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Sandhar v Department of Transport and Environment & The Regions, Court of Appeal, 5 November 2004

11 November 2004
The issues

Highways – Goodes v East Sussex County Council – Snow And Ice – Road Traffic – Bird v Pearce

The facts

This action was brought by the widow of the deceased driver who was killed on the A428 in Bedfordshire on the 22nd December 1996. He lost control on the icy surface of the road and collided with a tree.

Goodes -v- East Sussex CC was authority for the fact that a highway authority were not under a duty of care in respect of snow and ice on the highway. That case was subject to statutory overruling by the amendment to the Highways Act which commenced as from 1st November 2003, providing that a highway authority were 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 Claimant was one of a number of Claimants who found themselves in the situation of having their claims barred by the decision in Goodes. The Claimant therefore amended her pleadings to argue for a common law duty of care. This had not been argued in Goodes because the common law argument had been abandoned by the Claimants in that case. It was found as a fact that no salt run had been ordered by the relevant individual in Bedfordshire but that had he accessed the Icelert system to obtain information, he would have learned of conditions giving rise to the formation of hoar frost and would have ordered a salt run which would have included the A428 and in all probability would have prevented the accident from happening.

The claim was dismissed by the High Court Judge. The Claimant appealed to the Court of Appeal.

The decision

1.Goringe v Calderdale was authority for the proposition that where a Public Authority acting under statutory duty or power is alleged to be liable for personal or physical injury it is first necessary to determine whether the statute, properly construed, provides a relevant private law right of action.

2. The 1980 Highways Act does this in relation to the duty of highway authorities to maintain the highway. It does not otherwise in any relevant way. The duty to maintain the highway did not include a duty to prevent or remove ice or snow – prior to 31st October 2003. (Goodes v East Sussex).

3. Although statutory duties or powers which did not give rise to a private law right of action might be part of the relevant factual background, the existence of those duties or powers did not reinforce the existence of common law duty of care in the public authority. Thus unless a statute provides a private law right of action, or unless the statute excludes it, the existence of a common law duty of care depends on basic common law principals.

4. The high point of the Claimant’s case in this action relied upon the decision of Bird v Pearce which had been commented upon in Goringe.

It was plain that all members of the House of Lords in Goringe were doubtful as to whether Bird v Pearce was correctly decided on its facts. The limit of any principle for which it gives support was that if a highway authority conducted itself so as to create a reasonable expectation about the state of the highway, it would be under a duty to ensure that it did not thereby create a trap for the careful motorist who drove in reliance on such an expectation.

Bird v Pearce however did not assist the Appellant in this case.

The Respondent could not be taken to assume the general responsibility to all road users to ensure that all or any trunk roads would be safe in freezing conditions. It remained the primary responsibility of motorists to take care for their own safety. The existence of the highway authorities winter maintenance programme did not justify an assumption by the motorist that the system for salting roads would always be carried out without fail. Barratt v Enfield and Phelps v Hillingdon had indicated that an assumption of responsibility required a particular relationship with an individual if it was to create a duty of care. A general expectation could not alone support such an assumption of responsibility. In this case there was no evidence that the details of the winter maintenance system were known to the deceased or motoring public generally.

Moreover, the Appellant’s case did not show the necessary element of reliance. There was no evidence that the motorist had in fact relied on an expectation that the road had been salted.

In the absence of reliance and of positive action by the Respondent whereby the Respondent was to be taken as having assumed responsibility to the motorist, the Respondent could not be said to have created a trap.

Comments

Clearly a helpful decision for highway authorities and public authorities generally in the Court of Appeal’s reinforcement of the principals in Goringe – but frustrating in that it continues to dangle tantalisingly the possibility of liability under Bird v Pearce. See comments in main Judgment – but must then be interpreted via Phelps, Barrett and the County’s case ie direct and personal responsibility plus positive act – query latter.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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