Sandhar and Another v Department of Transport, Environment and the Regions
| Jurisdiction | England & Wales |
| Judge | Lord Justice May,Lord Justice Thomas,Lord Justice Brooke |
| Judgment Date | 05 November 2004 |
| Neutral Citation | [2004] EWCA Civ 1440 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2004/0411 |
| Date | 05 November 2004 |
[2004] EWCA Civ 1440
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr Justice Newman
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Brooke
Vice-President of the Court of Appeal (Civil Division)
Lord Justice May
Lord Justice Thomas
Case No: B3/2004/0411
John Ross QC and Sarah Paneth (instructed by Hawkins Russell Jones) for the Claimants
Nigel Wilkinson QC and William Hoskins (instructed by Treasury Solicitor) for the Defendant
Facts
1. At about 7.19 a.m. on Sunday 22 nd December 1996, the first claimant's husband was tragically killed when he lost control of the car which he was driving round a slight right hand bend on the A428 trunk road in Bedfordshire. He had travelled about 1 1/2 miles from his home. He was driving at 45 to 50mph. This was a speed at which the bend could be safely negotiated in dry or even wet conditions. He lost control because there was patchy hoar frost on the road and his car skidded on the frost or ice. He probably knew that it was generally frosty, because he would have had to scrape ice from his car windscreen before he left home. The road had not been salted over the night of 21 st/22 nd December nor on the previous day.
2. The Secretary of State, acting under section 6(1) of the Highways Act 1980, had delegated the performance of his functions relating to trunk roads in Bedfordshire to the Bedfordshire County Council under an agreement dated 22 nd April 1991. The delegated functions included snow clearing and salting of motorways and trunk roads. Guidance was given about this in a document called the Trunk Roads Maintenance Manual (“TRMM”). This required that, during the winter maintenance season, there should be an experienced member of staff available at all times to monitor road weather conditions and to react to such conditions. The member of staff should have direct access to actual and predicted information about road conditions. It was emphasised that there should be close liaison with neighbouring highway authorities to ensure that no sections of main carriageway were left untreated when they should be treated. To be most effective, precautionary treatment should be undertaken before ice formed or snow settled. Precautionary treatment of all trunk roads should be undertaken within a maximum response time of 1 hour and a maximum treatment time of 2 hours. Details were given of precautionary treatment, including spreading rates.
3. The County Council drew up a Winter Maintenance Programme. This was framed on the common understanding before the decision of the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 that highway authorities were under a duty to prevent the formation of ice and remove accumulation of snow on and from roads.
4. At the time of the accident in the present case, the duty engineer was Mr Chandler. He had access to information from the meteorological office, from 5 Icelert stations which gave details of road temperature and the dew point at each of their positions, and from neighbouring authorities.
5. The 24 hour forecast for Bedfordshire from the meteorological office from midday on 21 st December 1996, which Mr Chandler had, predicted that the night would be dry with clear spells and relatively low air humidity. No ice problems were expected except where there was seepage. The entry for hoar frost was negative with a high confidence rating for that opinion. Mr Chandler did not order a salt run on the Saturday as the roads were dry.
6. Mr Chandler gave evidence in the present proceedings. The judge did not regard his oral evidence as reliable. In summary, the judge found that Mr Chandler took no other steps to obtain any information relevant to the condition of the trunk roads after the afternoon update from the meteorological office at 4 p.m. on 21 st December. He did not make contact with the meteorological office again, nor did he obtain information from the Icelert system. He did not receive fax information from Northamptonshire County Council, which was in fact sent to his unmanned office, that they had salted their part of the A428. The judge in the present case found that, if Mr Chandler had accessed the Icelert system after 7 p.m. on 21 st December, he would have learned of the conditions giving rise to the formation of hoar frost. He would have ordered a salt run including the A428 and in all probability the accident would not have happened.
7. There were other road accidents caused by ice on the road in Bedfordshire that night. Mr Chandler was informed by the police of at least two of these – on the B530 and B660 – at about 6.10 a.m. on 22 nd December. His evidence was that he ordered a salt run on these roads and that, after a lot more reports, he ordered a full run at about 7.20 a.m. The judge was not satisfied that Mr Chandler ordered a salt run on the B roads at 6.10 a.m. He ordered a salt run on the A428 when he had heard of the fatal accident. The judge held that, if Mr Chandler had ordered a salt run to include the A428 at about 6.10 a.m., the stretch of road where the accident in this case happened would probably have been salted before the time of the accident, which probably would not then have occurred.
The proceedings and the appeal
8. On 19 th January 2004, Newman J dismissed the claimants' claim for damages against the respondent arising out of this accident, holding that the respondent owed no relevant duty of care. The claimant appeals against this decision with permission of the judge. The judge also held that, if he were wrong in his main decision, so that the respondent was in breach of duty, he would hold the deceased one third to blame for driving at an excessive speed in known frosty conditions. The claimant seeks to appeal this finding also, contending that there should be no contributory negligence. My conclusion on the main appeal would make a decision on this unnecessary. But I record my view that the judge was fully entitled to reach the contingent decision on contributory negligence which he did. I do not consider however (contrary to a submission of Mr Ross QC., leading counsel for the appellant) that the decision on contributory negligence helps the claimant's case on the existence of a duty of care.
9. The judge's careful judgment contains greater detail of the facts of the case than my summary. Mr Ross spent considerable time showing us details of the evidence. In my view, a more extended account of the evidence is not necessary since, in my judgment, the facts would clearly sustain a case of breach of duty by the respondent, if the first appellant can establish that the respondent owed her husband a relevant duty of care. That is the only issue of substance in this appeal, to which I now turn.
Previous authority
10. In Haydon v Kent County Council [1978] QB 343, a majority of this court (Lord Denning MR dissenting) had held that the duty to maintain the highway in section 44(1) of the Highways Act 1959 (now section 41(1) of the Highways Act 1980 and see also section 58) included removing snow and ice and taking such protective measures as would render highways and paths safe for vehicles and pedestrians in bad weather conditions. The law was thus understood – see for example Cross v Kirklees Metropolitan Borough Council [1998] 1 All ER 564 – until the House of Lords decision in Goodes v East Sussex County Council [2000] 1 WLR 1356. It was held in that case that a highway authority's duty under section 41(1) of the 1980 Act to maintain the highway was a duty to keep the fabric of the highway in such good repair as to render its physical condition safe for ordinary traffic to pass at all seasons of the year. It did not include a duty to prevent the formation of ice or remove an accumulation of snow on the road. It was not contended in Goodes, as it is in the present appeal, that there was a liability at common law in negligence (see 1358a).
11. The effect of Goodes has been reversed by a statutory amendment to section 41 of the 1980 Act to add a particular duty on highway authorities to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice. The amendment came into force on 31 st October 2003 and is not available to the present claimant. She is in the unfortunate position, shared, we are told, with a handful of other claimants, that her claim was not heard or settled before Goodes (when it would probably have been determined in her favour on the then understanding of the law), but that she does not have the benefit of the statutory amendment. Ms Paneth advanced a submission to the effect that delay in pre-action disclosure in the present proceedings might somehow be helpful to the existence of a duty of care. I do not see how this could possibly be so.
12. The leading authority upon which, in my view, this appeal largely turns is Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, 1 WLR 1957. This was decided after Newman J gave his judgment in the present case, so that he necessarily did not have the benefit of it.
The judge's judgment
13. The judge first considered Goodes. He concluded that it is binding authority that no duty relating to ice on the highway arose under section 41(1) of the 1980 Act, but that the question whether there was a common law duty in negligence was not before the House. In my view, he was right about this, although it is, to say...
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