HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Gorringe (by her litigation friend June Elizabeth Todd) (FC) (Appellant) v. Calderdale Metropolitan Borough Council (Respondents)

[2004] UKHL 15

LORD STEYN

My Lords,

    1. In agreement with all members of the House I too am satisfied the Council did not owe Mrs Gorringe a duty of care to place a marking on the road or to erect a sign, warning motorists to slow down on approaching the crest of road where the accident happened. I am in agreement with the opinions of my noble and learned friends Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood on the reasons for this conclusion in respect of highways and on the proper construction of section 39 of the Road Traffic Act 1988 and section 41 of the Highways Act 1980. There is nothing that I can usefully add to their careful and detailed analysis about the legal position in regard to highways.

    2. There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called "the rule of public policy which has first claim on the loyalty of the law; that wrongs should be remedied": M (A Minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1995] 2 AC 633, at 663, per Sir Thomas Bingham MR. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise.

    3. In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923, Barrett v Enfield London Borough Council [2001] 2 AC 550; and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two enquiries will sometimes produce wrong results.

    4. The second point relates to observations of Lord Hoffmann in his landmark majority judgment in Stovin v Wise, supra, to which Lord Hoffmann has made reference in his opinion. In Stovin v Wise Lord Hoffmann observed (953D-E):

"In summary, therefore, I think that the minimum preconditions 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."

Since Stovin v Wise these observations have been qualified in Barrett and Phelps. I say that not because of the context of the actual decisions in those cases in Barrett a Council's duty to a child in care and in Phelps a duty of care in the educational field. Rather it is demonstrated by the legal analysis which prevailed in those decisions. In Barrett Lord Hutton observed (at 586C-G):

"I further consider that the decision of this House in Stovin v Wise [1996] AC 923 is not an authority which precludes a finding that there was a duty of care in this case, because Stovin v Wise was concerned solely with the omission by a highway authority to perform a statutory power, whereas in the present case the allegation of negligence relates to the manner in which the local authority exercised its statutory duty and powers.

In the Bedfordshire case [1995] 2 AC 633, 736F Lord Browne-Wilkinson said: 'For myself, I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence.' I am in agreement with this view and I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff's claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court's resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in the Takaro case [1988] AC 473, 501, a careful analysis and weighing of the relevant circumstances."

Lord Nolan and I expressly agreed with Lord Hutton's analysis. In substance a similar analysis was adopted by the House in Phelps: per Lord Slynn of Hadley, at 652H-653F.

    5. These qualifications of Stovin v Wise have been widely welcomed by academic lawyers. A notably careful and balanced analysis is that of Professor Paul Craig (Administrative Law, 2003, 4th ed, at 888-904). He stated (at 898):

"There are many instances where a public body exercises discretion, but where the choices thus made are suited to judicial resolution. The mere presence of some species of discretion does not entail the conclusion that the matter is thereby non-justiciable. In the United States, it was once argued that the very existence of discretion rendered the decision immune from negligence. As one court scathingly said of such an argument, there can be discretion even in the hammering of a nail. Discretionary judgments made by public bodies, which the courts feel able to assess, should not therefore preclude the existence of negligence liability. This does not mean that the presence of such discretion will be irrelevant to the determination of liability. It will be of relevance in deciding whether there has been a breach of the duty of care. It is for this reason that the decisions in Barrett and Phelps are to be welcomed. Their Lordships recognised that justiciable discretionary choices would be taken into account in deciding whether the defendant had acted in breach of the duty of care. There may also be cases where some allegations of negligence are thought to be non-justiciable, while others may be felt suited to judicial resolution in accordance with the normal rules on breach."

    6. I would dismiss the appeal.

LORD HOFFMANN

My Lords,

    7. On 15 July 1996, on a country road in Yorkshire, Mrs Denise Gorringe drove her car head-on into a bus. It was hidden behind a sharp crest in the road until just before she reached the top. When she first caught sight of it, a curve on the far side may have given her the impression that it was actually on her side of the road. At any rate, she slammed on the brakes and at 50 miles an hour the wheels locked and the car skidded into the path of the bus. Mrs Gorringe suffered brain injuries severely affecting various bodily functions including speech and movement.

    8. On the face of it, the accident was her own fault. It was certainly not the fault of the bus driver. He was driving with proper care when Mrs Gorringe skidded into him. But she claims in these proceedings that it was the fault of the local authority, the Calderdale Metropolitan Borough Council. She says that the council caused the accident by failing to give her proper warning of the danger involved in driving fast when you could not see what was coming. In particular, the Council should have painted the word "SLOW" on the road surface at some point before the crest. There had been such a marking in the past, but it disappeared, probably when the road was mended seven or eight years before.

    9. When the case was before the Court of Appeal [2002] RTR 446, Potter LJ said (at para 93) that it would have been "no more than a warning of the need to do that which should have been obvious to her in any event as she drove up from the dip." Nevertheless, he was willing to hold that the Council's omission to provide such a warning meant that the accident was partly its fault. The judge (Mr Roger Thorn QC, sitting as a deputy judge) had gone even further. He said that it was entirely the fault of the Council. In the absence of such a warning, Mrs Gorringe could not be blamed for driving too fast. But May LJ and Sir Murray Stuart-Smith disagreed. They said that the Council was not in breach of any duty to Mrs Gorringe and that she was entirely responsible. Her action was dismissed and she appeals to your Lordships' House.

    10. My Lords, the general rule is that even in the case of occupiers of land, there is no duty to give warning of obvious dangers: see the recent case of Tomlinson v Congleton Borough Council [2004] 1 AC 46. People must accept responsibility for their own actions and take the necessary care to avoid injuring themselves or others. And a highway authority is not of course the occupier of the highway and does not owe the common duty of care. Its duties (and those of its predecessors, the inhabitants of the parish) have for centuries been more narrowly defined, both by common law and statute.

    11. At common law it was the duty of the inhabitants of a parish to put and keep its highways in repair. A highway had to be, as Diplock LJ said in Burnside v Emerson [1968] 1 WLR 1490, 1496-1497—

"in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition."

    12. The inhabitants appointed a surveyor of highways to carry out this duty on their behalf and the expense was met by levying a rate. By various statutes culminating in the Highways Act 1959, the duty was transferred from the inhabitants to statutory highway authorities. It is now contained in section 41(1) of the Highways Act 1980: a highway authority is "under a duty … to maintain the highway". But the common law duty to repair was the only duty of the inhabitants. In all other respects the public had to take the highway as they found it. Furthermore, the duty of the inhabitants was a public duty which was enforceable only by a prosecution on indictment. It could not be relied upon by an individual to found a claim for damages. I expect it was thought burdensome enough for the inhabitants to have to pay the highway rate. There was no reason why they should have also to pay damages for injuries caused by the deficiencies of the surveyor in carrying out repairs. The users of the highway were expected to look after themselves.

    13. This remained the law when the duty was transferred to highway authorities. An individual who had suffered damage because of some positive act which the authority had done to make the highway more dangerous could sue for negligence or public nuisance in the same way as he could sue anyone else. The highway authority had no exemption from ordinary liability in tort. But the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual. Thus it was said that highway authorities were liable in tort for misfeasance but not for non-feasance. Sometimes it was said that the highway authority was "exempt" from liability for non-feasance, but it was not truly an exemption in the sense that the authority had a special defence against liability. The true position was that no one had ever been liable in private law for non-repair of a highway. But all this was changed by section 1(1) of the Highways (Miscellaneous Provisions) Act 1961. The public duty to keep the highway in repair was converted into a statutory duty owed by the highway authority to all users of the highway, giving a remedy in damages for its breach.

    14. The new private law duty was however limited to the obligation which had previously rested upon the inhabitants at large, namely, to put and keep the highway in repair. As Lord Denning MR explained in Haydon v Kent County Council [1978] QB 343, that remains the meaning of "maintain the highway" in section 41 of the 1980 Act today. In Goodes v East Sussex County Council [2000] 1 WLR 1356 this House decided that the duty therefore did not require the highway authority to remove ice or snow from the road. The presence of ice and snow did not mean that the highway was out of repair. Removing ice and snow was a different kind of obligation which could be imposed on highway authorities only by Parliament. It has since been added to the repairing duty by section 111 of the Railways and Transport Safety Act 2003.

    15. The judge decided that, in the absence of a suitable warning painted on the road or carried on a sign, the highway was out of repair. The Court of Appeal unanimously disagreed and I have little to add to their reasons. The provision of information, whether by street furniture or painted signs, is quite different from keeping the highway in repair. In Lavis v Kent County Council (1992) 90 LGR 416, 418 Steyn LJ said in response to a similar submission that section 41 required an authority to erect a warning sign:

"In my judgment it is perfectly clear that the duty imposed is not capable of covering the erection of traffic signs, and nothing more need be said about that particular provision".

    16. This observation may be said to be short and to the point but I doubt whether, in the light of the judgment of Lord Denning MR in Haydon's case, there is a great deal more to say. At any rate, I agree with it.

    17. The alternative claim is for common law negligence. Mr Wingate-Saul QC, who appeared for Mrs Gorringe, accepts that in the absence of the statutory provision to which I shall shortly refer, such a claim would be hopeless. If the highway authority at common law owed no duty other than to keep the road in repair and even that duty was not actionable in private law, it is impossible to contend that it owes a common law duty to erect warning signs on the road. It is not sufficient that it might reasonably have foreseen that in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it. The law does recognise such duties in special circumstances: see, for example, Goldman v Hargrave [1967] 1 AC 645 on the positive duties of adjoining landowners to prevent fire or harmful matter from crossing the boundary. But the imposition of such a liability upon a highway authority through the law of negligence would be inconsistent with the well established rules which have always limited its liability at common law.

    18. Accepting this as the general position, Mr Wingate-Saul submits that a common law duty has been created by (or "in parallel" with) section 39(2) and (3) of the Road Traffic Act 1988:

"(2)  Each local authority must prepare and carry out a programme of measures designed to promote road safety. …

(3)  Without prejudice to the generality of sub-section (2) above, in pursuance of their duty under that sub-section each local authority -

(a) must carry out studies into accidents arising out of the use of vehicles on roads…within their area,

(b) must, in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents, including the dissemination of information and advice relating to the use of roads, the giving of practical training to road users or any class or description of road users, the construction, improvement, maintenance or repair of roads for which they are the highway authority…and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on roads…"

    19. These provisions, with their repeated use of the word "must", impose statutory duties. But they are typical public law duties expressed in the widest and most general terms: compare section 1(1) of the National Health Service Act 1977: "It is the Secretary of State's duty to continue the promotion…of a comprehensive health service … ". No one suggests that such duties are enforceable by a private individual in an action for breach of statutory duty. They are enforceable, so far as they are justiciable at all, only in proceedings for judicial review.

    20. Nevertheless, Mr Wingate-Saul submits that section 39 casts a common law shadow and creates a duty to users of the highway to take reasonable steps to carry out the necessary studies and take the appropriate measures. At any rate, their conduct in compliance with these duties must not be such as can be described as "wholly unreasonable". The judge found that it was unreasonable for the council not to have painted a warning sign on the road and Potter LJ thought that he was entitled to come to this conclusion.

    21. The effect of statutory powers and duties on the common law liability of a highway authority was considered by this House in Stovin v Wise [1996] AC 923. Mrs Wise emerged from a side road and ran down Mr Stovin because she was not keeping a proper look-out. When he sued her for damages, she (or rather her insurance company) joined the Norfolk County Council as a third party because the visibility at the intersection was poor and they said that the council should have done something to improve it. The council had statutory powers which would have enabled the necessary work to be done and there was evidence that the relevant officers had decided in principle that it should be done, but they had not got round to doing it.

    22. The decision of the majority was that the council owed no private law duty to road users to do anything to improve the visibility at the intersection. "Drivers of vehicles must take the highway network as they find it." (At p. 958). The statutory power could not be converted into a common law duty. I pointed out in my speech that the council had done nothing which, apart from statute, would have attracted a common law duty of care. It had done nothing at all. The only basis on which it was a candidate for liability was that Parliament had entrusted it with general responsibility for the highways and given it the power to improve them and take other measures for the safety of their users.

    23. Since the existence of these statutory powers is the only basis upon which a common law duty was claimed to exist, it seemed to me relevant to ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If a statute actually imposes a duty, it is well settled that the question of whether it was intended to give rise to a private right of action depends upon the construction of the statute: see Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, 159, 168-171. If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care.

    24. For example, in O'Rourke v Camden London Borough Council [1998] AC 188 a homeless person sued for damages on the ground that the council had failed in its statutory duty to provide him with accommodation. The action was struck out on the ground that the statute did not create a private law right of action. In a speech with which all other members of the House concurred, I said (at p. 193):

"the [Housing] Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done."

    25. In the absence of a right to sue for breach of the statutory duty itself, it would in my opinion have been absurd to hold that the council was nevertheless under a common law duty to take reasonable care to provide accommodation for homeless persons whom it could reasonably foresee would otherwise be reduced to sleeping rough. (Compare Stovin v Wise at pp 952-953.) And the argument would in my opinion have been even weaker if the council, instead of being under a duty to provide accommodation, merely had a power to do so.

    26. This was the reasoning by which the majority in Stovin v Wise came to the conclusion that the council owed no duty to road users which could in any circumstances have required it to improve the intersection. But misunderstanding seems to have arisen because the majority judgment goes on to discuss, in the alternative, what the nature of such a duty might have been if there had been one. It suggests that it would have given rise to liability only if it would have been irrational in a public law sense not to exercise the statutory power to do the work. And it deals with this alternative argument by concluding that, on the facts, there had been no breach even of such a duty. The suggestion that there might exceptionally be a case in which a breach of a public law duty could found a private law right of action has proved controversial and it may have been ill-advised to speculate upon such matters.

    27. The approach of the minority, in a speech by Lord Nicholls of Birkenhead, was very different. He thought that the statutory powers had invested the highway authority with general responsibilities which could in appropriate circumstances give rise to a common law duty of care. He referred to a number of circumstances which might singly or cumulatively justify the existence of a duty and he said that on the facts there had been such a duty and that the council had been in breach.

    Stovin v Wise was considered by the Court of Appeal in Larner v Solihull Metropolitan Borough Council [2001] RTR 469. Mrs Larner was injured in a collision when she failed to give way on entering a major road at a junction. She had passed two "Give Way" signs but sued the highway authority on the ground that its duties under section 39 of the 1988 Act required additional warning to be given. The Recorder of Birmingham, Judge Crawford QC, dismissed the action on a number of grounds. The foremost was that section 39 neither gave rise to an action for breach of statutory duty nor generated a duty of care. He also held that there had been no breach of any duty which might conceivably exist and that if there had been, it would not have been the cause of the accident.

    29. Mrs Larner appealed to the Court of Appeal (Lord Woolf CJ, Judge and Robert Walker LJJ). Lord Woolf described the duty under section 39 as a "target duty" which did no more than "require the council to exercise its powers in the manner that it considers is appropriate". Lord Woolf cited a passage from my speech in Stovin v Wise (at pp 473-474) in which I said (at pp 952-953):

"If [a statutory] duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care."

    30. He then said (at p 475):

"However, so far as section 39 of the 1988 Act is concerned, we would accept that there can be circumstances of an exceptional nature where a common law liability can arise. For that to happen, it would have to be shown that the default of the authority falls outside the ambit of discretion given to the authority by the section. This would happen if an authority acted wholly unreasonably…As long as any common law duty is confined in this way, there are no policy reasons which are sufficient to exclude the duty. An authority could rely on lack of resources for not taking action and then it would not be in breach…These difficulties in the way of claimants mean that the existence of the residual common law duty should not give rise to a flood of litigation. On the other hand for the desirability of a duty in the exceptional case we adopt the reasons of Lord Nicholls of Birkenhead in Stovin."