The law lords' recent decision that local authorities are not bound to keep roads free of ice highlights a growing tendency to protect councils from compensation claims. Mike Ward reports

In an increasingly litigious society, the law lords have given Britain's local authorities some protection from an avalanche of legal claims by the public. Many readers will be aware of last year's House of Lords ruling in Goodes vs East Sussex. This said that the duty of a highway authority (in this case a local council) to “maintain the highway” under Section 41(1) of the Highways Act 1980 did not include a duty to remove or prevent the formation of snow and ice. This was despite the fact that the plaintiff,

Geoffrey Goodes, was almost paralysed in the road accident he suffered on an icy East Sussex Road.

The case sets a precedent: damages will be irrecoverable in similar situations against an authority, much to the chagrin, and even distress, of motorists and pedestrians.

The Goodes ruling may have surprised those familiar with successive Court of Appeal decisions to the contrary. The leading case on the subject was Haydon vs Kent County Council, 22 years ago. Here, it was held by a majority of the court that the duty to keep a highway in good repair included keeping it free from hazards such as snow and ice.

Even as recently as 1997, Lord Justice Evans felt in Cross vs Kirklees Metropolitan Borough Council that “the duty to maintain the highway does include maintenance of this kind”. In the same case, Lord Justice Millet found that an authority could be liable if it “allows snow and ice to persist for sufficient time that the general condition of the way can properly be described as treacherous”.

Even in Goodes itself, the Court of Appeal held it was a council responsibility, with Lord Justice Morritt saying that clearing the roads of snow and ice “may be regarded as maintenance as such”. As a result, liability was determined solely on whether the authority acted with diligence and expediency.

But all this changed when the case reached the House of Lords. This time, the judiciary decided that Lord Denning's minority view in Haydon was preferable to the claimant-friendly decisions of recent times. And it is in Lord Denning's judgment that the reasoning behind Goodes can be found.

His lordship felt that to oblige authorities to remove snow and ice would be to give them an impossible task. “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,” he said.

In agreeing with Lord Denning, the House of Lords in Goodes was taking a stand for local authorities faced with increasing litigation from a compensation-mad public. The real issue was not the interpretation of the 1980 act, however reasonable that interpretation might have been. The real issue was the more pragmatic one of limited public finances.

And Goodes vs East Sussex was not a one-off, confined to the issue of roads, but the latest in a series protecting councils against claims relating to various services they provide.

The forerunner of this trend is surely Murphy vs Brentwood District Council in 1990, where the defendant authority negligently approved an inadequate raft foundation for a house, which resulted in cracks in the property. The House of Lords felt that damage to the house was not physical damage at all, but rather a purely economic loss falling to the householder. The foundation and the structure were apparently one and the same entity, and only resultant damage, such as injury to persons or chattels, would render the authority liable.

This rather quirky rationale can be better understood when you note that there were about 2,000 similar disputes around the UK at the time; if Mr Murphy had succeeded it would have severely dented local authority finances.

Disability services
Fast-forward to 1997, where we find issues of disability services in R vs Gloucestershire County Council, ex parte Barry. The question here was whether the local authority, in assessing the needs of a disabled person, could take into account its own inability to fund those needs.

The House of Lords thought that council funds were relevant. The absurd principle that follows is that if the local authority has no money for disability services, then none of its disabled ratepayers can have any needs. Still, the House of Lords was undeterred. A sympathetic Lord Lloyd, echoing Lord Denning in the Haydon case, said the council's position was “truly impossible”.

The Court of Appeal also protected councils twice last July. Firstly, in Winterhalder vs Leeds Council, the traditional measure of an inch as the tripping hazard for pedestrians was abandoned. Among other things, the court was not prepared to impose an overly onerous duty on the authority.

Two days later, the question arose in Adams vs Rhymney Valley District Council whether the local authority was liable for the design of a first-floor window lock that prevented three young children escaping from a blazing house. The children died.

Yet, once again, the council escaped liability. This was despite Lord Justice Sedley's comments, in his minority decision, that “nobody in the council ever considered whether a removable key created the risk that the window would not be able to be opened in an emergency”. (Had the council not been a defendant here and the matter solely conducted against a private builder, the court is unlikely to have been as sympathetic.)

Of course, the courts won't bail out local authorities every time. Last December, the Court of Appeal refused in Bybrook Garden Centre vs Kent County Council to grant Kent an exemption from the law of nuisance, when a culvert it had been warned about overflowed in heavy rain.

Similarly, where the human rights of a dyslexic child were raised in Phelps vs Hillingdon London Borough Council, the local authority lost the case.

However, it seems clear that the judiciary is taking steps to restrict the liabilities of local authorities in the face of an increasingly litigious public. This is particularly notable given that duties of care are being increased in the private sector. An insurer's duty to the dependants of its policyholder and an employer's strict liability for defective work equipment, established in Stark vs The Post Office last year, are just two examples.

  • Mike Ward ACII LLB (Hons) is managing adjuster with the Quest Gates partnership at Harrogate.