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Gorringe v Calderdale Metropolitan Borough Council, House of Lords, 1 April 2004

6 April 2004
The issues

Highways – Re-Painting Road Markings – Section 39 Road Traffic Act 1988

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 Court of Appeal allowed the Defendant’s Appeal, finding that there was no breach of Section 41 in respect of the failure to erect traffic signs warning of a bend; and that there was no breach of duty associated with Section 39 of the Road Traffic Act. The Claimant appealed.

The decision

1. As to the issue of whether a failure to sign amounted to a breach of the duty to maintain the highway under Section 41(i) of the Highways Act 1980; even in the case of occupiers of land, there was no duty to give warning of obvious dangers – see Tomlinson -v- Congleton Borough Council. People had to accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others. The Highway Authority was not an occupier of the highway and did not owe the common duty of care. Its duties were limited in respect of maintenance to Section 41 of the Highways Act 1980 as amended by Section 111 of the Railways and Transport Safety Act 2003. The duty was limited to the obligation to put and keep the highway in repair. It was not the case that the absence of a suitable warning painted on the road or carried on a sign meant that the highway was out of repair. The provision of information, whether by street furniture or painted signs was quite different from keeping the highway in repair. Accordingly, the Highway Authority was not in breach of Section 41.

2. As to the alternative claim for common law negligence; the Claimant submitted that a common law duty was created by or ran in parallel with Section 39 of the Road Traffic Act 1988, (whereby each Local Authority had to prepare and carry out a programme of measures designed to promote road safety, including the carrying out of studies into accidents arising on roads within their area and taking such measures in the light of those studies to prevent or minimise such accidents). In Stovin -v- Wise, the majority of the House of Lords decided that the Council owed no private law duty to road users to do anything to improve visibility at the intersection at which Mrs Wise and Mr Stovin had their accident. The Council had statutory powers, which would have enabled the necessary work to be done, but the statutory powers could not be converted into a common law duty. Stovin -v- Wise may have been a decision that had come to be misunderstood because of the ill-advised speculation of the majority of the Judicial Committee that there might be exceptional cases in which a breach of public law duty could find a private law right of action, for example if it would have been irrational in a public law sense not to have exercised the statutory power to do the work. This point had been taken up by the Court of Appeal in Larner -v- Solihull Metropolitan Borough Council in which Lord Woolf had suggested that there might be circumstances of an exceptional nature where a common law liability could arise under Section 39, namely where it could be shown that the default of the authority fell outside the ambit of discretion given to the Authority by the Section – in other words if an Authority acted wholly unreasonably. This was not a correct application of Stovin. In Stovin, the majority had rejected the argument that the existence of the statutory power to make improvements to the highway could in itself give rise to a common law duty to take reasonable care to exercise the power or even not to be irrational in failing to do so. It merely left open the possibility that there might somewhere be a statutory power or public duty, which generated a common law duty. Lord Hoffman noted that he found it difficult to imagine a case in which a common law duty could be founded simply upon a failure, however irrational to provide some benefit, which a public authority had power or a public law duty to provide. Lord Hoffman further went on to note that in this case the House of Lords was concerned only with an attempt to impose upon a Local Authority, a common law duty to act based solely on the existence of a broad public law duty. It was not concerned with cases in which public authorities had actually done acts or entered into relationships or undertaken responsibilities, which gave rise to a common law duty of care. Thus, if a highway authority conducted itself so as to create a reasonable expectation about the state of the highway, it would be under a duty to ensure that it did not thereby create a trap for the careful motorist who drives in reliance upon such an expectation.

3. Lord Roger, Lord Brown and Lord Scott all delivered concurring Judgments. Lord Scott noted “the enticing door left ajar by Lord Woolf’s reference [in Larner] to circumstances of an exceptional nature where a common law liability can arise ought in my opinion, in the interest of litigants generally, to be firmly shut.

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