Highway authority — Duty of care — Whether common law duty to remove or to prevent formation of ice on roads — Highways Act 1980 — Claim dismissed
The claimants were the joint administrators of the estate of the deceased, who was killed in a road accident after he lost control of his car on an icy trunk road. The ice resulted from a hoar frost that had formed since the previous evening, and the road had not been salted on the day of the accident or at any time in the preceding two days. The defendant, as highway authority, had a power under section 62(2) of the Highways Act 1980 to carry out work for the improvement of the highway.
The claimants brought proceedings for damages against the defendant. After these had begun, 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 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 claimants had had to contend for the existence of a common law duty of care on the part of a highway authority to take steps to remove ice or to prevent it from forming on roads for which it was responsible. They argued, inter alia, that the defendant should have taken preventive measures.
Held: The claim was dismissed.
The defendant had been under no common law duty to prevent ice from forming from hoar frost or to remove frost from the road. Although it was obvious that frost gave rise to a foreseeable risk of danger and physical injury to road users, the risk was apparent for all to see and anticipate. Just as a motorist could choose whether to drive at night, in fog or in wet and windy conditions, when there would be a greater risk of injury, so he could choose not to drive when it was frosty or when frost was likely. It was not enough to identify a foreseeable risk of harm to road users and the existence of a power under the 1980 Act to do something that would alleviate the danger. The 1980 Act contained no discernable policy determining that the transient hazards of nature from fog, ice or wind were to be provided against by highway authorities. Instead, these were matters that fell within the discretion of the authorities.
John Ross QC and Sarah Paneth (instructed by Hawkins Russell Jones, of Hitchin) appeared for the claimants; Nigel Wilkinson QC and William Hoskins (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
