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Larner v Solihull Metropolitan Borough Council

8 February 2001
The issues

Exercise Of Statutory Duty To Promote Road Safety – Discretion

The facts

The Claimant had been involved in a road traffic accident in March 1992 when driving across the junction of two roads. The Claimant had passed two give way signs situated at each side of the mouth of the junction. The Claimant alleged the Council should have provided additional advance warning to that provided of the fact that he was required to give way to traffic. At first instance the Judge concluded that the Council owed no duty to the Claimant either under statute or common law and if the Council had owed a duty, the duty had not been breached.

The decision

The Claimant’s case on appeal was confined to the contention that a common law duty of care should be superimposed upon the statutory duty under Section 39 of the Road Traffic Act 1988.

Section 39 was couched in mandatory terms that left a considerable degree of discretion to the local authority.

It did not identify the intervals at which the programme of measures designed to promote road safety had to be prepared or carried out or the frequency of the programmes.

The duty was no more than a target duty since it did no more than require the Council to exercise its powers in the manners it considered appropriate. As far as Section 39 was concerned there might be circumstances of an exceptional nature where a common law liability could arise. It would be necessary to show that the default of the authority fell outside the ambit of discretion given to the authority by deception. In other words the authority would have had to have acted wholly unreasonably. Absent that scale of behaviour, the Council would owe no duty of care pursuant to a common law duty running in parallel with or superimposed upon the provisions of Section 39.

There was no policy reason for excluding the duty. All that would be required to avoid liability for the failure to take measures was to establish that measures were rationally not considered to be appropriate.

Appeal dismissed.

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