Highway authority — Duty of care — Whether common law duty to remove or to prevent formation of ice on roads — Highways Act 1980 — Appeal dismissed
The appellants were the joint administrators of the estate of the deceased, who had been killed in a road accident after having lost control of his car on an icy trunk road. An overnight hoar frost had formed, and the road had not been salted on the day of the accident or at any time in the preceding two days. The respondent highway authority, had the power, under section 62(2) of the Highways Act 1980(the 1980 Act), to carry out remedial works on the highway.
The appellants claimed damages against the respondent. After these proceedings, a House of Lords decision established that the statutory duty of the highway authority to maintain the road, under section 41 of the 1980 Act, did not require the removal or the prevention of ice. The 1980 Act was subsequently amended to include a duty to ensure that safe passage along a highway was not endangered by snow or ice. In the meantime, however, the appellants had contended that the highway authority had a common law duty of care to take steps to remove ice or to prevent it from forming on roads for which it was responsible. They argued, unsuccessfully, that the respondent should have taken preventative measures: Sandhar and another v Department of Transport, Environment and the Regions [2004] EWHC 28 (QB); [2004] PLSCS 13. The appellants appealed. They sought to establish that the respondent owed the deceased a relevant duty of care.
Held: The appeal was dismissed.
The appellants had failed to establish the existence of a relevant duty of care. The respondent could not properly be expected to have assumed a general responsibility to all road users to ensure that all or any trunk roads would be salted in freezing conditions. It was the primary responsibility of motorists to take care for their own safety and that of their passengers and other road users. The existence of the delegation agreement, the Trunk Roads Maintenance Manual and the highway authority’s Winter Maintenance Programme did not predicate an assumption of responsibility by the respondent to motorists generally that the system for salting roads would be carried out without fail. There was no evidence that the details of the system that the respondent had put in place were known to the deceased or the motoring public in general: Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15; [2004] 1 WLR 1057; [2004] 2 All ER 326 applied.
Furthermore, the appellants were unable to establish the necessary element of reliance. There was no evidence that the deceased had in fact relied upon an expectation that the road had been salted. Such a finding would be entirely speculative. Motorists could not properly rely upon the highway authority having salted a potentially icy road, and that negated the existence of a duty of care. The fact that an amendment to section 41 of the 1980 Act added a new statutory duty did not alter the fact that drivers were first and foremost responsible for their own safety.
John Ross QC and Sarah Paneth (instructed by Hawkins Russell Jones, of Hitchin) appeared for the appellants; Nigel Wilkinson QC and William Hoskins (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
