The statutory duty of a highway authority to maintain a highway (which includes cycle paths and pavements) under section 41 of the Highways Act 1980 is restricted to the ‘fabric’ of the highway. This was made clear by the House of Lords in 2000 in the case of Goodes v East Sussex County Council.

Mr Goodes was driving his car on the A267 near Mayfield in Sussex when, as he moved out to overtake on a straight stretch of road, he skidded on a patch of black ice. He lost control and crashed, sustaining serious injuries. It was not alleged that there was anything wrong with the road surface but it was argued that the Council was in breach of its statutory duty under Section 41 to ‘maintain the highway’. The Council denied that it had a statutory duty to keep the roads free of ice but said it did make considerable efforts to do so.

It was argued on behalf of Mr Goodes that maintenance was a wider concept than merely repairing the fabric of the highway and was capable as a matter of ordinary language of including salting and gritting. Lord Hoffman disagreed. He held that the duty to maintain was to the fabric of the highway and that this duty did not extend to the removal of snow or ice. If this duty were to be extended, it should be extended by Parliament. This then led to an amendment to section 41 in October 2003: ‘…a highway 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.’

Note that the amendment only related to snow and ice.

The Goodes case was considered more recently by the Court of Appeal in Valentine v (1) Transport for London (2) Hounslow LBC. The Court of Appeal, applying Goodes, decided a highway authority was not obliged to remove loose surface debris (but a local authority might be). The highway authority’s failure to remove material such as loose grit was not a breach of its statutory duty under section 41 of the Highways Act 1980.

The duty to maintain the ‘fabric of the highway’ is only to maintain the actual tarmac or paving blocks that make it up, not anything that has accumulated or grown on top of it. So a highway authority cannot be held to be in breach of its statutory duty under section 41 for failing to clear paths of moss or leaves.

Paul Kitson

From Slater and Gordon Lawyers