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The last two winters saw extremely difficult conditions for road users, with prolonged periods of sub-zero temperatures, and snow and ice covering most of the British Isles. Many road users were unprepared for winter driving then but, as the first snow has begun to fall across the country, will this year be any different?

Drivers will be given the usual seasonal advice to take extra care and slow down. Avoiding travel altogether is probably the most prudent advice in the worst conditions, but for many people this isn’t an option. If you are unfortunate enough to have been involved in a winter collision, you may wonder how big a role the snow and ice might play in your legal claim.

Snow and ice are no excuse
The general rule is that, while snow and ice can be a factor, it will not necessarily be an ‘excuse’ for negligent driving. A useful authority on the subject is Custins v Nottingham Corporation [1970]. In this case, a bus driver skidded on ice, injuring a person who was waiting at the bus stop. The driver was aware of the snow and treacherous conditions and so slowed down and very carefully brought the bus to a stop. But while the bus was stationary, the camber of the road caused the bus to slide sideways and collide with the person at the bus stop. The bus driver was not deemed negligent. Despite losing control of the vehicle, the driver was held to have taken all reasonable care in the circumstances and was able to excuse his liability because of ice on the roads.

However, in most situations involving ice, it is difficult for drivers to avoid some blame if they lose control of their vehicles. Vehicles such as gritting lorries or emergency services vehicles may have a greater chance of avoiding blame, but it remains important that drivers do all that can reasonably be expected of them in these conditions – and sometimes that might mean not venturing out at all.

Highway Authorities and winter driving
Section 41 of the Highways Act 1980 imposes a duty on the highway authority to maintain the roads. It states that the authority is: “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 was amended in 2003. Prior to this, the case of Goodes v East Sussex County Council [2000] held that Section 41 did not place a duty on the highway authorities to clear the roads of snow and ice. While the amendment might now allow claims against highway authorities, there remain two important factors the court will consider:

A. Contributory negligence
Driving in snow requires extreme caution. Anything less could amount to contributory negligence and, depending on the facts of the case, the courts may reduce damages either partially or entirely.

B. Section 58 Defences
Section 58 of the Highways Act 1980 says that, as long as a highway authority can show that they took the steps that were required to keep the highway in good repair, this will be a defence in a claim. The authority must adopt a reasonable system of inspection and maintenance. There is no prescribed system but the courts will take into account various factors, including the character of the road, its general use and warnings about the danger.

An interesting problem arose last winter, when many highway authorities reported that supplies of gritting salt had run out because they had not anticipated freezing temperatures for such a prolonged period. This year, however, it is expected that authorities will look to ensure adequate supplies, as failure to do so could bring their system of inspection and maintenance into question.

There has been little case law authority since the 2003 amendment to the Highways Act, but in Pace v Swansea City and County Council [2007] the claimant, who lost control of her car, blamed the local authority for being in breach of duty under section 41A. The local authority successfully defended the case on the basis that the road had been salted earlier, and that it had a reasonable and proper system in place.

In this case, the court found that it was not possible for the highway authority to eliminate all risk of ice forming on the roads and that they had devised a plan in accordance with best practice, using sufficient quantities of salt to address the foreseeable risks.

If you have been injured in an accident and would like advice on making a claim, please contact our Personal Injury and Accident Claims team on 0117 904 6000 or emailing [email protected]