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The cold truth - public lapse does not mean private claim

legal matters

In our claims-conscious world, local authorities increasingly find themselves in the line of fire. A decade ago, before the House of Lords decided Murphy v Brentwood (1991), claims for the cost of repairing defective buildings were frequently brought against the council concerned, alongside the designers and the builder. Did not the council pass the plans and inspect the defective foundations? Of course it was liable.The decision in Murphy swept aside the old law and held that the council did not owe a duty to keep the owners of defective buildings safe from the cost of repair. This, they said, was economic loss and irrecoverable in an action in tort.

The responsibilities of local authorities are not limited, however, to building control. Members of the public suffer losses across the whole spectrum of human experience, from financial loss to loss of life, as a result of a local authority not doing what it ought to have done, or not doing it properly.

In each case the question is: 'Is the local authority liable?' And in each case the answer is: 'It depends'. It depends whether the council owed the particular individual a duty of care to protect him or her from the loss or injury suffered - whatever that turns out to be.

When addressing the nature and scope of such a duty, the courts have to view the interests and expectations of the individual against the purpose of the particular statutory function the council is said to have fouled up. In this respect the trend seems to be against the individual. Mr Marcic's flooding sewers (AJ 8.1.04) and Sandhar v Department of Transport (Judgment 19.1.04) are cases in point.

In the second example, Mr Sandhar left his home near Bedford at 7am on a frosty December morning in 1996. He travelled by car at 45 miles an hour, for a mile and half, when he skidded on a patch of ice, lost control and hit a tree. He suffered fatal injuries and was dead when the police arrived.

They informed his wife, who took their three children to the hospital, on a route which went past the scene of the accident. On the way they saw the salting lorry travelling in the opposite direction.

Mrs Sandhar claimed that the local authority failed in its duty under section 41 of the Highways Act to maintain the road, which included, she said, keeping it free from ice.This duty is now enshrined in changes to the act. At the time, however, the position was not clear and the judge had to decide whether the authority owed such a duty at common law.

The judge heard evidence about the highway authority's arrangements for dealing with ice on the roads from its duty engineer, who took the decision not to order a salt run because, he said, the Met Office had advised him that the air was 'just too dry to cause ice'. Even when he received police reports, early that morning, he had not ordered a salt run on the B roads.

Had he done so, the lorries would have left two hours earlier, and in all probability the accident would not have happened.

The judge found that the engineer was 'deeply affected' by these events and that as a result, his ability to give reliable evidence was impaired.

Despite the failings, the judge held that the authority was not under a common-law duty to keep the road ice-free. Ice, he said, was a natural hazard. It was not the authority itself which caused the danger. Fog is an equivalent danger but the authority was not bound to do anything about that. A road user can see when frosty conditions exist and act accordingly. Identifying a risk, and having the power to do something about it, does not create a duty. Were such a duty to exist it would impose a heavy burden on the authority in terms of staffing, training and budgetary considerations.

This case is another example of how failings by public bodies do not necessarily give rise to private claims. As the sharpeyed among you would have spotted, had the deceased had a claim, he might have been partly to blame in any event, for driving in such conditions at 45mph.

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