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 1½ 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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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 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 the least, odd that that possibility had not been considered if it was regarded as viable. The proper construction of section 41(1) was an open question in the House of Lords and Lord Denning MR’s dissenting view in Haydon was at least a possible outcome. The judge in the present case considered that the reasoning in Goodes was relevant to what he had to decide. I agree.

Mr Ross had submitted to the judge that the respondent had laid down a comprehensive and detailed scheme for preventing accidents due to the presence of ice and snow on roads. The question whether there was a duty of care in negligence depended on applying the tripartite test in Caparo v Dickman [1990] 2 AC 605. Accidents were foreseeable on unsalted icy roads. The deceased was one of the class of people whom the policy of salting roads was designed to protect. It was just and reasonable to impose a duty.

The judge said, with extensive reference to Stovin v Wise [1996] AC 923 at 952-953, that it was necessary to look at the statutory context. Where parliament has conferred a discretionary power,

The judge concluded that, in the absence of a duty under section 41(1) of the 1980 Act, the respondent had power under section 62(2) to promote the scheme to prevent ice on highways. Section 62(2) provides for work for the improvement of the highway. Improvement is partly defined in section 329. Mr Ross submits in this court that the power was, on the contrary, one of those referred to in section 62(3) and that sections 100(3) or 102(3) relevantly provide for the payment of compensation. I have no hesitation in rejecting this submission. The operations listed in section 62(3), and specifically in sub-subsections (g) and (h), do not in my judgment embrace salting or gritting the highway. The compensation provision in section 100(3) is for the benefit of owners or occupiers of land, not motorists. The compensation provision in section 102(3) is for the benefit of persons who suffer damage by reason of the execution of works on the highway by the provision of barriers or such like. This again would not include motorists, and failing to salt the highway cannot in the context constitute the execution of works on the highway.

I have some hesitation in agreeing with the judge that the power to salt the highway is to be regarded as encompassed within work for the improvement of the highway under section 62(2). But there is no issue in this appeal but that there is such a power (which I do not doubt) and I am content to adopt the judge’s conclusion that it may be found in section 62(2). Mr Ross accepts that there is no statutory duty and that, apart from his submission, which I have rejected, relating to sections 100(3) and 102(3), there was before the recent amendment to section 41 no relevant statutory provision for compensation.

The judge concluded from Lord Hoffmann’s analysis in Goodes of the common law origins and development of the statutory powers of highway authorities that there was no general common law duty on highway authorities to prevent the formation of ice on roads. The judge was, in my view, correct in this to the extent that the exercise of a statutory power alone does not give rise to a duty at common law. He was also, I think, correct to reject Mr Wilkinson QC’s submission that that was an end of the claim. He had to consider whether, in the present case, the common law duty had arisen from facts and circumstances arising in the context of the statutory framework. Mr Ross could not however escape certain consequences, including the fact that the statutory framework was built upon centuries of highway law with which the policy of the consolidating statutes was likely to conform, and the factors which leaned against the existence of a duty as part of the duty to maintain.

The judge, in further reference to Stovin v Wise, recorded that Mr Ross relied heavily on the speech in that case of Lord Nicholls. This is no longer available to him following Gorringe.

The judge said that the actions or inactions of the county council and Mr Chandler justified serious criticism of the way in which the winter maintenance scheme was carried out. However, the question whether the respondent 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, could not be answered by reference to the power he had exercised to improve the roads.

The core of the judge’s decision is in his paragraph 75, as follows:

The judge summarised his conclusions as follows:

In Gorringe, the claimant was severely injured when she lost control of her car as she approached a curve in the road at the crest of a hill. She collided with an oncoming bus, itself driven properly on its correct side of the road. She claimed that the respondent highway authority were in breach of a duty owed to her because they had failed to give proper warning of the danger posed by the crest in the road, in particular by failing to provide a slow sign. The House of Lords dismissed her appeal against the dismissal by the majority of this court of her claim. The House of Lords held that the obligation to maintain the highway in section 41(1) of the 1980 Act did not include the provision of information by means of street furniture or painted signs. They further held that the public law duties in section 39 of the Road Traffic Act 1988, which were not themselves enforceable by a private individual in an action for breach of statutory duty, did not give rise to a parallel duty of care at common law to take appropriate measures, including painting of warning signs on the road.

Lord Hoffmann explained that the general rule is that, even in the case of occupiers of land, there is no duty to give warning of obvious dangers. He referred to Tomlinson v Congleton Borough Council [2003] UKHL 47, [2004 1 AC 46. A highway authority is not the occupier of the highways. Its duties have been more narrowly defined both by common law and by statute. The common law duty to repair was the only duty of the inhabitants of the parish. It was a public duty enforceable only by a prosecution on indictment. In all other respects, the public had to take the highway as they found it. The users of the highway were expected to look after themselves. When the duty was transferred to highway authorities, the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual. It became a statutory duty in what is now section 41(1) of the 1980 Act enforceable by private action subject to the defence in section 58. But the duty to maintain the highway under section 41 did not extend to removing or guarding against ice or snow (Goodes).

It was accepted in Gorringe that, without assistance from the statute, a common law negligence claim would be hopeless. If the highway authority owed no duty at common law other than to keep the road in repair and even that duty was not actionable in private law, it was impossible to contend that it owed a common law duty to erect warning signs on the road. It was insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.

In Stovin v Wise, it had been contended that the highway authority was in breach of duty in failing to improve visibility at an intersection where a road accident occurred. The decision of the majority of the House of Lords was that the authority, which was under no statutory duty, owed no private law duty. Lord Hoffmann considered that it may have been ill-advised for the majority in Stovin v Wise to have speculated upon the suggestion that there might exceptionally be a case in which a breach of a public law duty could found a private law right of action. The majority rejected the argument that the existence of the statutory power to make improvements to the highway could itself give rise to a common law duty to take reasonable care to exercise the power or even not to be irrational in failing to do so. He found it difficult to imagine a case in which a common law duty could be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. He noted by way of example that the majority reasoning in Stovin v Wise had been applied by the Court of Appeal in Capital & Counties plc v Hampshire County Council [1997] QB 1004 to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services. He did not consider that the public interest in promoting road safety by taking steps to reduce the likelihood that even careless drivers will have accidents required a private law duty to careless drivers or any other road user.

Lord Hoffmann made clear, at paragraph 38 of his opinion, that the appeal in Gorringe was concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. I would add that the same must apply to a mere statutory power. The House was not concerned in Gorringe with cases in which public authorities had actually done acts or entered into relationships or undertaken responsibilities which gave rise to a common law duty of care. In such cases, the fact that the public authority acted pursuant to a statutory power or public duty would not necessarily negative the existence of a duty. Lord Hoffmann gave examples from decided cases. These included Barrett v Enfield London Borough Council [2001] 2 AC 550, where the council assumed parental responsibilities towards the plaintiff when he was taken into care. The plaintiff did not rely on a common law duty of care generated by the existence of statutory powers. It was true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so. Lord Hoffmann also referred to Phelps v Hillingdon Borough Council [2001] 2 AC 619, where a duty of care was owed by a local education authority, not because their powers derived from statute, but because their psychologist who was alleged to have been negligent had impliedly undertaken to exercise proper professional skill. Lord Hoffmann also referred to Bird v Pearce [1979] RTR 369 (to which I shall refer later in this judgment) which he described as a difficult case. He expressed no view about whether it was correctly decided. But he accepted the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation. As will be seen, this principle now expresses the high point of the present appellant’s case in law.

Lord Scott of Foscote expressed Mrs Gorringe’s relevant contention as being that section 39 of the 1988 Act, although it could not be construed so as to justify the conclusion that a private action in damages could be brought for breach of the statutory duty, could nevertheless be used to jack up the council’s common law duty of care to a standard sufficient to enable the failure to provide suitable signage to constitute a breach of the duty. He referred to Bird v Pearce, saying that there were some difficulties in applying the Court of Appeal’s reasoning so as to justify the result of the case. But the principle that a highway authority may be liable if it introduces a new danger to the road is plainly unexceptionable.

Lord Scott said that section 39 did not impose a duty owed to any individual. He considered that the section could not contribute to the creation of a standard of care which, in the absence of the section, the common law would not impose. With reference to Stovin v Wise, he expressed the opinion, that, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care which would not have been owed at common law if the statute were not there. He did not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals. He said that there were of course many situations in which a public authority with public duties had a relationship with a member of the public that justified imposing on the public authority a private law duty of care towards that person. He referred to Barrett and Phelps. But the council in Gorringe had no relationship with Mrs Gorringe that it did not have with every other motorist driving on the stretch of road in question.

Lord Scott concluded in paragraph 76 as follows:

Lord Rodger of Earlsferry also referred to Bird v Pearce in terms which suggest that he may not have been convinced that it was a correct decision on its facts. But assuming that the council’s failure in that case to repaint signs had created a danger to motorists, on ordinary common law principles the council were liable to the plaintiff who suffered injury due to the danger they had created. The fact that the authority had been exercising a statutory power when they created the danger was irrelevant, since there was nothing in the statute to provide them with a defence against their common law liability. He said with reference to Larner v Solihull Metropolitan Borough Council [2001] RTR 469 that, on the reasoning of the majority in Stovin v Wise, there was nothing to show that the enactment of section 39 of the 1988 Act prompted the emergence of a common law duty of care on councils to replace warning signs. So the mere fact that, in a given case, a reasonable council would have exercised its powers by providing an additional sign did not alter the fact that they would have been under no common law duty to do so. Conversely, even if it would have been wholly unreasonable for the council not to provide an additional sign, this did not mean that they were in breach of a common law duty to do so. Lord Rodger disapproved this aspect of the reasoning of the Court of Appeal in Larner. In this, he was in agreement with other members of the House.

Lord Rodger concluded at paragraph 93 as follows:

Lord Brown of Eaton-under-Heywood agreed with Lord Hoffmann that the line of authority represented by X v Bedfordshire, Barrett and Phelps was to be distinguished. This was essentially because the common law duty of care in those cases was found or suggested to have arisen, not by reference to the existence of the respective authorities’ statutory powers and duties, but rather from the relationship in fact created between those authorities and the children for whom in differing ways they had assumed responsibility. He said that road users are entitled to rely upon the state of the road surface and accordingly the primary liability for any loss resulting from a breach of the section 41 duty rests on the authority. Road users are not, however, entitled to rely upon the highway authority with regard to the various other hazards of road use. They are not entitled to suppose that their journeys will be free from these, or that the need for care will generally be highlighted so as to protect them from their own negligence. Lord Brown found it difficult to contemplate a case in which a road accident could occur without negligence on the part of at least one of the road users involved, unless either it resulted from the physical state of the road, or the highway authority would be liable in a conventional common law negligence action, irrespective of any particular statutory power or duty, for having enticed the motorist to his fate by some positive act. Assuming that the road user is not to be regarded as negligent, he must inevitably have been misled into whatever danger precipitated his accident. Such cases might be expected to be few and far between, and Lord Brown would certainly not regard Bird v Pearce as one of them.

There seemed to Lord Brown to be no good reason for superimposing upon such general powers and duties as are conferred upon highway authorities a common law duty of care in respect of their exercise. Nor did it seem to him that Parliament could have intended a private law liability in damages to flow from a public law failure in the exercise of the authority’s powers or the discharge of its duties. Where with regard to highways Parliament does intend users to have a remedy for damages it says so, as initially it did in 1961 and again, by extending the section 41 duty to encompass the removal of ice and snow, in 2003. Even if, contrary to the conclusions arrived at by the Court of Appeal, Calderdale failed in its public law duty under section 39, that gave rise to no corresponding breach of duty of care actionable in private law.

Lord Steyn agreed with the detailed opinions of the other four members of the House in relation to the legal position in regard to highways. I agree with Mr Wilkinson that his subsequent observations do not modify that agreement. They are directed to causes of action in negligence and statutory duties and powers generally apart from those relating to highways. It is, however, relevant to the present appeal that Lord Steyn noted Lord Hutton’s exhortation in Barrett at page 586, that courts should decide the validity of a plaintiff’s claim against a public authority by applying directly the common law concept of negligence.

It is necessary to draw together a synthesis of the opinions in Gorringe as they apply to the present appeal. Where a public authority acting under statutory duty or power is alleged to be liable for personal or physical injury, it is first necessary to determine whether the statute, properly construed, provides a relevant private law right of action. The 1980 Act does this in relation to the duty of highway authorities to maintain the highway (section 41 of the 1980 Act), but not relevantly otherwise. For accidents occurring before 31^st October 2003, the duty to maintain the highway did not include a duty to prevent or remove ice or snow (Goodes). Before that date, therefore, there was no statutory duty giving rise to a private law right of action for failure to prevent or remove ice. Conversely, the statute did not exclude the possible existence in particular circumstances of a common law duty of care.

Although statutory duties or powers which do not give rise to a private law right of action may constitute part of the relevant factual background, the existence of those duties or powers cannot reinforce parasitically the existence of a common law duty of care in the public authority. In short, unless a statute on its proper construction provides a private law right of action or conversely unless the statute excludes it, the existence of a common law duty of care depends on unvarnished common law principles.

Personal or physical injury directly inflicted is the first building block of the law of negligence. Unless such injury is excused, it will almost always be a component of a breach of a duty of care owed by the person inflicting the injury to the person or the owner of the material object injured. For personal or physical injury which the defendant does not inflict directly or for economic loss, it is usual to look to Caparo v Dickman [1990] 2 AC 605 and Henderson v Merrett Syndicates [1995] 2 AC 145 for the unvarnished common law principles. For the reasons which I explained with reference to these cases in Merrett v Babb [2001] EWCA Civ 214, [2001] QB 1174 at 1192-3 (paragraph 41), reliance is an intrinsically necessary ingredient of a duty of care which appears in every formulation of a test. For the rest, it is very often a helpful guide in particular cases to ask whether the defendant is to be taken to have assumed responsibility to the claimant to guard against the loss for which damages are claimed.

Mr Ross refashioned his submissions to take account of the decision in Gorringe. He submitted that the evidence established a public expectation in 1996 whereby the county council assumed responsibility to perform properly the salting operations which it had undertaken to perform in its agreement with the respondent. The expectation derived, it is said, from

Mr Ross relied heavily on Bird v Pearce. In that case, a car emerging from a minor road collided with a car approaching from its near side along a major road. The highway authority was held one third responsible for the accident because it had, in the course of resurfacing works, obliterated road markings in the minor road and had not, pending their replacement, substituted any temporary warning signs. The Court of Appeal held that the authority owed a duty to all road users to ensure that obliteration of its road markings did not create a hazard. Mr Ross submitted that the highway authority in the present case similarly created a hazard by fostering a public expectation that the road would be salted and by then failing to salt it.

I do not consider that Bird v Pearce helps the present appellant. It is, I think, plain from passages to which I have referred earlier in this judgment that all members of the House of Lords in Gorringe were doubtful whether Bird v Pearce was correctly decided on its facts. The limits of any principle which it exemplifies were expressed by Lord Hoffmann in paragraph 43 of Gorringe to the effect that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance on such an expectation – see also Lord Scott at paragraph 66.

Mr Ross also relied on Mercer v South Eastern and Chatham Railway Companies’ Managing Committee [1922] 2 KB 549, a first instance decision in which a claimant was knocked down by a train when he went through an unlocked gate onto the railway line. The defendants were held liable, because it was their practice, known to the plaintiff, to keep the gate locked when trains were passing, but the gate was left unlocked on this occasion. I do not consider that this decision contains or exemplifies any principle which goes beyond those in Gorringe.

In my judgment, the claimants do not establish the existence of a relevant duty of care in the present case for two principal reasons. First, I do not consider that the respondent can properly be taken to have assumed a general responsibility to all road users to ensure that all or any trunk roads would be salted in freezing conditions. It is the primary responsibility of motorists to take care for their own safety and that of their passengers and other road users. The existence of the delegation agreement, the Trunk Roads Maintenance Manual and the highway authority’s Winter Maintenance Programme does not, I think, predicate an assumption of responsibility by the respondent to motorists generally that the system for salting roads will always be carried out without fail. As cases such as Barrett and Phelps indicate, an assumption of responsibility sufficient to create a duty of care normally requires a particular relationship with an individual or individuals. There is no evidence that the details of the system which the respondent put in place with highway authorities were known to the deceased or the motoring public generally. A general expectation, such as the police witnesses spoke of, cannot alone support an assumption of responsibility.

Second, I do not see how the appellant’s case sustains the necessary element of reliance. There is no evidence that the deceased in fact relied on an expectation that the road had been salted. The judge’s contingent finding as to contributory negligence does not, contrary to Mr Ross’ submission, predicate or support such a finding. Such a finding would be entirely speculative. He may have known or suspected that the road had not been salted. Further, the terms of the pamphlet to my mind make a case of reliance unsustainable. This was perhaps the one document most likely to achieve publicity for the highway authority’s salting intentions. It had a section containing advice for drivers. This included an injunction not to travel too fast and to reduce speed in possibly icy conditions. It also stated that even the most carefully organised procedures can suffer setbacks from mechanical breakdowns. Some roads that are normally treated may not be. The weather is unpredictable even with modern forecasting. Weather predictions can sometimes be wrong. Although the county council try to help, the onus is firmly on road users to drive according to the prevailing conditions. “You should never assume that a road has been salted.” In my judgment, the claimants established nothing to detract from this last statement. In 1996, motorists in Bedfordshire may have known in general, or even particular terms that the highway authority salted roads in icy conditions. But this did not, in my view, entitle a motorist to assume that a road had been salted. If they did, they were failing to take proper care for their own safety. Motorists could not therefore properly rely on the highway authority to have salted a potentially icy road. That negatives the existence of a duty of care.

In the absence of reliance and of positive action by the respondent whereby the respondent was to be taken as having assumed responsibility to the deceased, I do not see how the respondent could properly be said to have created a trap. The respondent relevantly did nothing. If, as I think, the deceased was not entitled to rely on the respondent to have salted the road, the fact that the road was not salted is not to be regarded as a trap. The deceased was not entitled to assume that the road had been salted. He had a primary duty to have regard for his own safety. This conclusion may seem harsh, when it was formerly thought that the highway authority did have a duty to salt the roads in icy conditions and when Parliament has subsequently imposed such a duty. But the fact that Parliament needed to do so is an indication that, without legislation, the common law did not, absent special particular circumstances, recognise such a duty.

The view which I have expressed is generally consonant with the law relating to rescue organisations – see for example Capital & Counties v Hampshire County Council and OLL v Secretary of State for Transport [1997] 3 All ER 897. In the Capital & Counties case, the fire authorities were held not to owe a general duty of care to answer a call nor to take care to do so, except to the extent that by positive negligent intervention they had created the danger which caused physical injury or made it worse. In OLL, the same principle was extended to the coast guard conducting rescue operations at sea. As in the present appeal, the claimant relied on an internal manual and orders intended and designed to ensure that the coast guard discharged its responsibilities properly, efficiently and effectively. As in the present appeal, it was said that the coast guard had encouraged an expectation in the minds of the public that they would respond promptly and appropriately to marine emergencies. It had thereby assumed responsibilities to the public for the execution of search and rescue missions in coastal waters. It was submitted that a duty of care arose from the expectation that the coast guard would act carefully, the expectation being created by ministerial pronouncement, published procedures and a common knowledge that the coast guard would act when it knows of an emergency at sea. In rejecting these submissions, I considered that they strained what Lord Hoffmann had said in Stovin v Wise at page 953 beyond breaking point. I read a passage in the judgment of Stuart Smith LJ in Capital & Counties [1997] 3 WLR 342 as in effect saying that in English law no duty of care arises from a general expectation. I further considered that a particular duty derived from a specific expectation publicly induced and relied on that a lighthouse authority will not withdraw an existing light without giving due notice – an example discussed by Lord Hoffmann in Stovin v Wise – was very different from a general duty on the coast guard to conduct any search and rescue operation they may undertake without negligence.

My view that there is no relevant duty of care in the present case also, I think, accords with decisions of this court in cases such as Kent v Griffiths [2001] QB 36 and Watson v British Board of Control [2001] QB 1134. In each of these cases, a duty of care was found to exist where the defendants in particular circumstances assumed responsibility to a particular plaintiff. In Kent v Griffiths, the ambulance set off to take the particular plaintiff speedily to hospital. As Lord Woolf MR said at paragraph 45, the only member of the public who could be affected was the claimant. It was the claimant alone for whom the ambulance had been called. In Watson, the Board of Control promoted a particular boxing match in which the plaintiff participated under rules set by the Board which stipulated medical attendance which was appropriate. Lord Phillips, said at paragraph 53, that a number of authorities show that an acceptance of the role (usually under statutory powers or duties) of protecting the community in general from foreseeable dangers does not carry with it a legal duty of care to safeguard individual members of the community from those dangers. He referred to the Capital & Counties case. As he read the judgment in Kent v Griffiths, the duty of care turned on the acceptance by the ambulance service of the request to provide an ambulance and thus the acceptance of responsibility for the care of the particular patient – see paragraph 55. He said at paragraphs 77-79:

Thus, in my judgment, the respective claimants’ success in Kent v Griffiths and Watson were for reasons which do not detract from my view that the present respondents were not to be taken to have assumed responsibility to the deceased, and that the deceased cannot be taken to have relied on the respondents to see that the road had been salted. The same applies to such cases as Barrett and Phelps, as was indicated in Gorringe.

For these reasons, I would dismiss this appeal.

I agree.

In Haydon v Kent County Council [1978] QB 343 all three members of this court allowed an appeal by the defendant council against a decision of O’Connor J to the effect that it was liable to pay compensation to a lady who had broken her ankle when walking down a steep, narrow, made-up footpath which represented the shortest way into the centre of Kemsing. Her accident occurred when she slipped on impacted snow and ice which had built up since a short wintry spell three days earlier.

Much of the argument on that appeal turned on the meaning of the highway authority’s statutory duty to “maintain” the highway. The majority of the court (Goff and Shaw LJJ) considered that the word embraced the removal of snow and ice and the provision of temporary protection by gritting. Lord Denning MR considered that it did not, and that the obligation of a highway authority to clear roads that are snowed up or ice-bound arose out of its duty to remove obstructions to the highway pursuant to what was then section 129 of the Highways Act 1959, and a breach of that duty did not give rise to a civil action for damages.

By chance, it was not until the House of Lords heard the appeal in Goodes v East Sussex County Council [2000] 1 WLR 1356 that it was given the opportunity for the first time of considering the meaning of the word “maintain” in the context of modern highway legislation, and Lord Hoffmann (who gave the leading speech) said at p 1360 that he found the judgment of Lord Denning MR so completely convincing that he wondered whether he really needed to add anything to it. In the meantime, between November 1977 and June 2000 everyone took the law to be what the majority of the Court of Appeal in Haydon had declared it to be, and no doubt appropriate budgetary arrangements were made within central and local government to ensure that public money was available to pay monetary compensation to those who had suffered injury due to a highway authority’s breach of duty in this respect.

Mr Sandhar died in the early morning of 22^nd December 1996, nearly three and a half years before the House of Lords declared that the majority view in Haydon was wrong. All the evidence in the case shows unmistakeably that both the Department and the Bedfordshire County Council believed that their legal duty to maintain the highway encompassed the activities that were at the centre of this case. It also shows unmistakeably that their efforts to comply with this obligation were thwarted by the negligence of Mr Chandler, the engineer on duty in the night in question.

In the ordinary course of events this claim could have been settled without legal proceedings long before the House of Lords gave their decision in Goodes. Although the defendants did not have the opportunity of commenting on the detailed schedule which Ms Paneth gave us at the end of the hearing, there is no reason why we should doubt its main thrust. This was that from September 1997 onwards the defendants were maintaining, no doubt as a result of Mr Chandler’s version of events, that they had in fact carried out proper salting and gritting on the road in question before the accident took place (an assertion the judge found to be untrue), and that they delayed a very, very long time between September 1998 (when an application for pre-action disclosure was made) and May 2002 before disclosing for the first time the thermal map which showed that access to the Icelert system would have demonstrated a risk of hoar frost from 7 pm on the evening before the accident took place.

There was no suggestion that the defendants had been deliberately withholding documents. It is quite clear, however, that the combination of Mr Chandler giving a version of events which was not true, the defendants’ inability to produce obviously relevant documents until five and a half years after the accident, and the curiosity of our common law system that the House of Lords’ decision in Goodes had immediate retrospective effect (so far as outstanding claims were concerned) has led to a result with which nobody could feel at all happy. When Mr Sandhar died, Mrs Sandhar was 30 years old. Although her marriage to him had ended in divorce three years earlier, they had only lived apart for six months after the decree absolute, and at the time of his death they had two children aged eight and seven, and a baby less than three months old, all of whom depended on him for financial support.

Like May LJ, I do not see how this court can remedy what appears to be a significant injustice, because we have to administer justice in accordance with law, and it is a quirk of our legal system that judgments like those delivered by the House of Lords in Goodes have retrospective effect. But since the origins of Mrs Sandhar’s plight appear to be founded in the matters Ms Paneth set out in her schedule (whether or not one or more of them might have been re-worded if the defendants had had a proper opportunity to comment on them), I for one would welcome it if some administrative means could be found of assisting Mrs Sandhar out of public funds given that maladministration seems (and I stress the word “seems”) to have been the reason why this claim was not settled long before June 2000.

There is one other matter which I wish to add to May LJ’s comprehensive judgment, with which I agree. Mr Sandhar left his home shortly after 7 am on that cold Sunday morning in December. The judge recorded that it was agreed that he would have had to clear his car of frost before he could drive it on the road. There was evidence before the judge about this stretch of road from a witness who lived in Turvey. She said that in her experience the series of bends from Station Road, Turvey (where she lived) rising up to the top of Picts Hill were a hazard because in the winter the road was particularly prone to ice. Like other witnesses she attributed this phenomenon to the presence of mature trees which overhung the bends. This was the stretch of road on which Mr Sandhar sustained his fatal accident when he was travelling at a speed of 45 mph. Another witness, who was travelling down the A6 from Rushden a little earlier that morning, could not control her car even though she had reduced her speed to 20 mph. Her accident occurred a few miles to the north of the site of Mr Sandhar’s accident.

In these circumstances I regard the claimant’s challenge to the judge’s finding of 33% contributory negligence (on the assumption that negligence was proved) to be wholly devoid of merit. Although Parliament has now imposed on highway authorities the new statutory duty to which May LJ has referred (see para 11 of his judgment) this change must not be understood by anyone to water down what Lord Scott of Foscote said in Gorringe v Calderdale MBC [2004] UKHL 15 at 176, [2004] 1 WLR 1057:

Sadly, it was obviously not safe to drive along that stretch of road on that frosty morning at 45 mph when it had clearly not been gritted, and the law does not allow a driver to divest himself of his own responsibility for his personal safety (and for the safety of others he may hit if he cannot control his car) in the manner suggested by this part of the appeal.

I, too, would therefore dismiss this appeal.