Sandhar & Anor v Department of Transport, Environment & the Regions

A highway authority’s statutory power to improve a highway, including by salting roads, does not ordinarily create a private right to compensation or a common law duty of care to prevent transient hazards such as frost, ice, fog or wind. The statutory context is the starting point. A common law duty based on a statutory power requires, at least, circumstances in which it would have been irrational not to exercise the power and exceptional grounds showing that the statutory policy requires compensation. A detailed winter-maintenance scheme, operational shortcomings and foreseeable physical injury do not by themselves establish sufficient proximity or justify imposing such a duty.

The claimants sought damages following the death of a motorist who lost control on hoar frost on a trunk road. The defendant was responsible for the relevant highway functions, which had been delegated to Bedfordshire County Council. The claim alleged breach of the statutory highway-maintenance duty and negligence at common law.

Following Goodes v East Sussex CC [2000] 1 WLR 1356, the statutory case concerning prevention of ice formation was no longer available in its former form. The central issue was whether the defendant nevertheless owed a common law duty to take reasonable steps to prevent or remove frost and ice, having established a national winter-maintenance scheme and an ice-alert system.

Judgment for the defendant. The court rejected the alleged common law duty of care. The following conclusions were material:

1. Statutory context. The policy of the Highways Act 1980 was central. The power in section 62(2) authorised highway improvement works and was broad enough to include laying salt to prevent or remove ice. It did not, however, create a right to compensation.
2. Transient hazards. Frost was a hazard of nature, but section 102 was directed to protective works creating a continuing state of affairs, not action to remove a transient hazard already on the road. The statutory scheme did not disclose a general obligation to make roads safe from transient hazards such as frost, ice, fog or wind. The duty to maintain under section 41 remained relevant where ice resulted from defective drainage or another failure to maintain the highway, as illustrated by Burnside v Emerson [1968] 1 WLR 1490.
3. Effect of Goodes. Goodes was binding on the statutory section 41 issue, but the common law negligence question had not been argued or decided in that case. Its reasoning nevertheless materially informed the statutory analysis.
4. Common law duty. Applying the statutory-power principles in Stovin v Wise [1996] AC 923, the claimants could not show the required exceptional statutory policy favouring compensation. The danger was not created by the defendant, was transient and anticipated rather than a known obstruction, and was visible or foreseeable to road users. The existence of the TRMM and failures to implement it fully did not create sufficient proximity or convert a discretionary power into a duty.
5. Alternative finding. If a duty had existed, the deceased would have been one-third to blame for driving at 45–50 mph in known frosty conditions. The claim was dismissed and judgment entered for the defendant.