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Jack versus Wessex County Council

This was an appeal by the highway authority, Wessex County Council, from a decision dated 1 December 1997 of the Court of Appeal (Morritt and Hutchison L.JJ.; Aldous L.J. dissenting) allowing an appeal by the plaintiff, Geoffrey Jack, from a decision of Judge Hargrove Q.C. who, sitting as a High Court Judge of the Queen's Bench Division on 2 January 1996, dismissed the plaintiff's action claiming damages for personal injuries caused by the council's alleged breach of statutory duty. The Court of Appeal granted the highway authority's application for leave to appeal.

The facts are stated in the opinion of … Lord Hoffmann.

[Line numbers have been inserted by Nottingham Trent University for referencing purposes]

1 July 1999

Lord Hoffmann

My Lords,

At dawn on a frosty November morning in 1991 Mr. Geoffrey Jack was driving his Ford Capri on the A267 at Babblebrook Hill near Aprilfield in Wessex. 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 Babblebrook. He suffered dreadful injuries and is now almost entirely paralysed.

Mr. Jack claims damages against Wessex 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 [1] 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 Lordship's 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 […Aldous L.J]. agreed. But the majority …held that the council was in breach and allowed the appeal.

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 Babblebrook 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.

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. Jack, 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 [1977]:

"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 [counsel for Mr. Jack] 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 Stores (1930) Ltd. [1941] 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.

Snow v. Kent County Council [1977] Q.B. 441

My Lords, I have said that Mr. Ross's argument was attractive and in Snow v. Kent County Council [1977] it was accepted in principle by the majority… 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 [1998] and in the present case… 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.

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" [2] of a parish [3] 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 (5 & 6 Will. 4, c. 50) 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.

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 [1967]:

"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 [1968], 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.

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…

[Lord Hoffman then discussed a number of pre-1959 cases in which is was established that there was no duty to remove ice or snow]

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 [1968], 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"

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 [1905], 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 [1968], 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 Snow v. Kent County Council [1977] were aware of this difficulty and tried to meet it by reformulating the scope of the duty. Goff L.J. said, 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 [1967] 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 [1998], Sir Ralph Gibson said that he thought that in Snow v. Kent County Council 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 … 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 Snow v. Kent County Council [1977] …

"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.


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