Sheridan_v_Solihull

On 11th December 2007, at approximately 7.30 a.m., the Claimant was riding his motorbike along Eastcote Lane, Solihull, when he skidded due to the presence of ice on the surface of the road. Liability for the accident was disputed. The crux of the claimant’s case was that the ice had formed as a result of the prevailing weather conditions of air temperature of -3°C and standing water caused or contributed to by a blocked roadside drainage gulley. Quantum was agreed, subject to liability at £7,000. It was conceded that the defendant would not pursue arguments of contributory negligence given that there was no evidence of speed or alternative causative factors pointing to this – it was an unfortunate accident.

The Claimant could not prove that the accident was caused by standing water caused or contributed to by a blocked roadside drainage gulley.
There was no evidence of any or any excessive rainfall in this area for several days prior to the accident. The claimant and his independent witnesses were unable to say that there was any surface water standing on the road on the day before the accident, i.e. 10th December 2007.
The weather forecast produced by the local authority and dated 10th December 2007 confirmed it was going to be dry and sunny that afternoon and dry and clear that night with road surface temperatures below 0 leading to patchy ice and hoar frost.
The evidence of the Claimant and his witnesses was that some flooding would occur after heavy rain which took a couple of days to clear. This was consistent with the Defendant’s evidence that it was subsequently discovered that the drain was working albeit at a reduced capacity.
The Claimant had produced photographs taken on the 11th December 2007 (“within half an hour of the accident”). Although there were photographs of the gulley these confirmed that the gullies were not back-filled so that water could not drain away. There was some debris such as leaves and silt, but the defendant argued that this was a transient matter.
The defendant offered an alternative explanation for the formation of ice in this location which was provided by the senior drainage engineer of Solihull MBC. He confirmed that in the winter of 2008, he noticed that in dry weather conditions ice had formed caused by a trickle of water overflowing from the adjoining land onto the surface of the road. As cars drove through this, it was spread across the road by the traffic and would then freeze upon coming into contact with the road surface (the temperature of which was below freezing). This was not previously known about or foreseen by the Defendant.

The Defendant accepted the three stage test set out in Department of Transport v Mott MacDonald. (2006). In this case, however, the “defect” pleaded by the claimant was irrelevant and not causative of the accident. No serious challenge was made to the engineer’s explanation for the formation of ice on the road. The Defendant contended that the trickle of water from the adjoining land was a transient danger caused by the elements (and was not foreseeable) rather than as a result of any longer term failure to maintain the highway, namely the blocked drainage gulley.

The Defendant accepted with the benefit of hindsight, there was a partial blockage in the drainage pipe on the other side of the road which meant that the capacity of the pipe was reduced by 50%. This did not constitute a failure to maintain, other than exceptionally during periods of prolonged heavy rain and for the period of a couple of days thereafter, on the basis of the evidence of the Claimant’s witnesses. At the date of the Claimant’s accident, the drain/gulley was functioning properly in that it was able to cope with the conditions which prevailed around the time of the Claimant’s accident. Even if the Claimant established that the roadside drainage gulley should have been maintained at all times at its full capacity, this accident would still have occurred. There was no water left on the road following heavy rainfall which subsequently froze. There was no evidence to support this.

There was evidence to show that a trickle of water had run onto the surface of the road by reason of the icy conditions affecting the adjoining land. This was not something which had been previously experienced or anticipated. This water, which had been caused to spread across the road by passing traffic overnight on 10th/11th December 2007, was nothing to do with the alleged or any defective or blocked drainage gulley and arose independently.

If the Claimant established that there was standing water on the road caused by a blocked roadside drainage gulley, and that this caused the Claimant’s accident, the Defendant would still be able to rely upon a defence of reasonable practicability because the Court had heard evidence from the defendant indicating that it would not have been reasonably practicable to conclude that there was a permanent restriction in the drainage gulley underground prior to the Claimant’s accident.

The Defendant acted reasonably in assuming that any blockage was caused by mud, falling leaves and other detritus (as specifically pleaded at paragraph 3 of the Particulars of Claim) and that jetting would resolve the problem. Gullies were cleaned some months previously as part of a routine maintenance programme and, on 2nd and 4th December 2007, following further reports of flooding, the cleaners returned to the site. That jetting was carried out successfully and it would not have been known at that stage that there was a more permanent and intractable problem, concealed underground. This was only discovered following further investigations after the Claimant’s accident. The Defendant acted reasonably in not completely removing and replacing the pipe until after the accident. This resulted in significant costs being incurred which would not be warranted in circumstances where the Defendant considered that the problem could be prevented by jetting.

For the avoidance of doubt, even if the Claimant had put forward an alternative factual basis, namely that there was water trickling from the adjoining land as a result of an ice blockage, the Defendant would have been able to rely upon a Section 58 defence in that it had not been aware of any similar problem in the past and it was not reasonably practicable to have done anything about it in advance of this incident.

The Defendant submitted that the issue of salting of the road was irrelevant as the Claimant could not prove the factual basis alleged or causation. In any event, the Defendant did carry out salting of the road. The decision record sheets confirmed that the roads would be pre-salted at 1900 hours on 10th December 2007. This was appropriate given the forecast. This was not a “known wet area” which would have required another salt in the early hours of the following morning – a point that the Claimant pursued vigorously. There was no foreseeable risk of the salt being washed away in this location overnight on 10th/11th December 2007.

Even if the Claimant proved that further gritting ought to have taken place in the early hours of 11th December 2007, it was not accepted by the Defendant that this would have prevented ice forming by the time of the Claimant’s accident. On the defendant’s evidence, there would have been fresh unsalted water trickling across the road which would have had the effect of washing away any salt, particularly with the movement of traffic, in circumstances where the road surface temperature was below zero (until 9 a.m.). These were extremely unusual circumstances. There was an appropriate salting policy and it was carried out correctly in the light of the knowledge of the anticipated condition of the road at the time the decision was made to salt the road on 10th December 2007. There was no basis upon which the Defendant knew or ought to have known that pre-salting would not have remained effective until 9 a.m. the following morning. There was no evidence that this scenario had happened before this unfortunate accident.

The claim against the local authority was dismissed with an order for costs in favour of the defendant.

At first sight and on the facts set out above, it would be reasonable to assume that the claimant had good prospects of success following this unfortunate accident but, after careful review of the evidence and the proofing of the persons involved in dealing with the implementation of drainage and salting policies under the winter maintenance plan for this particular local authority, it was clear to me that the local authority took their highway and drainage responsibilities seriously. I was satisfied that there were very good prospects of arguing that a well written policy, implemented properly is capable of winning the day – hence the decision to defend.