Sandhar & Anor v Department of Transport, Environment & Regions

A highway authority’s statutory power to salt roads, together with a maintenance scheme and general public expectation, does not by itself create a private-law duty of care for failing to prevent ice. For pre-31 October 2003 accidents, section 41(1) of the Highways Act 1980 imposed no statutory duty to prevent or remove ice or snow. Statutory powers may form part of the factual background, but cannot parasitically reinforce a common-law duty. That duty must arise from ordinary negligence principles, including reliance and, ordinarily, a particular assumption of responsibility or relationship. A duty may arise where positive conduct creates a danger or trap for a careful motorist relying on a reasonable expectation about the highway. No such circumstances existed here.

The appellants claimed damages from the respondent following the death of Mr Sandhar when his car skidded on untreated hoar frost on a trunk road. The Secretary of State had delegated trunk-road maintenance functions to Bedfordshire County Council, whose winter maintenance arrangements included salting and gritting procedures.

Newman J dismissed the claim, holding that the respondent owed no relevant duty of care, and alternatively found the deceased one third contributorily negligent: [2004] EWHC 28 (QB). The appeal concerned whether the statutory arrangements, the maintenance scheme and the public expectation of salting created a statutory or common-law duty to prevent the accident. The court also considered the contingent finding on contributory negligence.

1. Appeal dismissed. May LJ delivered the principal judgment, with which Thomas LJ agreed. Brooke LJ agreed and added observations on contributory negligence and the resulting hardship. The facts would have supported breach if a relevant duty existed, so the central issue was duty of care.
2. For accidents before 31 October 2003, section 41(1) of the Highways Act 1980 did not impose a duty to prevent the formation of ice or remove snow. The later statutory amendment was unavailable to the claim. Goodes v East Sussex County Council was binding on that statutory issue: [2000] 1 WLR 1356; [2004] UKHL 15.
3. The statutory power to improve a highway under section 62(2) could encompass salting for present purposes, but the exercise of a statutory power alone did not create a common-law duty. Statutory powers and duties could form factual background, but could not reinforce a duty parasitically. The existence of compensation provisions elsewhere in the Act did not assist motorists.
4. The common-law question had to be determined by ordinary negligence principles. Reliance was an intrinsically necessary ingredient of a duty of care, and assumption of responsibility was a useful guide. A particular relationship or positive conduct creating a danger could generate a duty despite the statutory context.
5. The respondent had not assumed general responsibility to motorists. There was no evidence that the deceased knew the detailed arrangements or relied on an expectation that the road had been salted. The published advice warned drivers not to assume that normally treated roads had been salted. The absence of salting therefore did not create a trap.
6. Brooke LJ considered the alternative finding of 33 per cent contributory negligence wholly unmeritorious to challenge. Driving at 45 mph in known frosty conditions on an untreated road was unsafe, and the later statutory duty did not reduce the driver’s primary responsibility for safety. A standard costs order was made, subject to detailed assessment and enforcement only with further order.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the dismissal of the claim.
• Queen’s Bench Division Newman J dismissed the claim, holding that the respondent owed no relevant duty of care, with an alternative finding of one-third contributory negligence: [2004] EWHC 28 (QB) .