or supplemented by a power given to the parishes under section 118 to employ crossing sweepers "distinguished by their dress or some distinctive mark as public servants."
The obligations of the householders were finally abolished by section 29 of the Public Health (London) Act 1891, which provided instead that:
It shall be the duty of every sanitary authority to keep the streets of their district, which are repairable by the inhabitants at large, including the footways, properly swept and cleansed so far as is reasonably practicable, and to collect and remove from the said streets, so far as is reasonably practicable, all street refuse.
The "sanitary authorities" for the purposes of public health legislation were the same as the highway authorities under the Act of 1855 and "street refuse" was defined to mean "dust, dirt, rubbish, mud, road scrapings, ice, snow and filth." In default, the sanitary authority was to be liable to a fine.
In Saunders v Holborn District Board of Works  1 Q.B. 64 the Divisional Court decided that a breach of the duty to remove snow did not give rise to a private law cause of action, any more than a breach of the duty to maintain the highway. Mr. Saunders had been injured when he slipped on an icy pavement. In the course of his judgment, Charles J. said, at p. 69 that until the Act of 1891 was passed, "it was not the duty of the sanitary authority to take any steps to clear the streets of ice and snow." It was a duty, which, as Mathew J. said, at p. 67, "formerly rested upon the householders."
(b) Other provisions about snow and ice
There is a specific duty to remove snow and ice in the law of Scotland. 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.
There are also English provisions about accumulations of snow which obstruct the highway. Section 26 of the Highways Act 1835 provided:
if any impediment or obstruction shall arise in any highway from accumulation of snow .... the surveyor is required from time to time, and within 24 hours after notice thereof from any justice of the peace of the county in which the parish may be situate, to cause the same to be removed.
A similar provision in more modern terms is to be found in section 150(1) of the Highways Act 1980. But the existence of specific provisions dealing with obstruction show that the removal of obstructions was not in itself regarded as falling within the concept of maintenance, although it might be sometimes be necessary to remove an obstruction in order to maintain the road: see Reg. v Heath (1865) 6 B. & S. 578; Reg. v Inhabitants of Greenhow (1876) 1 Q.B.D. 703. In Guardians of the Poor of the Union of Amesbury v Justices of the Peace of the County of Wiltshire (1883) 10 Q.B.D. 480, 483, the Divisional Court (Cave and Day JJ.) decided that the removal of snow which obstructed the main roads of the district of a highway authority was an "expense incurred in the maintenance" of the highways for the purposes of obtaining a contribution from the county under section 13 of the Highways and Locomotives (Amendment) Act 1878. But I think that the decision must be regarded as specific to that Act.
(c) The tramway cases
Section 28 of the Tramways Act 1870 imposed upon a tramway company a duty to "maintain and keep in good condition and repair," to the satisfaction of the highway authority, the part of the road which lay between the rails. The granite setts between the tramlines of the Dublin United Tramway Company in Grafton Street had become worn and slippery so that they were dangerous in wet weather. The highway authority directed them to make the road safe by putting down sand or in some other way. In Dublin United Tramways Co. Ltd. v Fitzgerald  A.C. 99 the plaintiff sued for injury suffered when his horse fell on the stones. When the case came before the House of Lords, there seems to have been no dispute that the statute created a private right of action. But the defendants said that they had no obligation to remedy transient conditions of rain or snow by putting down sand. The House of Lords accepted that the company's only duty was to maintain the fabric of he highway in a reasonably safe condition. If the surface were in proper repair, there would be no further obligation to deal with transient weather conditions. It was only because the setts had become worn and slippery that they were obliged to do anything at all. Sanding was merely one way in which they could remedy the fact that the surface was not in good repair.
This case was followed by the Divisional Court in England in Acton District Council v London United Tramways  1 K.B. 68, in which the question was whether the removal of four or five inches of snow from the tramway in Acton High Street was within the duty to maintain the highway imposed by section 28 of the Act of 1870. The Divisional Court decided that it was not.
10. THE DUTY IN 1959
The Act of 1959 was, as I have said, simply intended to transfer the existing duty to maintain the highways from the previous highway authorities or the inhabitants at large to the highway authorities constituted by the Act. If, therefore, the previous duty to maintain did not include a duty to remove snow or ice, the duty under section 44(1) did not do so either. Why, then, did the definition clause say that maintain "includes" repair? Previous legislation had used the words "maintain," "repair," "maintain and repair," "repair and keep in repair" without apparently intending any difference in meaning. It is not easy to fathom the draftsman's mind but one clue may lie in a remark of Diplock L.J. in Burnside v Emerson  1 W.L.R. 1490, 1496-1497 which I have already quoted in part:
The duty .... is .... not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.
The draftsman may have thought that if he used only the word "maintain", it might be argued that the authority had only to maintain the road in its existing condition. The addition of "repair" was to make it clear that, if the road was not in an appropriate state of repair, the authority was under a duty to ensure that it was. But whether the word was "maintain" or "repair", the duty was, as Diplock L.J. said, to enable it to be used without "danger caused by its physical condition."
11. EXTENDING THE DUTY
Assuming against himself that the law in 1959 shows that the duty to maintain the highway did not include the removal of ice or snow, Mr. Ross submitted that it should move with the times. Public expectations change and what might have been regarded as sufficient maintenance in Victorian days would not necessarily be adequate in 1959 or now. The use of vehicles moving at much higher speeds makes ice on the road a far greater hazard, which requires a higher standard of maintenance. In Attorney-General v Scott  2 K.B. 160, 168, Jelf J. said, in a judgment approved by the Court of Appeal, that a highway authority should "maintain the road according to an up-to-date standard" (in that case, to permit the passage of traction engines.)
This again is an attractive argument, but I am afraid that I cannot accept it. It must be remembered that the duty in question is an absolute one and in this context there seems to me an important difference between a duty to maintain the fabric of the road in good repair and a duty to prevent or remove the formation or accumulation of ice and snow. In the case of the duty to repair, the road either satisfies the objective test formulated by Diplock L.J. in Burnside v Emerson  1 W.L.R. 1490, 1497 or it does not. The requirements of that objective test may become more exacting with the passing of the years, but the court (or in former times the jury) can examine the highway and decide whether it meets the test or not. The highway authority can, by periodic inspection, preventive maintenance and repair, keep the highway in accordance with the necessary standard. If it does not, it can be ordered by the court under section 56(2) of the Act of 1980 to "put it in proper repair within such reasonable period as may be specified in the order." But an absolute duty to keep the highway free of ice would be an altogether different matter. No highway authority could avoid being from time to time in breach of its duty, which would apply not merely to fast carriage roads but to all highways, including pavements and footpaths. And the machinery of the Act for "Enforcement of liability for maintenance" (as sections 56-58 are headed) would hardly be appropriate. There would be no question of ordering the highway authority to comply with its duty. In the present case, the highway would have been properly maintained except for the period between when the ice formed at dawn and when it melted an hour or two later.
The majority of the Court of Appeal in Haydon v Kent County Council  Q.B. 343 were aware of this difficulty and tried to meet it by reformulating the scope of the duty. Goff L.J. said, at p. 363, that the highway authority would be in breach of duty only if:
having regard to the nature and importance of the way, sufficient time [has] elapsed to make it prima facie unreasonable for the authority to have failed to take remedial measures. Then the authority is liable unless it is able to make out the statutory defence.
The judgment of Shaw L.J. on this point is obscure but he is generally taken as having concurred in the test propounded by Goff L.J.
It seems to me, my Lords, that this test avoids the extravagant consequences of extending the absolute duty only by sacrificing its absolute character. Instead of considering only the question of whether the state of the highway satisfies the standard of being "reasonably passable for ordinary traffic" it shifts attention to the question of whether it was reasonable of the authority to have failed to take remedial measures. In Griffiths v Liverpool Corporation  1 Q.B. 374, 379, Diplock L.J. interjected in the course of argument: "The defendants had a statutory duty to maintain the highway and the question of reasonable care has no relevance." That is certainly not true of the statutory duty as formulated by Goff L.J. It appears to incorporate considerations more appropriate to the statutory defence under section 58. And although it is said that there is a breach of duty when it is "prima facie" unreasonable not to have taken remedial measures, I find it hard to imagine a case in which the highway authority could be held in breach of duty but succeed in making out the statutory defence.
Judges called upon to apply the test have since pointed out that it gives no guidance on the matters to be taken into account in deciding whether the highway authority was unreasonable in failing to take remedial measures. Does one take its resources into account or not? If the question is whether the conduct of the authority was unreasonable, it would be strange if resources could not be considered. But this would be contrary to the way in which the absolute duty has always been construed. In Cross v Kirklees Metropolitan Borough Council  1 All E.R. 564, 575, Sir Ralph Gibson said that he thought that in Haydon v Kent County Council  Q.B. 343 Lord Denning M.R. had been right. He added:
If section 41 is to be construed as capable of imposing a duty to take remedial measures to deal with ice and snow on a highway, or footway, which is in good physical repair, so that whether in particular circumstances that duty has arisen is to be decided 'as a question of fact and degree,' it would seem that the facts relevant to determining whether the duty has arisen would be essentially similar to those relevant to deciding whether a breach of the duty has been proved and whether the statutory defence under section 58 has been made out. Parliament did not define those facts for the purpose of section 41.
The concept of the passing of sufficient time to make it prima facie unreasonable for the highway authority to have failed to take remedial measures must presuppose some idea of the amount and nature of the resources for dealing with snow and ice which are or ought to be available to the authority, and of the order of priority among different carriageways and footways which guides or which ought to guide the authority; and of the necessary degree of urgency in using those resources. No such guidance is given in the statute with reference to proof of the arising of the duty.
In the present case in the Court of Appeal,  R.T.R. 210, 217, Hutchinson L.J. quoted these remarks and said that he agreed with them. He added:
It seems to me that the application of the test which these authorities lay down is a task beset with difficulties attributable to the imprecision of the formula and lack of any guidance as to the criteria to be taken into account.
Mr. Ross met this formidable criticism by submitting that there should indeed be an unqualified and absolute duty to maintain the roads free of ice or snow, which could be a danger to safe passage. Thus the simplicity and consistency of the old law would be maintained. If it appeared to set impossibly high standards for highway authorities, the answer lay in the statutory defence under section 58 of the Act of 1980. That would enable them to resist claims in all cases except when they had acted unreasonably.
My Lords, it seems to me that this is a view which Parliament might take. There is obviously a case for saying that a person who suffers a catastrophic accident as a result of the presence of ice which, in modern conditions, the highway authority could reasonably have prevented or removed, should have a remedy. I say nothing about whether the facts of the present case fell within this description, a question on which the Court of Appeal were divided. But I am quite satisfied that Parliament has not yet provided such a remedy and that, in debating whether to do so, it is likely to wish to consider the question of fairness to other plaintiffs who have suffered injuries otherwise than by negligence as well as the resource implications for local authorities and the criteria by which their efforts should be judged. If I may quote Lord Denning M.R. in Haydon v Kent County Council  Q.B. 343, 360:
If section 44 [of the Act of 1959] meant that the highway authority were under a duty - an absolute duty - to remove snow and ice, they would be given an impossible task. Section 44 applies to all highways without exception. It applies not only to major roads but also to minor roads. It applies to main roads and country lanes. It applies to by-ways, bridle paths, and footpaths. It applies to all such ways, no matter whether they are little used or much used. Every single one of them is likely to become slippery and dangerous when there is snow and frost...Every one of them must be made safe - without any exception - if section 44 is given the wide meaning contended for. The section gives no priority to main roads over country lanes; or to much-used footpaths over little-used footpaths. If the highway authority were bound to clear all those of snow and ice whenever they become slippery or dangerous, they would require an army of men with modern machines and tools stationed at innumerable posts and moving forward in formation whenever there was a severe frost.
To say that the highway authority can rely upon the defence under section 58 does not seem to me good enough. Section 58 may give the authority a defence to a claim for damages but it is still in breach of the absolute duty. I do not think it is an admissible construction of section 44(1) of the Act of 1959 (and therefore of section 41(1) of the Act of 1980) to hold that it was capable of judicial extension to create a duty not only more onerous but different in kind from that which had existed in the past.
I would allow the appeal and restore the judge's decision to dismiss the action.
I have no difficulty in holding that section 41 of the Highways Act 1980 imposes an absolute duty on the highway authority. There is no hardship in so holding since the section has to be taken along with section 58 which provides a defence that reasonable care has been taken by the authority. The scheme of the provisions is in its broad effect that the authority should be liable for damage caused by a failure to take reasonable care to maintain a highway, but the injured party is not required to prove the failure to take reasonable care. It is for the authority to prove that it has exercised all reasonable care. Such a reversal of the onus which would have been imposed on the plaintiff in an action for damages at common law is justifiable by the consideration that the plaintiff is not likely to know or be able readily to ascertain in what respects the authority has failed in its duty. All that the plaintiff will know is that there is a defect in the road which has caused him injury and it is reasonable to impose on the authority the burden of explaining that they had exercised all reasonable care and should not be found liable.
But the question in the case is precisely what is the meaning and scope of the absolute duty. The point is not immediately solved by the terms of the definition in section 295 of the Act because the ambiguous term "includes" is used. Maintenance certainly includes the work of repair and the taking of measures which will obviate the need to repair, to forestall the development of a defect in the road which will, if allowed to develop, require remedial action. The standard of maintenance is to measured by considerations of safety. The obligation is to maintain the road so that it is safe for the passage of those entitled to use it. But the question still remains as to precisely what is the scope of that maintenance. It certainly requires that the highway be kept in a structurally sound condition. The question is whether, as the respondent claims, it extends also to the removal of ice which has formed on the surface of the road as a natural consequence of the weather. The appellant contends for a narrower construction which excludes the removal of ice, or indeed of snow.
The matter is one of construction of the statutory language. I have come to the conclusion that the narrower construction is to be preferred. The obligation relates to the physical or structural condition of the highway. To use the words of Diplock L.J. in Burnside v Emerson  1 W.L.R. 1490, 1496-1497 in a passage quoted by Lord Denning M.R. in Haydon v Kent County Council  Q.B. 343, 357 the obligation is to keep the highway:
in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition.
I can note quite briefly the reasons for the view which I have reached.
First, in the ordinary use of language I would not strictly describe the removal of ice from the surface of the road as maintaining the highway. By the highway is meant the stretch of land over which people may pass rather than the rights of passage which they may enjoy. The removal of ice may be a maintaining of the use of the highway or facilitating or easing the access which the highway provides, but it is not a maintaining of the highway itself. Where the physical surface of a road has become smooth, giving rise to a danger in wet conditions, the addition of sand to supply the grittiness which the roughness of the fabric of the road formerly possessed can be described as repair or maintenance. That was the case in The Dublin United Tramways Company Limited v Fitzgerald  A.C. 99, 109-110 where, as Lord Robertson observed, the surface of the roadway was part of the structure or fabric of the roadway, and, if the authority used materials having a kind of surface which would be in bad condition in wet weather "they must from time to time supply by sand to this material what other materials might of themselves in all conditions supply by the roughness of their own surface." But that situation is quite different from the removal or dissolution of something which has been superimposed upon the surface of the highway where the surface in itself is in good condition.
Secondly, a consideration of the law relating to the maintenance and repair of highways up to the passing of the Highways Act 1959 supports the adoption of the narrower construction. On this I would refer with gratitude to the review of the earlier law which has been presented by my noble and learned friend Lord Hoffmann in the speech which he has just delivered. Particularly striking to my mind is the express reference in section 298 of the Act of 1959 to the "exemption from liability for non-repair available to the highway authority immediately before the commencement of this Act." If the scope of the duty of maintenance extended beyond matters of repair it would seem extraordinary that there should be no exemption from liability for those further matters and exemption preserved only for failures in repair. The section more probably reflects the whole scope of what was intended to be comprised in the duty of maintenance.
Thirdly, I find some assistance in the meaning attributed to the word "maintain" in section 25(1) of the Factories Act 1937. That section provided that "All floors .... shall be of sound construction and properly maintained." Of course the context and the precise phraseology are different, but the purpose of securing the safety of a factory floor may be comparable with the purpose of securing a safe highway. In Latimer v A.E.C. Ltd  A.C. 643 the plaintiff slipped due to the presence of a film of oil on the surface of the floor. Lord Reid observed, at p. 656:
The question then is whether section 25(1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even so, keeping the surface of a floor free from dangerous material does not appear to me to come within the scope of maintaining the floor.
Fourthly, if, as I have held, the duty imposed upon the authority is an absolute one, then it would seem appropriate not to adopt any wider construction of the scope of the duty than is necessary. To hold that they suddenly become in breach of duty in respect of all their highways wherever snow falls or ice forms on them so as to create a danger and they correspondingly become no longer in breach when perhaps a few hours later on a rise of temperature the snow or ice dissolves and the road is again safe seems to me to be bordering on the absurd. Of course if the matter was one of an action for damage, section 58 might avail to provide a defence in such a case. But while that section may mitigate the effect of the absolute nature of the duty under section 44 it does not determine the scope of that obligation. It seems to me that some at least of the problems to which snow and ice on highways may give rise are intended to be met by section 150, but that section does not assist the plaintiff in the present case.
Reference was made during the hearing to the corresponding statutory provisions in the Roads (Scotland) Act 1984 and I should make some comment about the position in Scotland. Section 1(1) of that Act imposes a duty on a local roads authority to manage and maintain the roads entered on the local list of public roads. In terms of section 151 "maintenance" includes, among other things "repair." But express provision is made by section 34 for the clearance of snow and ice in these terms:
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.
It would seem from this that the obligation to maintain in section 1 is not intended to include the clearance of snow or ice. The construction of the word "maintain," subject to the full terms of the statutory definition, may thus be in line with the construction of the corresponding language of the Highways Act 1980. In Scottish practice a roads authority may be open to liability for personal injury caused by the presence of snow or ice making the passage of pedestrians or vehicles over pavements or roads unsafe. An example, where in the circumstances the claim failed, can be found in Grant v Lothian Regional Council 1988 S.L.T. 533. The claim there was brought both under section 34 and at common law.
It might be thought that there should be a liability upon a highway authority in England and Wales for damages in the event of injury occurring through a failure to take sufficient measures to preserve the safety of the highways under conditions of ice and snow. But there is no remedy there available at common law and if the statute is construed in the way I have preferred there is no remedy under the statute. Attempts to achieve such a result by construction seem to me to involve a straining of the statutory language beyond what it can reasonably bear. If a remedy, with the financial consequences which it may involve, is desired, that is a matter for Parliament.
I would allow the appeal.
Lord Hobhouse of Woodborough
I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Hoffmann.
Farrell v Alexander  A.C. 56; Slater v Worthington's Cash Store Ltd  1 K.B. 48; Haydon v Kent County Council  Q.B. 343; Cross v Kirklees Metropolitan Borough Council  1 All E.R. 564; Griffiths v Liverpool Corporation  1 Q.B. 374; Burnside v Emerson  1 W.L.R. 1490; Cowley v Newmarket Local Board  A.C. 345; Saunders v Holborn District Board of Works  1 Q.B. 64; Reg v Heath (1865) 6 B.&S. 578; Reg v Inhabitants of Greehow (1876) 1 Q.B.D. 703; Guardians of the Poor of the Union of Amerbury v Justices of the Peace of the County of Wiltshire (1883) 10 Q.B.D. 480; Dublin United Tramways Co. Ltd. v Fitzgerald  A.C. 99; Acton District Council v London United Tramways  1 K.B. 68; Attorney-General v Scott  2 K.B. 160; Latimer v A.E.C. Ltd.  A.C. 643; Grant Lothian Regional Council 1988 S.L.T. 533.
Highways Act 1980: s.41, s.56, s.58, s.150, s.329
Highways Act 1959: s.38, s.44, s.295, s.298
Highways Act 1835: s.26
Highways (Miscellaneous Provisions) Act 1961
Tramways Act 1870: s.28
Metropolis Management Act 1855: s.69, s.117, s.118
Metropolitan Paving Act 1817: s.63
Public Health (London) Act 1891: s.29, s.69
Roads (Scotland) Act 1984: s.1(1), s.34, s.151
Highways and Locomotives (Amendment) Act 1878: s.13
Factories Act 1937: s.25
all rights reserved