Test case on risk-based approach to go to appeal

Highways Reporters

A legal test case for the new risk-based approach to highways management in winter service is set to go to appeal.

Richard Hayes, chief executive of the Institute of Highway Engineers (IHE), told the Transport Network the Brenda White v Nottinghamshire County Council was a useful test of the principles around the risk-based approach in winter service and the outcome would be of great interest to the sector.

The claimant was injured when she slipped as a result of ice on the pavement and alleged breach of section 41(1A) of the Highways Act 1980 on the basis that the footway had not been gritted.

The clause states that 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’.

The council defended the claim on the basis that it had complied with its Winter Service Operational Plan (WSOP).

The burden was on the council to establish that it had ensured "so far as reasonably practicable" that safe passage along the highway was not endangered by snow and ice. As the council’s policy was to not grit the footway in these weather conditions, the council had to prove that it was not reasonably practicable to do so, in effect justifying its WSOP.

The claim was dismissed by the County Court and the judge held that the WSOP had an appropriate method to it and it was rational. However, Weightmans LLP, which acted for the council in this case, says it has received a notice of appeal from the claimant.

Gary Wood, group manager of environment and highways at Nottinghamshire County Council, said, "Nottinghamshire County Council has strongly defended the legal claim relating to an incident which occurred in December 2012 involving a slip on a pavement.

"We welcomed the County Court judgement in April this year which dismissed the claim and supported the authority’s policies, actions and approach to gritting roads and pavements.

"The council understands that the claimant is intending to appeal against the judgement. We will continue to defend our position in court if and when an appeal is granted to the claimant to safeguard local taxpayers and the public purse."
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