Sandhar and Another v Department of Transport, Environment and the Regions
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newman |
| Judgment Date | 19 January 2004 |
| Neutral Citation | [2004] EWHC 28 (QB) |
| Docket Number | Case No: 03/TLQ/0048 |
| Court | Queen's Bench Division |
| Date | 19 January 2004 |
[2004] EWHC 28 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Newman
Case No: 03/TLQ/0048
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
Hearing dates: 25 TH to 28 TH November and 1 st to 3 rd December 2003 (inclusive)
This action for damages arising out of a fatal accident which occurred on the morning of 22 nd 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 CA and 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.
On 15 th 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”.
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 1 st November 2003 (the commencement date of the amendment), will avoid.
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
According to the police reports, at about 07.19 am on Sunday 22 nd 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.
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 20 th or 21 st December, nor at any time on the 22 nd 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.
On the morning of 22 nd 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.
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.
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.
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
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 22 nd 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 1 st April 1990”. Section 6(1) entitles the Secretary of State to delegate the performance of his functions but not his responsibility.
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”.
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.
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...
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