Three recent road accidents in Herefordshire caused by mud on the road prompted the temporary closure of A-roads and an announcement from West Mercia Police that they would be monitoring excessive mud on public highways.
This has been a particularly bad year as the wet weather has meant that mud on public roads has been an unfortunate, but regular, by-product of farm operations. The NFU has released a recent briefing note for farmers on their legal liabilities relating to mud on the roads which we summarise below.
Farmers (and other vehicle operatives such as construction companies) are legally obliged to clear up after themselves and are potentially liable for a range of offences. While there is a range of powers available to the police and highways department, the primary powers fall under the Highways Act 1980:
Section 148 of the Highways Act 1980 makes it an offence to deposit mud etc. on the highway that would interrupt other users of the highway.
Section 149 of the Highways Act 1980 gives the highways authority the power to clean the road and recover its expenses from the person causing the obstruction.
Section 161 Highways Act 1980 "If a person, without lawful authority or excuse, deposits anything whatsoever on a highway in consequence of which a user of the highway is injured or endangered, that person is guilty of an offence". Contravention of sections 148 and 162 can lead to a Level 3 fine of £1000 in the magistrate's court. Furthermore, if mud on the road leads to personal injury, damage to property, or any loss or inconvenience, then the person responsible may be liable for damages. A conviction in the criminal court may be relied on in a claim for damages.
What you should do
Be prepared to hire in equipment - check availability in advance.
Keep to your own farm roads and minor roads whenever possible.
Keep to low speeds - especially when travelling a short distance - to help retain mud on the vehicle.
Record your decisions in writing whether or not you deployed signs and/or cleaned the road.
What you must do
Do everything possible to prevent mud being deposited on the road. This includes cleaning mud from vehicles, as far as practicable, before they are taken onto the road.
If there is a danger of mud being accidentally deposited on roads, use 'Slippery Road' signs with a 'Mud on Road' subplate to alert other road users. Check with your local highways authority their requirements for warning signs at the side of the road.
Clean the road as necessary during the working day and always at the end of the working day.
Ensure that labour and equipment is available and is suitable for the soil and weather conditions present.
Where a contractor is used, ensure that prior agreement is reached on who is responsible for mud on-road issues (signage, cleaning, etc.) and ensure that adequate public liability insurance is in place.
The use of liquidated damages as a sole remedy for contractor delay is a well-established mechanism in the construction industry. It is designed to provide certainty for both employer and contractor in relation to the financial effects of the contractor’s culpable delay. The employer does not need to prove its loss caused by the contractor’s late completion, and the contractor knows the exact financial implications of its own actions, therefore giving both sides the certainty that they require in this scenario. Unfortunately, for a period of time recently, the Court of Appeal threw the liquidated damages mechanism into some considerable doubt in circumstances where the Contractor’s employment under the contract has been terminated.
A round up of recent employment news including the latest on furlough; mandatory vaccinations for care home workers; government consultation on flexible working; Right to Work checks; pregnancy loss policies; and case update.