The “voice”
of
independent accommodation providers

The Law is a fascinating subject from a study angle, because of the way our ever changing society is reflected in our constantly evolving legal framework. Law is also something that tends to concentrate the minds of every one of us from time to time because it touches every aspect of our lives and controls our behaviour and to some extent conditions our thoughts.

Whilst I would not go so far as to say that the prevailing Law is always right purely because it is the Law, I would venture to suggest that compliance is always right, even where the Law is flawed, because certainty in our Law matters, we do need to know where we stand. Do we always have certainty and would we know if we were unwittingly breaking the law? Mistake of fact might provide  us with a defence, but mistake of the law, usually does not.

I would like, with your help to look at some cases that are of interest to us for a variety of reasons and to explore whether in a “there but for fortune” scenario, we might find ourselves in difficulty or at the very least somewhat confused.  I am not proposing to provide answers to specific legal issues, there are plenty of people better able to do that than me, and I hope that some of them will become regular readers of and contributors to this feature.  What I do want to do is highlight areas where an apparently small detail might substantially alter a legal position, and hopefully encourage readers to think about issues from all angles.

I hope that through this column we can share experiences, thoughts and knowledge and that we will challenge ourselves to think about both sides of every legal argument and see if we can identify how and why legal rulings are made in the way that they are, and how they might affect similar issues that might subsequently arise.

If you think that Law is a boring subject, I hope I can change your mind, at least please let me try.  If you find the Law as interesting as I do, I’m sure we can have some fun.

To set the ball rolling, who feels that Local Authorities have a legal duty to grit the roads and pavements?  Or are they justified in setting aside this practice when the weather is such that gritting the roads and pavements is more necessary, as in recent weeks?  The Highways Act 1980 deals with this issue, but is it clear how it will be applied in every situation?

Imagine you skidded on an ungritted ‘A’ road near your home, which caused you injury and prevented you from working for a month or two, thereby resulting in personal injury and financial loss would you consider seeking damages from your local Highways Department?  If you are insured against these losses and settle for making an insurance claim, do you think you will lose your no claims bonus, or will your insurers recover their outlay from the Council so that your no claims bonus remains intact?   Or is it either wrong in principle or wrong in law (or both) to expect our Administrative System to bear the cost of rare occurrences?

You might also like to compare the scenario of icy roads with roads and pavements full of pot holes, left in the wake of bad weather.  Do the same principles apply?

There is a duty under Section 58 of the Highways Act 1980 on Highways Authorities to regularly check the highways for defects and they 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.  The Road Traffic Act also places duties on Highways Authorities for road safety, in particular, the Authority must:

carry out studies into accidents arising out of the use of vehicles on roads or parts of roads, other than trunk roads, within their area,

and, in the light of those studies, take such measures as appear to them to be appropriate to prevent such accidents.

However the Road Traffic Act also places a duty on the motorist to proceed with care according to the prevailing conditions.

In the event of an accident is a motorist likely to succeed in an action against the Highways Authority for not gritting or not repairing potholes?

The House of Lords judgement in Gorringe v Calderdale Borough Council 2004 looked at this issue and it was Held that the overriding duty to drive on public highways in a safe manner and at a safe speed rests with motorists who are themselves responsible for their own safety.  Highways Authorities do have a duty to maintain highways, but this is confined to a duty to repair and keep in repair.  A Highways Authority is able therefore in most cases to defeat claims by relying on a record of having carried out regular highway inspections and highway repair work.

If a Highways Authority has failed to carry out regular inspections of the highway, or failed to act where inspections revealed problems, it may be held liable.

In the 1973 case of Rider, where the Highways Authority had done nothing to make a road suitable for an increased volume and weight of traffic that they had created through road management, the Court decided that the Highways Authority had failed in their duty to make the road safe for all users.

In the case of Goodes -v- East Sussex County Council in 2000, the House of Lords decided that the Highways Authority is not required to remove ice or snow from the road, as it does not mean the highway is out of repair.

It follows therefore, that in the case of ice and snow and ungritted roads alone, it will be difficult to succeed in a claim following an accident on the highway, unless there are additional circumstances present that the Highways Authority knew of and failed to act upon.

In other circumstances, for example where potholes have created a hazard, in order to succeed in a claim, it would be necessary to establish that either the highway had not been inspected in accordance with routine procedure, or if it had, and repairs were seen to be needed, that the identified problems had not been followed up within a reasonable timescale.

The real question here though, is whether it is in the interest of taxpayers to sue the Highways Authority, or should Road Traffic Insurers always pick up the bill?

If it is the former, all ratepayers pay, and if it is the latter, all (insured) motorists pay.

Here is an alternative suggestion.  Perhaps the Chancellor should set aside a budget for injuries and other losses caused, due to road and pavement defects, out of which all such claims could be met.  The only fact to prove would be that the injured person was hurt as a result of an obstacle or other unsafe condition present on our highway or pavement.  It would not matter whether the obstacle or unsafe condition was very recent, or how it arose.  This would seem fair to me as it would mean that the cost of improved road and pavement repairs across the country would be given a higher priority, and if an accident occurred before the problem was fixed, the unfortunate victim would not be faced with the prospect of litigation fraught with difficulty.

The same policy could be applied to the NHS and other administrative offices where harm is caused to the general public through various levels of neglect which are often caused by a shortage of funds, currently aggravated by our present system of litigation which is unnecessarily expensive.

We would all collectively make a contribution through income tax to a scheme that would ultimately mean that tax payers would not be funding unnecessary legal fees, leaving more money in the kitty to spend on improvements.

A smaller added benefit would be that those injured at the hands of the State and unable to work, would not then have to continue to fight the State for state benefits that fair State funded compensation would cover.

I think (hope) that many self respecting personal injury lawyers would agree with me that taking action against the State is not really in the public interest, (a) because it costs us all money and (b) because we should not be fighting the State that we believe taxes us to support us.  I have handled enough personal injury cases in my time to lead me to this conclusion.

There would of course still be an important role for the legal profession to play in agreeing quantum (the appropriate value of the compensation) but the blame culture would be removed and money movement between government departments reduced.

Is this a good idea?  Are there any Members of Parliament reading this who would like to think about this suggestion, and in particular are there any Lawyers who would like to comment?

Thank you very much for the first comment on my thoughts above, (see the link to comments below) “that you can’t have the public running round with shovels to clear the pavements”.   I am inclined to agree, but as a matter of interest, in many parts of the USA, (the States of Illinios and Indiana to name a couple), it is an offence not to clear the snow outside your home, so the postman and anyone else who needs to reach your door is not likely to suffer injury either on your land or on the public pavement  directly adjacent to your boundary.

Does anyone else have any strong thoughts on this?

Carol