Sandhar & Anor v Department of Transport, Environment & the Regions [2004] EWHC 28 (QB)

Case No 03/TLQ/0048[2004] EWHC 28 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 th January 2004
Before
THE HONOURABLE MR JUSTICE NEWMAN
Between
(1) JANE MARIANNE sandharClaimants(2) JOHN STUART MURRAYClaimantDEPARTMENT OF TRANSPORT, ENVIRONMENT & THE REGIONSDefendant
John Ross QC and Sarah Paneth (instructed by Hawkins Russell Jones) for ClaimantsNigel Wilkinson QC and William Hoskins (instructed by Treasury Solicitor) for DefendantHearing Hearing dates : 25 TH to 28 TH November and 1 st to 3 rd December 2003 (inclusive)
Judgment
[1]This action for damages arising out of a fatal accident which occurred on the morning of 22nd December 1996 is advanced in unusual circumstances. At the date of the accident and when proceedings were issued by the widow of the deceased (as the widow and as joint administratrix with the Second Claimant, the joint administrators of the estate of the deceased), it was believed that the Defendant, as the highway authority, was, pursuant to section 41 of the Highways Act 1980 ("the 1980 Act") under a statutory duty to maintain the road in question, which included removing ice and taking measures to prevent ice forming (see Haydon v. Kent CC [1978] QB 343 CAand Cross v. Kirklees Metropolitan Borough Council [1998] 1 All E.R. 564). The Defendant acknowledged the existence of a duty under section 41 but denied its breach, relying upon section 58 of the 1980 Act. The claim included a claim at common law in negligence, which was denied by the Defendant. But the Defendant did not contend that a duty at common law did not exist.[2]On 15th June 2000 the House of Lords in Goodes v. East Sussex CC [2000] 1 WLR 1356, overruled Haydon and Cross v. Kirklees. The claim was amended to include an elaborate basis for the existence of a duty of care at common law and the defence was appropriately amended to put the whole case in issue. An application for summary judgment by the Defendant failed. By the date of the commencement of the hearing in this Court the Highways Act 1980 had been amended to include a statutory duty in the following terms:- "(1A) In particular, a highway authority are under a duty to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice".[3]It follows that the Claimants, in company with others whose actions were not disposed of before the judgment in Goodes, are subject to legal consequences to which litigants, in similar circumstances, have not been subject since 1978 and which litigants in similar circumstances, from 1st November 2003 (the commencement date of the amendment), will avoid.[4]The Court has been informed that the proceedings in about five actions brought by claimants, similarly placed, have not been tried because this action has proceeded as a test case on whether a highway authority is under a duty of care at common law to take steps to remove ice or prevent ice forming on roads maintained by it.

THE FACTS OF THE ACCIDENT

[5]According to the police reports, at about 07.19 am on Sunday 22nd December 1996 the deceased was travelling east on the A428 trunk road in Bedfordshire, having travelled about 1.5 miles from his home in Turvey. At a point where he would have been negotiating a very slight right-hand bend he lost control on the icy surface of the road, left the road and collided with a tree. The impact was with the side of his vehicle, in the vicinity of the driver’s door and he sustained fatal injuries.[6]It has been agreed that the deceased was travelling at a speed of 45-50 mph, that he would have had to clear his car of frost before driving on the road, that the road had not been salted in the course of the 20th or 21st December, nor at any time on the 22nd December prior to the accident. The ice formed through a hoar frost which had prevailed since the previous evening. Two factors are particularly relevant to the formation of hoar frost; the amount of moisture in the air and the road surface temperature. Moisture is precipitated out of the atmosphere at the dew point temperature. Where the temperature of the road surface is below zero and the air temperature is at or below zero, at the dew point hoar frost will form. If the level of humidity in the air is low, namely in dry conditions, notwithstanding below zero temperatures the risk of hoar frost will be low. But moisture levels vary according to local conditions and a further relevant variant in the creation of micro climatic conditions is wind speed.[7]On the morning of 22nd December 1996 there were patches of ice on the road and at the point where the deceased lost control the formation of ice is likely to have been fostered by the presence of hedges, foliage and trees beside the road. At that point the road was sufficiently icy to make it difficult for police officers to walk without slipping.[8]The police log discloses that the accident was reported by an emergency call at 07.19. Police officers arrived by 07.42 and at 07.50 it was reported as a fatal accident. The highways department are likely to have been contacted in connection with this accident between 08.04 and 08.26. Documentary evidence concerning the movement of salting lorries indicates that the vehicle sent to salt the route, which included the A428, left the depot, after a fitter had been required to start the vehicle, at 08.30.[9]The deceased’s wife was informed of the accident at 08.35. Her husband had been taken from the scene to hospital. She gathered her three children together and left for the hospital, having to defrost her car. She came on the scene, stopped, noticed the very slippery conditions and along with the children was taken in a police car to the hospital leaving the scene at 09.03. As she travelled to Bedford the salting lorry travelled in the opposite direction. The scene of the accident is approximately 5 miles from Bedford.[10]Mr Dowding from the highways department was at the scene by 09.19. He made a report. He records the salting lorry being at the scene at about 09.30.

THE ARRANGEMENTS FOR DEALING WITH ICE IN BEDFORDSHIRE

[11]The Secretary of State delegated his functions, including those in respect of ice, in respect of the trunk roads and land in the County of Bedfordshire to the County Council ("the Council") according to the terms of an Agreement ("the Agreement") made on the 22nd April 1991. More precisely, exercising his powers of delegation under section 6(1) of the Highways Act 1980, he delegated "… to the Council in respect of the trunk roads and land described in Part 1 of Schedule 1 the functions with respect to the maintenance and improvement of or other dealing with those trunk roads and land described in Part 1 of Schedule 2 as from the 1st April 1990". Section 6(1) entitles the Secretary of State to delegate the performance of his functions but not his responsibility.[12]Part 1 of Schedule 2, headed "MAINTENANCE REPAIR AND IMPROVEMENT OF TRUNK ROADS", specifies the tasks to be performed including at paragraph 19:
"19. Snow clearing and salting necessary for the maintenance of the road in accordance with the ‘Statement of Service and Code of Practice for the Winter Maintenance of Motorways and Trunk Roads’ [At the relevant date the guidance document was the Trunk Roads Maintenance Manual, hereafter TRMM] and the safety of traffic thereon; also the maintenance and operation of carriageway heating"
. By clause 3 of the Agreement and Part 1 of Schedule 3 the Council were "… obliged to carry out the functions with proper care and skill within the prescribed financial limits and to the satisfaction of the Secretary of State".[13]The TRMM applies nationally to all local authorities acting under delegated powers in connection with trunk roads. A winter maintenance service, according to TRMM, is expressly aimed:
"… to provide a winter maintenance service which, as far as possible, allows the safe movement of traffic on motorways and all-purpose trunk roads (APTRs) in England, and keeps delays and accidents caused by adverse weather to a minimum. The Highways Agency’s Maintenance Agents (MAs) shall undertake the operational management of the winter maintenance service and shall aim for a two hour treatment time for all trunk roads."
The MAs are required to adopt the arrangements defined in Chapter 3.3 of the TRMM unless local variations are agreed. Bedfordshire County Council drew up a Winter Maintenance Programme (WMP) for that purpose.[14]Chapter 3.3 of TRMM is headed ‘Cover for Operational Purposes’ and specifies the following arrangements: "In England, weather is unpredictable and the occurrence of wintry conditions varies considerably through the season and from year to year. During the whole of the winter maintenance season, there shall be an experienced member of staff available at all times (which need not be at their place of work), whose purpose is to monitor road weather conditions and to react to those conditions. This member of staff shall have direct access to either actual road conditions, or an ice prediction system, or updates and/or warnings from the road weather forecasting organisation and shall have the authority to call out personnel for winter maintenance operations as necessary. Special attention may be required for parts of the network that contain elevated sections, bridges, known areas of frost drainage, and/or where the local topography channels windborne cold air. It is important for the business community, and the travelling public, to be able to rely on a consistent level of service across winter maintenance boundaries. Neighbouring MAs shall liaise closely on their winter maintenance activities to ensure a reasonable continuity of treatment. They shall ensure that, where responsibility passes from one to another, no sections of main carriageways or junctions, slip roads or service roads are left untreated. MAs shall make arrangements to advise their neighbours of their decision to treat trunk roads (and to update at whatever time), to ensure that similar treatments are applied across boundaries for similar weather conditions. The Highways Agency acknowledges that MAs make their own decisions on treatments to be applied and therefore it is not advocating identical treatment. Liaison can however offer the opportunity for decisions to be assessed in the knowledge of the treatments that are being applied to adjacent roads".[15]Chapter 3.3.3 headed ‘Response and Treatment Times’ is as follows: "Treatment routes and shift arrangements shall be organised to achieve defined standards of response and treatment times. Response Time is defined as the time taken from the decision to begin treatment until the winter maintenance vehicles are loaded, manned and ready to leave the compound. Treatment Time is defined as the time taken from leaving the compound, in order to begin the treatment of the trunk roads for which the MA is responsible, through to completion of the treatment. To be most effective, a precautionary treatment should be undertaken before ice forms or snow settles on the road. The precautionary treatment of all trunk roads shall be undertaken within a maximum response time of 1 hour and a maximum treatment time of 2 hours. In exceptional circumstances an extension of treatment time may be justified in order to achieve more efficient methods of treatment. Such arrangements will require the approval of the WMRM (see 3.4.6). Temporary relaxation of the defined standards can only be accepted in very exceptional cases, with the prior agreement of the WMRM. MAs shall review manning arrangements annually, taking advantage of improved weather forecasting and ice prediction systems to reduce or eliminate continuous duty shifts wherever possible whilst maintaining the ability to meet the required response time. Continuous duty shifts shall not be operated as a matter of routine unless approved by the RO".[16]Precautionary treatment is detailed in 3.4.2: "To be most effective, salt should be spread before ice forms or snow settles on the road. Anticipating these conditions, and reacting correctly, depends on a mixture of local knowledge and experience, good weather forecasts, and an awareness of the current condition of the road (ie is it wet or dry; is previous treatment sufficient?) It is recommended that MAs make full use of specialised road weather forecasting services. The success or otherwise of the operation depends greatly on the good judgment of those whose decide whether or not to treat. Good weather forecasts are essential, but local geographical idiosyncrasies or other factors may have to be considered in reaching a decision. It does however take time to acquire this kind of local knowledge, and therefore a high turnover of staff is not recommended. A good rapport with the FO is essential if forecasts are to be used to best effect. Various services are now available which provide winter maintenance personnel with the kind of forecasts that help to make their job easier. Chapter 3.11 deals with the type of services available. A decision to treat will depend upon many factors but if road surface temperatures are predicted to fall below plus 1°C a precautionary treatment should normally take place unless:(a) no moisture is on or is expected to be on the road; or(b) there is sufficient residual salt on the road to deal with the expected conditions. Road inspections should confirm residual treatment levels and other information about the road surface condition. Elevated sections of roads, including bridges, and sections lying in low ground or where the topography channels windborne cold air, are more prone to freezing and may need special attention. Spread Rates for a precautionary treatment should be 10 g/m² for salt stored in a barn and up to 20 g/m² for salt stored in the open (to allow for increased moisture content) except in the following circumstances: (a) If freezing conditions are expected after rain, salt should be spread at 20-40 g/m² according to the amount of moisture present and temperature expected. Unless freezing conditions coincide with rainfall, treatment should be delayed as long as possible to reduce loss of salt by run off. (b) If continuous snow is forecast, salt should be spread at 20-40 g/m² according to the anticipated severity of the snowfall. It is essential that enough treatment is applied before the snow starts to stick to the road as the treatment will melt the initial snowfall and provide a wet surface beneath subsequent snow making the work of the snowploughs much easier.[17]In 1996 the Council’s WMP was drawn up by Martin Freeman, then Section Engineer and now Network Maintenance Policy Department Advisor. It followed, to a significant degree, the requirements of TRMM and reflected the Highways Agency policy statements. The Claimants’ pleading includes a number of "deficiencies" in the WMP as compared with TRMM but for present purposes it is unnecessary to list them. It is material to note that paragraph 1 of the Introduction explained the legal position as follows:1.1 Winter Maintenance is essential for public safety and also to the economy in maintaining the movement of traffic and pedestrians. Winter Maintenance involves treating the highway to: i) prevent ice from forming – precautionary salting ii) melt ice and snow already formed – post salting iii) remove snow1.2 Highway authorities are under a statutory duty to maintain highways. This general duty, as set out in the Highways Act 1980, embraces winter maintenance. In addition to the statutory duty, highway authorities may take preventative measures against the accumulation of snow and ice. It is important to recognise in the context of a highway authority’s statutory maintenance duty that: i) the highway authority is not obliged to take precautionary measures in anticipation of snow or ice; ii) the duty to clear ice and snow from maintainable highways is not absolute and the authority will be under no liability unless the breach of duty to maintain is blameworthy. In other words, so long as the decision as to whether or not to act has been taken on reasonable grounds, with due care and with regard to relevant considerations, the authority will not be liable. iii) it has been said judicially that when there is a transient danger due to the elements, be it snow or ice or heavy rain, the existence of danger for a short time is no evidence of a failure to maintain the highway.1.3 Highway authorities are, of course, permitted to take preventative measures against the accumulation of snow and ice over and above the minimum statutory requirements. The use of this power is relevant to an authority’s road safety responsibilities as well as its highway maintenance function.1.4 Bedfordshire County Council can demonstrate that it is meeting its legal obligations, and is doing so in a way which ensures that its resources are being deployed in the most economic, efficient, effective and environmentally friendly manner. This Winter Maintenance Plan provides the framework for that approach".[18]Appendix 2 of the WMP specified the maintenance group; for week 7, namely the 17th December 1996 to the 23rd December 1996, the duty engineer was John Chandler. Appendix 3 detailed the contractual arrangement made with the Meteorological Office: "WEATHER FORECASTING CONSULTANCY For the 1996-97 season, the Meteorological Office will be providing a forecasting consultancy service. The Met Office will be providing the following using the Icelert computer as a transmission medium: i) General 24 hour regional weather forecast for Bedfordshire by 11.00. ii) Detailed site specific forecast and ice prediction graph for the A507 at Ridgmont (Icelert outstation). iii) Routine ice prediction update in the form of ‘no significant change’ or a short text, to be received by 16.30 hours each day. iv) 2 to 5 day ahead forecast. v) 24 hour telephone consultancy service. Open Road Weather Forecasting Service: The Meteorological Office London Weather Centre 127 Clerkenwell Road London EC1R 5DB Tel 0171-696-0573 Fax 0171-404-4314 Open Road forecaster available on 0171-405-4355".[19]The Council adopted an Icelert system. It is a system of sensors allowing those with access to it to assess the accuracy of forecasts and the risk of ice forming. Site selection after thermal mapping, led to five stations in the county being established, including Ridgmont on the A507 (generally acknowledged as the coldest) and at Sharnbrook on the A6 which is most proximate to the scene of the accident. Mr Dowding accessed the Sharnbrook station at 10.02 on the morning of the accident and obtained a print-out of a surface temperature graph. It shows that the dew point dipped below zero and met the road surface temperature at about 19.00 on the evening of 21st December. At the time of the accident temperatures were still well below zero. Hoar frost would thus have been present at Sharnbrook from 19.00 on the evening of the 21st December.

THE DUTY ENGINEER: John Michael Chandler

[20]Martin Freeman was, at the material time, the direct line manager of Mr Chandler. Mr Freeman instructed him to set out in a report all information he had received and all steps taken by him to get information from the Met Office and hence the reasons for the decisions he made. Mr Chandler responded by email, in the following terms:- "Friday 20/12/96 Forecast gave a Red warning, with drizzly rain ending about 02.00 Sat morning and temps going down to 1/2C, so I organised a run at 01.00 Sat. However, at 20.00 hrs Fri an update gave no rain, so the run was cancelled. The lowest temperature reached Fri/Sat was +2.5 C. Oddly enough, Northants and Cambs must have been told it was going to stay dry, as they had planned to go salting at 20.00 hrs Fri night by 14.30 hrs Fri. Saturday Forecast gave min temps of –2C, although the script gave that the air would be dry enough for the only problems to be from seepage, and they gave an amber warning. (I have the quote as issued by the Met to follow). I did not do a salt run as the roads were dry. Approx 06.10 Sun morning the police informed of ice on the B530 and B660, so I sent CCS out to grit these roads. After a lot more reports, I asked for a full run at about 07.20 hrs Sun. Looking at the actual graph, the dew point increased +2C in half hour at about 04.00 after falling parallel at night. Sunday Predicted min –3C with a warning of possible icy patches. I requested a full run at 16.00 hrs Sun. Monday Despite 2 full runs the previous day, icy roads were still reported, and 2 roving gritters were sent out, including to a 3 car RTA on the C76 at Hulcote."[21]The 24 hour forecast for Bedfordshire from the Meteorological Office for midday to midday issued on 21st December 1996, to which the email refers, was as follows:
"TODAY. Dry with cloud thinning and breaking. Bright, then clear intervals developing. TONIGHT. Dry with clear spells. Breezy with relatively low humidity air, so all roads dry except where seepage is occurring. Icy patches will occur in areas of seepage, otherwise no problems expected. Lowest temperatures on hills"
. The entry for hoar frost was negative with a high confidence rating for the opinion.[22]Mr Chandler’s near contemporaneous report made no reference to:(1) any attempt to access the Icelert system;(2) any telephone call to the Meteorological Office;(3) any salt run or runs ordered for the B530 and B660 alone;(4) when and how he learned of Mr Sandhar’s accident..[23]Police records show that prior to the two accidents reported to Mr Chandler by the police at 06.10, at least five other accidents occurred due to the icy condition of roads in Bedfordshire. The first at 23.45 on 21st December and the fifth at 06.00 on 22nd December. After 06.10 another eleven occurred, including the fatal accident of Mr Sandhar. According to Mr Chandler, he received no police report prior to 06.10 and there is no evidence from the police to confirm or contradict this account. His email records that he received "a lot more reports" after the 06.10 report. His suggestion for a salt run at 07.20 coincides with the police record of the timing of Mr Sandhar’s accident at 07.19. It was the sixth accident after the 06.10 report.

Mr Chandler’s First Witness Statement dated 25th June 2002

[24]This statement was made following an order of Poole J., requiring him to state what information concerning weather and road conditions was in his possession on 21st/22nd December 1996. The email to Mr Freeman had by this date been disclosed. Mr Chandler referred to the following:(1) the terms of the forecast for ‘Tonight’ as set out by the Meteorological Office;(2) an updated forecast received at 16.00 hrs which indicated no change to the earlier forecast;(3) "I recall telephoning the Met Office at some stage during the evening of 21st December 1996 to ensure that the forecast remained valid. My normal practice is to telephone the forecaster at 12.00 hours if I wish to discuss the prediction, and also about 21.00 hours after the forecaster’s shift changes. This forecast was untypical in that temperatures were to fall below zero but no ice was forecast so I wanted to speak directly with a forecaster".(4) "I believe that I accessed the Icelert system on 21st December 1996 as I had the facility to access the system, but I would have relied in any event very much on the Met Office forecaster as I regarded the forecasters at the Met Office as being the experts in predicting future meteorological conditions".

Mr Chandler’s Second Witness Statement dated 31st March 2003

[25]He stated that being duty engineer required being on call at home for non-office hours in addition to normal 09.00–17.30 hours. A duty engineer received an extra £22 per night for the seven days. Being on call at home meant being available to receive telephone calls either by a mobile phone or land line. Weekend duty involved two hours’ overtime on Saturday and Sunday, for which payment was received. In addition to being equipped with a mobile phone, the duty engineer had a lap top computer to access Met Office forecasts, the master station or Icelert stations. A printer was not available. But, according to his statement, "… a duty engineer is not required to remain at home all night, and therefore would not always be able to access the outstation data. However access to such data was, in effect, guaranteed in any event through the direct communication with the Met Office".[26]He elaborated upon "direct communication" with the Met Office, in particular he referred to being able to talk to the forecaster direct and:
"If the weather report changes in a material way during the day or night then the Met Office would call the duty engineer …"
. He stated that he was not called on the night in question.[27]He gave a detailed account for Friday 20th December. In summary that he ordered a full salt run for 01.00 hours but, after talking finally to the Met Office at around 22.00 hours, he cancelled the run. He added: "The Met Office duty officer changes shift at 21.00 hours and this enables me to have a second Met Office opinion of the forecast and so I usually wait until an hour after the shift changes to enable the new forecaster to assess the full weather picture".[28]His account for Saturday 21st December included the following: "As with my checks on Friday’s forecasts, I would have spoken with the Met Office forecaster at the update time of 16.00 to revalidate the accuracy of the forecast, and also again as a "comfort call" before going to bed at approximately 22.00. On all occasions the Met Office confirmed the earlier forecasts and so I had then received at least three consecutive confirmations that there would be no ice problems except possibly where there was seepage".[29]His recollection of the Sunday morning was that after the calls about the accidents on the B530 and B660 at 06.10, he ordered a salt run for those roads. It was when he was told the A428 accident was a fatal one that he ordered a full salt run at 07.20.

Mr Chandler’s Oral Evidence

[30](1) Contrary to his First Witness Statement, in the witness box he accepted that he had not accessed Icelert, nor indeed did he regard it as a routine part of his responsibility to do so. He believed the Met Office was contractually obliged to access the system and that its advice took account of the local Icelert stations’ data.(2) He firmly recollected calling the Met Office in the evening of 21st December before going to bed. He was informed that "the air is just too dry to cause any ice".(3) He believed it was the responsibility of the Met Office to phone the duty engineer and report on any material change in the forecast, having taken account of up-to-date information from the Icelert stations. He considered the Met Office had failed to do what it was required to do by not informing him of the risk of hoar frost in Bedfordshire that night. He had relied upon the Met Office. They were the experts.(4) He did not access the Icelert stations or any one of them before telephoning the Met Office, either as a general rule or on the night of the 21st December.(5) He appeared to recollect that he ordered a full salt run after he learned of Mr Sandhar’s fatal accident and he continued to maintain he had ordered one if not two runs for the B roads at 06.10.

Conclusions on Mr Chandler’s Role

[31]Mr Chandler remains deeply affected by the events of 21st/22nd December. They have exacted an emotional toll, which is still visible many years afterwards. I regret that, as a result, his ability to give clear evidence has been impaired. I am unable to regard his oral evidence as reliable. His witness statements are unsatisfactory and appear to me to be flawed by the same impairment. His email is probably the most accurate account of the action he took.[32]His evidence that he made a phone call to the Met Office on the night of 21st December is not supported by:-(1) the content of his email to Mr Freeman;(2) by any other evidence. A Met Office log for the night in question designed to record non-routine calls had entries for the 20th but not the 21st. On the 20th the reason noted for the calls was the unavailability of a personal computer, not a request for confirmation or the raising of a query;(3) the Council’s contract with the Met Office which did not include a requirement that the Office access the Icelert system. Mr Chandler is likely to have known that to be the case. He knew he could telephone using the 24 hour consultancy service, which was part of the Council’s contract but he also knew he could access the Icelert system at any time by using his laptop. By using the consultancy service he could expect to learn of the latest position on forecasts based on the latest data available to the Met Office. But a call to the Met Office at "bed time" could provide limited "comfort" in connection with the local conditions which could have developed.(4) the probability that he would have received advice carrying the certainty: "the air is just too dry to cause any ice".[33]I find that:(1) Mr Chandler relied upon the Met Office forecasts issued on the 21st December and decided not to order a salt run in Bedfordshire. He took no other steps to obtain any information after the afternoon update from the Met Office at about 16.00 on 21st December.(2) He received calls from the police on 22nd December at 06.10 and thereafter, but I am not satisfied that he ordered a salt run on the B roads. The record from the depot does not evidence such an instruction. I have concluded that he ordered a salt run on the A428 (part of the salting route, numbered 11) when he heard of the fatal accident.(3) Had Mr Chandler accessed the Icelert system to obtain information from each of the five stations after 19.00 hours on 21st December, he would have learned of the conditions giving rise to the formation of hoar frost and he would have ordered a salt run which would have included the A428 and in all probability the accident would not have happened.(4) Had Mr Chandler ordered a salt run, to include the A428, at or about 06.10 hrs on 22nd December it is likely the lorry would have left approximately two hours earlier than it did. Had it travelled west on the A428, as it is likely to have done since that was the normal route, it would have salted the stretch of road before the deceased travelled on it and it is likely the accident would not have happened. THE LAW The Impact of the House of Lords’ Judgment in Goodes?

THE LAW

[34]Mr Ross submitted that the case of Goodes is of limited relevance, because it only considered whether, under section 41 of the Highways Act 1980, there was a duty to take measures to prevent ice forming on roads. I am unable to accept the submission that it is of limited relevance.[35]Lord Hoffman, who gave the leading speech, referred to the common law duty of care which had been pleaded in the case:
"The statement of claim also contained an allegation that the council had been guilty of common law negligence. But this was not pressed at the trial and has disappeared from the case" [1358 H]. Lord Slynn observed: 36. "
The issue before Your Lordships has, however, been whether the duty to ‘maintain’ includes a duty to keep the road safe by preventing ice from forming. It has not been contended that there is a liability at common law in negligence" [1358 A]. Lord Clyde observed: 37. "It might be thought that there should be a liability upon a highway authority in England and Wales for damages in the event of injury occurring through a failure to take sufficient measures to preserve the safety of the highways under conditions of ice and snow. But there is no remedy there available at common law and if the statute is construed in the way I have preferred there is no remedy under the statute" [1370 H].[36]The judgment in Goodes is binding authority only for the question which their Lordships decided under section 41 of the 1980 Act and I accept that the question whether a common law duty in negligence existed was not before them to decide, but I am unable to accept, having regard to the reasoning contained in the speeches, that the case is of limited relevance to what I have to decide.[37]Mr Ross’s argument involved the following steps:(1) The Defendant’s statutory powers and functions in connection with the maintenance and improvement of trunk roads have been exercised so as to lay down, on a national basis, a comprehensive and detailed scheme for preventing accidents due to the presence of ice and snow on roads (see the TRMM and the Agreement with Bedfordshire).(2) The Defendant having exercised its discretion so as to establish the programme, the case for the Claimants simply involved an allegation of an operational failure to act and the question whether a duty of care in negligence exists falls to be answered by applying the tripartite test set out in Caparo v. Dickman [1990] 2 AC 605.(3) It is plainly foreseeable that if salting does not take place, ice can form and accidents and injury to road users will occur.(4) The deceased was one class of people whom the policy of salting roads was designed to protect.(5) It having been assumed since Haydon that a duty existed to prevent ice forming, without amendment to the law to abridge it, where compensation has been paid for breach of the duty and where Parliament has now amended section 41 so as to provide for a duty, Mr Ross submitted it could not be concluded that it would be unreasonable for the duty to be imposed.(6) It follows that the tripartite test set out in Caparo v. Dickman is met.[38]The argument requires some detailed examination.[39]In determining whether a public authority owes a duty of care at common law when exercising statutory functions, the starting point is the statutory context:
"Whether a statutory duty gives rise to a private cause of action is a question of construction: see R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. Whether it can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision. As Lord Browne-Wilkinson said in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739C in relation to the duty of care owed by a public authority performing statutory functions: "the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done"
. The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory "may" can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer’s statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as "general reliance") in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare. In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised". Stovin v. Wise [1996] AC 923. 952e – 953e per Lord Hoffman.[40]I agree that in Stovin the House of Lords was considering a case where a discretionary power had not been exercised, namely the power to serve a notice requiring the removal of the obstruction which had allegedly created the danger or hazard. If, contrary to a body of prevailing jurisprudence, the distinction between policy and operations is to be regarded as critical, the material facts in the instant case could be regarded as operational.[41]It is common ground that when he was drawing up and administering the winter maintenance scheme embodied in the TRMM and when he delegated his functions, it is likely the Minister had in mind what was then believed to be his duty under section 41 to prevent ice and snow on the roads. But it has not been suggested that, given he had no such duty, he had no power to provide for winter maintenance against ice and snow and no power to delegate under section 6 of the Act. The Claimants have put forward a number of sections of the Act as a possible source of power: section 62 (general powers of improvement), section 102 (protecting highways against hazards of nature), sections 272, 274 and 278 (expending money for highway purposes) and section 39 of the Road Traffic Act 1988.[42]I have concluded that, absent the duty under section 41, the Minister had the power to act under section 62(2) of the 1980 Act and for the purposes of this case should be regarded as having decided to carry out work for the improvement of highways by having a scheme for (among other things) the prevention of ice forming on the roads and its removal. Section 39 of the Road Traffic Act applies only to local authorities and for reasons which will become apparent, I have concluded that the other sections of the 1980 Act are not in point.[43]Section 62 is the first section within Part V of the 1980 Act, which is headed "Improvement of Highways" followed by the sub heading:
"General power of improvement"
. Section 41 is in Part IV of the 1980 Act headed:
"Maintenance of Highways"
. Section 62(2) confers a broad power to carry out any work for the improvement of the highway excluding work specifically listed in subsection (3). "S.62(2) Without prejudice to the powers of improvement specifically conferred on highway authorities by the following provisions of this Part of this Act, any such authority may, subject to subsection (3) below, carry out in relation to a highway maintainable at the public expense by them, any work (including the provision of equipment) for the improvement of the highway". Section 329 of the 1980 Act states : 46. "Improvement means the doing of any act under the powers conferred by Part V of this Act and includes the erection, maintenance, alteration and removal of traffic signs, and the freeing of a highway or road-ferry from tolls".[44]The limit on the otherwise general ambit and reach of the power to effect improvement in section 62(2) which is set by the reference to sub-section 3, must be seen as part of the statutory scheme, because the working out of the specific instances of improvement which are outside section 62(2) but within section 62(3), is carried through to other sections of the 1980 Act.[45]Two areas of improvement have relevance, by reason of their similarity of subject matter, to the prevention of ice on roads. Section 62(3) provides in connection with the two areas as follows: "Notwithstanding subsection (2) above, but without prejudice to any enactment not contained in this Part of this Act, work of any of the following descriptions shall be carried out only under the powers specifically conferred by the following provisions of this Part of the Act, and not under this section … (g) the execution of works for the purposes of draining a highway or of otherwise preventing surface water flowing on to it; (h) the provision of barriers or other works for the purpose of affording to a highway protection against hazards of nature".

Section 329 of the 1980 Act states :

[46]The power at (g) is provided for by section 100 of the 1980 Act which empowers a highway authority to carry out drainage works for the purpose of draining it or of otherwise preventing surface water from flowing on to it. If a highway authority fails to properly drain a highway it has been held liability does not arise because of a negligent failure to exercise the statutory power in section 100, but because "repair and maintenance … include providing an adequate system of drainage for the road" (see Burnside v. Emerson [1968] 1 WLR 1490, 1497) and liability arises out of the failure to maintain the highway (section 41). This tells against the argument that the exercise of powers under this Part of the Act can give rise to the payment of compensation, save where the Act provides. Section 100(3) does provide for compensation to be paid where damage is suffered by reason of the exercise of the powers but it is only payable to "the owner or occupier of any land who suffers damage".[47]Diplock LJ formulated the general nature of the duty to maintain as; ".. a duty not merely to keep a highway in such a state of repair as it is at any particular time, but to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition". The plaintiff succeeded in Burnside v. Emerson because it was not merely the presence of water on the road but because there was evidence that the stretch of road was not kept properly drained. The trial judge had found that there was a system but that it had not been properly operated because the drain was at the wrong point and was obstructed.[48]Lord Denning distinguished the state of affairs from an occasional flooding adding:
"So I would say that an icy patch in winter or an occasional flooding at any time is not in itself evidence of a failure to maintain"
. In my judgment, this distinction in connection with maintenance of the highway applies with equal force to affect the legal context in which the Defendant exercised powers of improvement.[49]The power to provide against hazards of nature (sub-paragraph (h)) can be found in section 102 of the Act:
"(1) The highway authority for a highway maintainable at the public expense may provide and maintain such barriers or other works as they consider necessary for the purpose of affording to the highway protection against snow, flood, landslide or other hazards of nature; and those works may be provided on the highway or land which, or rights over which, has or have been acquired by the highway authority in the exercise of highway land acquisition powers for that purpose. (2) The powers conferred … (3) A highway authority shall pay compensation to any person who suffers damage by reason of the execution by them under this section of any works on a highway"
. Mr Ross submitted that "other works " in section 102(1) could include the activity of salting the roads so as to protect against a hazard of nature, namely frost and ice. It is fair to say that the submission was not advanced with great enthusiasm for he recognised that the nature of the "other works" was not unqualified. In my judgment, it falls to be interpreted by reference to the type or class of works specifically referred to in the section, which involve measures of prevention creating a continuing state of affairs and are not concerned with action taken to remove a hazard which is already on the road.[50]It will be necessary to consider the character of the statutory power contained in section 62(2) in more detail in order to establish the statutory context, but before doing so it will be convenient to consider the impact which the case of Goodes should be regarded as having had on the statutory context presented by the 1980 Act.[51]The following can be distilled from the case of Goodes:(1) A proper understanding of the 1980 Act requires consideration to be given to the fact that the legislation is not "… a code which sprang fully formed from the legislative head but was built upon centuries of highway law". (1360 g-h).(2) A highway "maintainable at public expense" was, prior to the commencement of the Highways Act 1959, a highway maintainable by the inhabitants at large or maintainable by a highway authority. The common law position is derived from any duty which fell upon the inhabitants at large.(3) The common law imposed upon the inhabitants at large a duty to maintain highways irrespective of their resources, but it did not impose upon them the financial burden of paying compensation to anyone who suffered damage because of a failure to repair.(4) The removal of obstructions including transitory hazards such as ice and snow was not within the scope of the duty of the inhabitants at large to maintain highways.[52]In my judgment, it follows that if the state of the common law is judged only by reference to its development until 1959, namely the point at which it was examined in the House of Lords, then it follows from Goodes that, at that date, no common law duty to prevent the formation of ice on the road existed. Mr Wilkinson QC, for the Defendant, submits that being the position in 1959, the common law cannot have changed because it has been governed by statute and any possible development on an incremental, case by case basis has not occurred because it was believed (wrongly) a statutory duty existed. That, he submits, is an end to this claim. But the argument advanced on behalf of the Claimants, as I have understood it, starts with the Highways Act 1959 and the statutory regime contained in the 1980 Act. The duty at common law, it is said, arises out of the acts and circumstances created by the legislation and the exercise of power by the Defendant. Following the dictum of Lord Browne Wilkinson in X (Minors) v Bedfordshire County Council: "the question whether there is such a common law duty and, if so, its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done".[53]I am unable, therefore, to accept the submission that the point now being raised is to be regarded as having been decided by Goodes and I must examine it. That said, the shift in argument which Mr Ross has employed cannot escape certain consequences, which are to be derived from the speeches.(1) The statutory framework upon which the argument depends did not string "fully formed from the legislative head" and was built "upon centuries of highway law".(2) Since the 1959 Act consolidated the law, including the common law, the direction of its policy is likely to have been towards conformity with existing law.(3) The factors (see in particular Lord Denning’s dissent in Haydon) which have leaned against the existence of the duty as part of the duty to maintain, weigh forcibly against its existence in connection with a breach of a statutory power to improve.[54]In written submissions, delivered at the invitation of the Court after the close of argument, the Claimants defined the nature of the duty upon which they relied. Three possibilities have been put forward:- "(1) To take such steps as are reasonable in all the circumstances to protect the highway from hoar frost and ice [which are hazards of nature]; and/or (2) To take reasonable care that the exercise of or failure to exercise its powers to carry out works [under section 62 and/or section 102 of Highways Act 1980] does not create a foreseeable risk of harm to road users [from the hazards of nature (such as hoar frost or ice)]; and/or (3) There is a public law duty to exercise the statutory powers under section 62 and/or section 102 of Highways Act 1980 rationally/as a reasonable authority would exercise those powers and there is a private law duty of care to exercise those powers in such a manner as is reasonable in all the circumstances so as to avoid a foreseeable risk of harm to road users by the hazards of nature".

THE SHIFT IN ARGUMENT

[55]Highway authorities have salted roads to prevent ice forming for decades and they have continued to do so since the judgment in Goodes. They have no express power to do so but, in my judgment, can be taken to have been acting within the general power to improve the highways under section 62(2) of the Act.[56]Section 62 does not provide any definition of improvement and the definition in section 329(1) simply refers one back to the powers in Part V of the Act. But the section draws a distinction between the specific powers listed at (a)-(h) in section 62(3) and the general power in section 62(2) which in its material part is a power to "… carry out, in relation to a highway maintainable at the public expense … any work (including the provision of equipment) for the improvement of the highway".[57]The powers conferred by section 62(3)(a)-(h) contemplate work in the nature of construction or the provision of physical objects to improve the highway, including improvement designed to afford protection against water flowing on to the highway (g) and protection against hazards of nature (h). Each of the powers at (a)-(h) when exercised will serve, to some degree, to achieve greater safety for road users but it can be said that the powers at (g) and (h) have safety (as opposed to the efficient movement of traffic and ease of passage) as their principal aim.[58]For the salting of highways to prevent ice forming to fall within section 62(2), it has to be within the meaning of "any work". In my judgment, it is. And the effect of laying salt, namely the prevention or removal of ice by salting must also be an "improvement" to the highway. This might be regarded as more problematical because it involves no physical change to the highway and the state of affairs which salting creates is transient. But the sub-section being concerned with a general power it seems to me that the laying of salt being capable of falling within the normal meaning to be given to the words, "any work" should be regarded as within the sub-section. Further, although the effect of laying it is transient, it serves as a barrier to ice forming or as an agent for its dispersal in a manner which, whilst different in kind, is nevertheless consistent with the purposes and means contemplated by the measures to which the express powers in (a)–(h) extend. For example, the presence of water which can be prevented by proper drainage, if caused by rain, is transitory and will according to nature disperse, but the Act undoubtedly regards the prevention of water collecting on the highway as "improvement". THE STATUTORY CONTEXT OF THE POWER (1). Preventing obstructions, including ice and snow.[59]Ice forming due to a defective drainage system or other failure to maintain the surface of the highway (see, for example, Burnside v. Emerson [1968] 1 WLR 1490) can give rise to liability for breach of statutory duty. Liability for an accident caused by the latter remains within section 41 despite Goodes. I regard the continuing correctness of Burnside v. Emerson as important. Frost on the road is a hazard of nature, but the works contemplated by section 102 of the Act to protect against hazards of nature are not apt to apply to preventing frost forming. This interpretation is supported by the compensation provision (sub-section 3) which provides for compensation "… by reason of the execution… of any works on a highway". It is difficult to see how the laying of salt could have been contemplated to be within the section.[60]Section 150 imposes a duty on a highway authority to remove obstructions arising in a highway from an accumulation of snow or other causes. The remedy for a failure to remove an obstruction is by complaint in a magistrates’ court. Frost is not an obstruction within the meaning of the section (see Worcestershire County Council v. Newman [1974] 1 WLR 938). It is difficult to see a case for the statute treating frost and its prevention and removal so differently as to give rise to a liability to pay compensation. (2). Preventing danger by placing signs or by other action[61]It is not uncommon for highway authorities to place a sign beside a road where it is known icy conditions regularly arise in winter warning of, "ice" or the road being liable to ice. It will not prevent ice forming, but it serves to advise of the danger caused by ice which has formed. The power to erect signs is to be found in section 65 of the Road Traffic Regulation Act 1984 (see Lavis v. Kent County Council [1992] P1QR 351) not in the 1980 Act. In Lavis the Court of Appeal allowed an appeal against an order striking out the action observing that the working out of the law in the area of common law liability in connection with the exercise of statutory powers had not really been explored at an appellate level. The claimant had complained of the absence of "give way" signs near a junction. It being a strike out decision the judgments, whilst illuminating and helpful, do not advance the Claimants’ case.[62]Lighting a busy route improves safety. Highway authorities have general powers to provide road lighting systems under section 97. Compensation is payable to any person "… who sustains damage by reason of the execution of works under" the section. In my judgment, these provisions concerned with safety measures in connection with the highway do not provide a basis for the existence of a duty to prevent "foreseeable harm" from "hoar frost and ice".[63]Since Lavis the appellate courts have given frequent and detailed attention to the question whether the common law superimposes a duty of care upon a public authority in the exercise of its statutory powers (see X v. Bedfordshire County Council [1995] 2 AC 633 HL; Stovin v. Wise [1996] 923 HL; Barrett v. Enfield Borough Council [2001] AC 550 HL; Phelps v. London Borough of Hillingdon [2001] 2 AC 619; Larner v. Solihull MBC [2001] RTR 32; Gorringe v. Calderdale MBL [2002] RTR 446 LA;(1) JD,(2) MAK and RK,(3) RK and Anor and East Berkshire Community Health & Others [2003] EWCA Civ 1151).[64]Stovin v. Wise being a case concerned with the Highways Act 1980 is particularly in point, but I have considered each of them. In Stovin the House of Lords was required to consider the extent of the liabilities of a highway authority for failure to use discretionary powers to deal with a known danger to the highway. The danger was created by the presence of a bank on land owned by a third party adjoining the highway. The highway authority was aware of the danger and had taken the decision to issue a notice under section 79 of the 1980 Act requiring the third party to deal with the obstruction, but had not pursued the matter with expedition.[65]The judgment of the majority comprised in the speech of Lord Hoffman advances the Claimants’ case to some degree but in many other respects impedes it. As I have already observed, the majority treated the case as based upon a failure to exercise a statutory power and therefore the minimum conditions which were laid down for basing a duty of care upon the exercise of a statutory power reflected the basis of the case: "First that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised". (1). if the council had decided not to act it would not have acted irrationally; (2). it was not bound to act within a particular time frame; (3). it was not under a public duty to do the work;74. but (4) even if it had been the claimant could not show reliance, no benefit routinely provided to others had not been provided and the legislative intent to be discerned from section 79 and its statutory predecessors did not point to a conclusion that a duty of care should arise in respect of the power. Having referred to a number of wider issues, Lord Hoffman concluded:75. "… I do not think that the duty of care can be used as a deterrent against low standards in improving the road layout. Given the fact that the British road network largely antedates the highway authorities themselves, the court is not in a position to say what the appropriate standard of improvement would be. This must be a matter for the discretion of the authority. On the other hand, denial of liability does not leave the road user unprotected. Drivers of vehicles must take the highway network as they find it. Everyone knows there are hazardous bends, intersections and junctions. It is primarily the duty of drivers of vehicles to take care. And if, as in the case of Mrs Wise, they do not, there is compulsory insurance to provide compensation to victims".[66]Mr Ross, understandably, relied more heavily on the speech of Lord Nicholls who commenced his analysis by drawing attention to the highway authorities’ powers:(1) to maintain and improve highways;(2) to remove potential sources of danger;(3) the fact that the local authority in question "knew this was an exceedingly dangerous junction";(4) that for the claimant to succeed "the council must have owed him a duty of care to exercise its powers regarding a danger known to it but not created by it" and the question was ".. whether it was in breach of a common law duty by carelessly failing to remove this source of danger".[67]Lord Nicholls adopted the tripartite test in Caparo v. Dickman. He considered the statutory context created by the Highways Act 1980 and in particular the "… panoply of powers enabling them to deal with dangers, obstructions and inconveniences in many different ways". Having done so he formulated the critical question: "… Does a highway authority, aware of a danger, owe to road users a common law duty to act as would a reasonable authority in the circumstances, and hence be potentially liable in damages if it fails to attain this standard?" (1). The existence of a source of danger exposed road users to a risk of physical injury. Road users are vulnerable where danger exists and the users may be unfamiliar with the road. (2). The authority knew of the dangers of which road users may not have known. (3). The authority had not complied with its public law obligations and had caused the accident. (4). The 1980 Act gives a right of compensation where duties are imposed and no sensible distinction could be drawn between liability for failing to remove a dead tree fallen into the road and carelessly failing to act when it learned a tree was liable to fall at any moment. (5). Public law could provide no remedy for physical injury caused by a breach of public obligations to remove an obstruction. (6). A highway authority alone has the capacity to remove a source of physical danger to road users. (7). A common law duty would impose no more onerous a duty than existed at public law "… its decisions on such issues [extent of danger, weight and cost of remedy] will not be easily overturned by the courts". (8). The existence of a duty would have a salutary effect on tightening administrative features.[68]Since there must be a limit to the extent to which this judgment is burdened by citation and review of the cases, and because I take the view that Lord Nicholls’ speech in Stovin represents the highpoint for Mr Ross’s argument, I propose now to state my conclusions on his argument. CONCLUSIONS[69]In my judgment the critical features of the Claimants’ case stem from the character of the danger upon which they rely, namely frost. It may be obvious to state it, but in the context of the argument it has to be emphasised, the Defendant is not the source of the danger which frost presents and its opportunity to deal with it when it arises is limited. As a statutory body it has no particular knowledge about the hazard, over and above the general knowledge which is that frost on the road creates a danger. It is true that by establishing an ice alert system through local stations the Defendant has the means to find out, at any time, what the frost situation is likely to be in any area. In the final analysis this is the central foundation of the Claimants’ case, but it gives rise to insuperable difficulties in the legal analysis required.[70]A road user can see when frosty conditions exist and learn in advance by listening to weather forecasts whether there is a likelihood of frost. Just as a motorist can make a choice whether to drive at night, in fog, in wet and windy conditions, at weekends and when there may be heavy congestion, all being examples of circumstances in which the user will be at greater risk of injury, so he can choose not to drive when it is frosty or frost is likely because temperatures are below zero or he can drive but taking special care to limit the effect of the conditions.[71]Whilst it is obvious that frost gives rise to a foreseeable risk of danger and physical injury to road users, the risk is there for all to see or anticipate. Fog is an equivalent danger but it is not suggested the Defendant is bound to take any action in connection with fog. Preventing it would be impossible but reducing its impact by, for example, installing amber fog lights on all roads or some notoriously foggy routes, would be possible. As I have already pointed out, a highway authority has lighting powers (section 97) but it has long been decided that a street lighting authority acting under permissive powers is not liable for accidents arising from a failure to light (even where the lighting system is erected). See Shepherd v. Glossop Corporation [1921] 3 KB 132; Fisher v. Ruislip & Northwood UDC [1945] KB 584 and the approval of Shepherd v. Glossop in Stovin at 953 f-g.[72]I am satisfied that a sensible distinction can be drawn between the power or duty to remove obstructions and prevent obstructions on the highways which the law recognises and the suggestion that all foreseeable risks of harm to road users should come within the same legal analysis.[73]The three possible formulations of the duty (see paragraph 54 above) which have been put forward demonstrate the breadth of the argument and its distance from the statutory context of the 1980 Act. Option 1 With respect, it cannot be a case of protecting the highway from hoar frost and ice. The highway is not thereby endangered. Options 2 and 3 In my judgment it is 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 which would alleviate the danger constituted by an obstruction. Lord Nicholls’ dissent in Stovin was, in my judgment, particularly driven by(1) the knowledge of the authority of the existence of the danger and(2) a statutory context containing powers and duties in connection with the removal of obstructions.

Option 1

[74]The Claimants have a forensic advantage in presenting their case which is derived from the TRMM and the national policy to which it has given rise. It is therefore easy to submit as a fact that all reasonable measures to prevent ice forming, from frost or removing it from the road, have been assessed, drawn up and implemented. Considerable sums of public money must have been spent in setting up widespread ice alert stations. It is also true that in this instance Mr Chandler did not use, as he could have done and was by the terms of TRMM expected to use, the ice alert system. It is also true that Bedfordshire County Council had not followed the requirements of TRMM by establishing an effective liaison between neighbouring authorities so as to ensure the continuity of treatment of the roads passing between its boundaries and neighbouring authorities. It received faxes at its master station but the duty engineer had no access to the faxes whilst on duty away from the office. These actions or inactions justify serious criticism of the way in which the winter maintenance scheme was carried out, but the question whether the Defendant was under a duty of care at common law to protect the deceased and all road users, in Bedfordshire and everywhere else, from the consequences of frost on the road cannot be answered by reference to the powers he had exercised so as to improve the roads. This is to deny the distinction between powers and duties.

Having referred to a number of wider issues, Lord Hoffman concluded:

[75]It has not been argued that had a scheme such as TRMM not been established the Defendant could have been compelled by judicial review to establish it. The policy and substantial revenue issues involved in setting up the scheme would have presented insuperable obstacles to such a claim. In my judgment the Claimants have not demonstrated why the legal position is changed by the fact that the relevant power has been exercised. Unlike X v. Bedfordshire County Council and other of the cases referred to in paragraph 63 above, the deceased was not drawn into a more proximate relationship with the Defendant than any other road user or potential road user choosing to drive on the 22nd December 1996, either by the action of the Defendant in exercising the power or by Mr Chandler acting on the Defendant’s behalf in the way that he did. There are no circumstances which distinguish the action of the Defendant in acting so as to exercise his power and the circumstances which the exercise of power has created. I would lean strongly against the suggestion that by exercising powers which benefit the public at large, a legal path to the acknowledgement of the existence of a duty is to be created. Such a principle would be likely to inhibit the beneficial exercise of the power to improve in the general public interest and come close to denying the distinction between a duty and a power.[76]A relevant change in the circumstances created by the existence of TRMM and the known practice of highway authorities to salt roads was relied upon by reference to the principle of general reliance. I recognise the developing area of the law but taking the analysis from Lord Hoffman in Stovin at page 953e–954f, I have not had the benefit of an inquiry into the role of the exercise of the statutory power to salt roads and its impact on the behaviour of members of the general public. I would be slow to conclude, without evidence, that the general public have as a result of salting procedures on major or trunk roads, concluded that there is no need for them to take account of the risks to them from frost. Further, I would be slow to conclude what level of expectation in connection with salting procedures the general public rely upon.[77]Although I have concluded that there were serious shortcomings in the performance of Mr Chandler and Bedfordshire County Court when tested against the spirit and requirements of TRMM, it is by no means clear what the precise requirement of MA’s was in connection with the 24 hour duty of engineers. Bedfordshire appear to have regarded the value to be obtained from ice alert to be historical rather than contemporary. To be a source of confirmation going to the accuracy of the weather reports which have been given over a period rather than an indication of a change or local departure from a regional forecast. The core aspect of the Bedfordshire practice was the Met Office reports for Bedfordshire.[78]There was obviously a discretionary judgment to be exercised by individual engineers about when (if at all) the ice alert system was accessed. If it was not to be every hour, for example, how often would it be reasonable to expect access to be made? Must it be each of the five stations in Bedford or only the coldest? These considerations are not devoid of managerial and budgetary considerations for they involve staff and management. They also involve training considerations. Although the suggestion advanced by Mr Chandler that he considered himself insufficiently qualified to interpret the ice alert information and therefore preferred to rely upon the Met Office was taken, in my judgment, too far, it seems to me that interpretation could, on occasions, give rise to complications and if it was required to be done as a matter of duty, to give rise to requirements for more intensive instruction and training.[79]TRMM, even implemented to its full spirit and content, involves the exercise of judgment by an engineer, namely to interpret the information and then to decide whether to order a salt run. Ordering a salt run involves expense and ordering one when it is unnecessary gives rise to environmental considerations. There was agreement that salt can affect the environment and the use was, so far as possible, to be used on a need basis.[80]Matters of judgment also come into a decision as to whether to order a salt run when frost has settled on roads. On the morning of the 22nd December 1996 Mr Chandler could have ordered a general salt run at an earlier hour. Had he, for example, decided one was not necessary because the temperature was likely to rise before its completion different considerations would arise. Summary of

CONCLUSIONS

[81]For convenience, I will attempt to summarise my conclusions but their full content is set out in the preceding paragraphs of this judgment.[82]The policy of the Highways Act 1980 provides for the occasions when the exercise of a power give rise to compensation. The power under section 62(2) to improve does not give rise to a right to compensation.[83]There is no discernable policy in the 1980 Act that the transient hazards of nature from fog, ice or wind are to be provided against by highway authorities. They are matters which fall within the discretion of the authorities.[84]There are no exceptional grounds for concluding that the policy of the statute requires compensation to be paid to those who suffer loss because the power to prevent harm from frost was not exercised or, if exercised, not implemented to the full.[85]The mere existence of TRMM does not make it reasonable to impose a duty upon the Defendant to pay compensation to those who suffer physical injury because the scheme was not properly implemented. The policy of the Act (as borne out by the cases) is to provide for an exhaustive range of powers giving rise to an entitlement to compensation and statutory duties which are based upon "centuries of highway law". There is no general obligation to be discerned from the statute that the Defendant is under an obligation to render roads safe for road users. (c/f the position in Canada, Brown v. British Columbia & another (1994) 112 D.L.R. (4th) 1..[86]The mere existence of TRMM did not create a set of circumstances in which there was a sufficient relationship of proximity between the Defendant and the deceased to require the Defendant to act as he could have done through Mr Chandler on the 21st and 22nd December 1996.[87]Lord Nicholls’ eight points listed in Stovin are not met because the Claimants’ argument involves:(1) precautionary action being taken in connection with a transient and anticipated hazard (not a known danger);(2) the danger is not within the class of dangers (obstructions) which the Act contemplates as requiring action by highway authorities;(3) a common law duty could impose even more onerous obligations than TRMM presently includes (training, accessing ice alert and qualified staff).[88]It follows that I reject the submission that the Defendant was under a common law duty of care to prevent ice forming from hoar frost or to remove frost from the road on 21st and 22nd December 1996.

Contributory Negligence

[89]If I am wrong in the above conclusion I would hold the deceased one third to blame for driving at an excessive speed in known frosty conditions. It is very easy to exceed low speeds in modern cars but the conditions of which the deceased must have been aware, in my judgment, called for a speed of significantly less than 45-50 mph.[90]The court being concerned only with liability, there will be judgment for the Defendant.