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Gorringe v Calderdale Metropolitan Borough Council, Court of Appeal

15 May 2002
The issues

Highways – re-painting road markings.

The facts

The Claimant had an RTA when her car skidded onto the opposite side of the road hitting a bus coming in the other direction. The layout of the land over which the road passed was such that because of a dip, the driver’s view was obscured and in particular, it was easy to miss the fact that there was a sharp left hand bend approaching. On reaching the crest beyond the dip, the layout of the land was such that it was possible not to see that there was also a sudden change in gradient from one side of it to the other and that at the top of the crest, the camber of the roadway was adverse to a vehicle travelling in the direction taken by the Claimant. There was an uneven road triangular hazard warning road sign between the dip and the crest. Once upon a time there had also been a “slow” road marking in white. That had however faded and or been resurfaced over and was no longer visible. The Council accepted that it was aware of the nature of the layout of the road but denied that it was a known danger or an accident black spot. The Judge found that the failure to re-paint was a breach of the Council’s duty to maintain under Section 41 Highways Act 1980 and that a visible road marking would have caused the Claimant to slow and therefore not to have the accident. Moreover, he also found the Council to have been aware of the obvious danger represented by the road and that its failure to do anything about that danger caused it to be in breach of its common law duty which the Judge tacked on to Section 39 of the Road Traffic Act 1988 (Section 39 provides that a Highway Authority must carry out studies into accidents occurring on roads within their area and that must in the light of this take measures as appear to the Authority to be appropriate to prevent accidents, including dissemination of information and advice, training to road users, maintenance and repair and improvement of roads).

The Defendant Council appealed.

The decision

1. The Judge’s finding as to a breach of Section 41 could not be upheld following Goodes -v- East Sussex County Council and Lavis -v- Kent County Council (failure to erect traffic signs warning of a bend in the road not within Section 41 Highways Act). A road marking was not part of the physical or structural condition of the highway. It therefore lay outside the Council’s duty to maintain.

2. The Judge was wrong to find that the Council was in breach of a duty associated with Section 39. In dismissing the Section 39 point, the Court of Appeal relied upon and considered Larner -v- Solihull Metropolitan Borough Council in which the Court accepted that Sections 39 (ii) and (iii) were unspecific and described no more than a target duty. Lord Woolf in Larner commented “we would accept that there can be circumstances of an exceptional nature where a common law liability can arise” within Section 39. “For that to happen, it would have to be shown that the default of the Authority falls outside the ambit of discretion given the Authority by the Section. This would happen if an authority acted wholly unreasonably”. Unless that “scale of behaviour” can be brought into play, there would be no parallel duty in common law running alongside Section 39.

Lord Woolf went on to accept that the measurement of the nature of an exceptional case could be assisted by reliance upon Stovin -v- Wise, ie that it would be fair and reasonable to impose upon a Highway Authority aware of a danger a common law duty to act as a reasonable Authority would act in the circumstances towards road users exposed to that danger. Lord Nicholls, it should be noted, reserved his view on what the position would be if the Authority did not know but ought to have known the existence of a danger.

3. May LJ quoted Lord Hoffman in Stovin “Lord Hoffman considered that the minimum pre-conditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first that it would in the circumstances have been irrational not to have exercised the power so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised”.

4. May LJ emphasised relying on Lord Hoffman “that it is not sufficient to show that the Council gave the relevant question inadequate consideration. It is necessary also to show that, had proper consideration been given, it would have been irrational to decide not to take the measures”. The Judge below had given no consideration to these points. Specifically, he had not considered whether if the Council had properly considered the matter it would have been irrational for them to decide not to put up a slow sign which was the basis of his finding on liability.

5. There was nothing in the evidence that should have led the Council to appreciate that the road conditions presented such a clear, obvious danger.

6. A report had been commissioned by the Local Authority (which they had then lost) “in the Defendant’s bureaucracy” showing that the accident rate for the part of the road in question was twice as high as might be expected; that remedial measures might include resurfacing, comprehensive signing and a double white line system where appropriate. None of these works were referred to as being “emergency”. It had not concluded that it was an accident black spot. Since the report in 1994 no relevant accident had occurred. Under these circumstances, May LJ came to the view that it would not have been irrational to decide not to carry out individual measures to that site in preference to others in advance of any centrally funded general improvement.

7. Sir Murrray Stuart-Smith agreed – quoting Lord Hoffman in Stovin -v- Wise “this is a timely reminder that the Courts should be slow to impose liability on the Highway Authority who have competing claims on their budget”. Also, “Lord Hoffman’s Judgment is also a timely reminder that the Courts should not strive to hold the Highway Authority liable, when it is quite clear that the driver was at fault”. He considered that a common law duty under Section 39 might arise where a Highway Authority altogether failed to carry out studies into accidents and it could have been shown that had they done so, the site in question would have been identified as a black spot or alternatively a duty might have arisen if having carried out studies and identified the site as a top priority, they had for no justifiable reason, failed to do anything about it.

8. That there would have been a finding of 50% contributory negligence in any event.

Appeal allowed.

Comments

It is worth noting that Potter LJ dissented on the facts (not the law) as to the Section 39 point. He considered that the Council’s failure to have any adequate or rational policy in respect of long term improvements of stretches of road and the absence of consideration in the interim of the short term alleviation of obvious dangers by signage (the fact that the slow sign which had been considered necessary had now been eradicated and that nothing had been done about it) was sufficient to allow the Judge to come to his finding that the Council’s behaviour had amounted to a wholly unreasonable failure to act within Larner

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