Some take away’s from the Transport Committee: The roll-out and safety of smart motorways, HC 26 (Wednesday 30 June 2021)
Number 3
On Highways England’s “duty of care” or not:
Simon Jupp: Highways England’s barrister told an inquest earlier this year that the company has “no duty of care to motorists.” In my view, to be clear, that is frankly a ludicrous and indefensible statement. Are you concerned that the company responsible for our motorways does not have a formal duty of care to the motorists who use them?
Baroness Vere: Let’s just have a little think about that. Road safety is dependent on three things: roads, vehicles and the drivers themselves. It is what we call a safe system of road safety, and that is what we do.
Of course, Highways England has a laser-like focus on safety. … When we are talking about a legal duty of care, it is a legal term. It is not what you or I would think of as a duty of care, such as, “I care about that thing and I want to make it better.” A legal duty of care is something separate. That is why I cannot comment on that. There is an ongoing legal action, as you have just pointed out, Mr Jupp. That is why the QC made that comment, but it is a legalistic term rather than an operational term as to how Highways England actually does its job….
Chair (Huw Merriman): From a legal perspective, that would mean a responsibility.
Baroness Vere: That is my understanding of what it is.
Chair: But that barrister seemed to be saying that Highways England does not have the responsibility… I think perhaps we need to wait for the legal stuff to happen first. I would not want to do anything to prejudice that. I will point out that it is a very legal term. I cannot say any more…. It will be for the judgment to decide whether it indeed does or does not—
Baroness Vere: Yes, what does “duty of care” mean in law, rather than the care that you feel because it is in your KPIs and you do it every day?
For our readers, Wikipedia states on Duty of Care in English Law:
Whether a duty of care exists depends firstly on whether there is an analogous case in which the Courts have previously held there to exist (or not exist) a duty of care. Situations in which a duty of care have previously been held to exist include doctor and patient, manufacturer and consumer, and surveyor and mortgagor.[3] Accordingly, if there is an analogous case on duty of care, the court will simply apply that case to the facts of the new case without asking itself any normative questions.
If there is no similar case that the court will determine whether there is a duty of care by applying the three normative criteria the House of Lords as set out in Caparo Industries plc V Dickman. The criteria are as follows:
- Harm must be a “reasonably foreseeable” result of the defendant’s conduct;
- A relationship of “proximity” must exist between the defendant and the claimant;
- It must be “fair, just and reasonable” to impose liability.
Highways England’s licence to operate, April 2015, paragraph 4.2.e states:
- “Without prejudice to the general duties on the Licence holder under section 5 of the Infrastructure Act 2015, the Licence holder must, in exercising its functions and complying with its legal duties and other obligations, act in a manner which it considers best calculated to protect and improve the safety of the network.”