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

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:-

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.

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 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:

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:

Chapter 3.3 of TRMM is headed ‘Cover for Operational Purposes’ and specifies the following arrangements:

Chapter 3.3.3 headed ‘Response and Treatment Times’ is as follows:

Precautionary treatment is detailed in 3.4.2:

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:

Appendix 2 of the WMP specified the maintenance group; for week 7, namely the 17^th December 1996 to the 23^rd December 1996, the duty engineer was John Chandler. Appendix 3 detailed the contractual arrangement made with the Meteorological Office:

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 21^st 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 21^st December.

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:-

The 24 hour forecast for Bedfordshire from the Meteorological Office for midday to midday issued on 21^st December 1996, to which the email refers, was as follows:

Mr Chandler’s near contemporaneous report made no reference to:

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 21^st December and the fifth at 06.00 on 22^nd 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.

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 21^st/22^nd December 1996. The email to Mr Freeman had by this date been disclosed. Mr Chandler referred to the following:

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".

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.

He gave a detailed account for Friday 20^th 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:

His account for Saturday 21^st December included the following:

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.

(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.

Mr Chandler remains deeply affected by the events of 21^st/22^nd 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.

His evidence that he made a phone call to the Met Office on the night of 21^st December is not supported by:-

I find that:

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.

Lord Hoffman, who gave the leading speech, referred to the common law duty of care which had been pleaded in the case:

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.

Mr Ross’s argument involved the following steps:

The argument requires some detailed examination.

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:

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.

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.

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.

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).

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.

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:

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".

Diplock LJ formulated the general nature of the duty to maintain as;

Lord Denning distinguished the state of affairs from an occasional flooding adding:

The power to provide against hazards of nature (sub-paragraph (h)) can be found in section 102 of the Act:

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.

The following can be distilled from the case of Goodes:

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:

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.

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:-

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.

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".

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.

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".

Preventing obstructions, including ice and snow.

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.

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.

Preventing danger by placing signs or by other action

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.

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".

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).

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.

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:

Mr Ross, understandably, relied more heavily on the speech of Lord Nicholls who commenced his analysis by drawing attention to the highway authorities’ powers:

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:

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.

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.

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.

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.

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.

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.

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.

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 22^nd 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.

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.

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.

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.

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.

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 22^nd 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.

For convenience, I will attempt to summarise my conclusions but their full content is set out in the preceding paragraphs of this judgment.

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.

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.

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.

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. (4^th) 1..

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 21^st and 22^nd December 1996.

Lord Nicholls’ eight points listed in Stovin are not met because the Claimants’ argument involves:

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 21^st and 22^nd December 1996.

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.

The court being concerned only with liability, there will be judgment for the Defendant.