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

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    31. There is nothing in this reasoning to explain why the passage which Lord Woolf cited from the majority judgment in Stovin did not apply to section 39 of the 1988 Act. He simply says that he adopts the view of the minority in Stovin's case. Mr Wingate-Saul submitted that this was legitimate because the only real disagreement between majority and minority in Stovin was over the facts: the majority thought that the Council was immune from liability because it was exercising a discretion whereas the minority thought that there had been an operational failure. But that is not in my opinion a correct analysis of the decision. The majority 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 went no further than to leave open the possibility that there might somewhere be a statutory power or public duty which generated a common law duty and indulged in some speculation (which may have been ill-advised) about what that duty might be.

    32. Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide. For example, the majority reasoning in Stovin was applied in Capital & Counties plc v Hampshire County Council [1997] QB 1004 to fire authorities, which have a general public law duty to make provision for efficient fire-fighting services: see section 1 of the Fire Services Act 1947. The Court of Appeal held, in my view correctly, that this did not create a common law duty. Stuart-Smith LJ (giving the judgment of the Court of Appeal) said (at p 1030):

    "In our judgment the fire brigade are not under a common law duty to answer the call for help, and are not under a duty to take care to do so. If, therefore, they fail to turn up, or fail to turn up in time, because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable."

    33. The Court of Appeal in Larner's case went on to hold that on the facts there had been no breach of duty. But the consequences of the door which it left open can be seen in the present case. The Council was obliged to give discovery of documents relating to its accident studies undertaken pursuant to section 39(3)(a), the decision-making process by which it decided what measures in the light of such studies were appropriate and the steps which had been taken to implement such measures. It was heavily criticised by the judge for the lateness and insufficiency of such discovery. The trial lasted six days, during which the Council called a number of its officers as witnesses and was criticised for not calling enough. The simple facts which I have summarised at the beginning of this speech seem to have disappeared from view in the enthusiasm for a hostile judicial inquiry into the Council's administration. If section 39 continues to provoke investigations of this nature, much of the road safety budget will be consumed in the cost of litigation.

    34. Mr Wingate-Saul said that it did not matter that the danger would have been obvious to a reasonable driver. The duties imposed upon local authorities to promote road safety were imposed in the interests of careless as well as careful drivers. Indeed, he described Mrs Gorringe as "vulnerable" because she did not know the area and compared the case with Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360, in which the police conceded that they owed a duty of care to a prisoner to take reasonable care to prevent him from taking his own life.

    35. Of course it is in the public interest that local authorities should take steps to promote road safety. And it would also be unwise for them to assume that all drivers will take reasonable care for their own safety or that of others. If a driver kills or injures someone else by ignoring an obvious danger, it is little consolation to the victim or his family that the other driver was wholly to blame. And even if the careless driver kills or injures only himself, the accident may have a wider impact upon his family, his economic relationships and the burden on the public services. That is why section 39 of the 1988 Act is framed as a broad public duty. In this respect there is a parallel with the duty to house the homeless discussed in O'Rourke v Camden London Borough Council [1998] AC 188. But the public interest in promoting road safety by taking steps to reduce the likelihood that even careless drivers will have accidents does not require a private law duty to a careless driver or any other road user. Reeves v Commissioner of Police of the Metropolis was a highly exceptional case. If I may quote what I said in Tomlinson v Congleton Borough Council [2004] 1 AC 46, 85:

    "A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (British Railways Board v Herrington [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves (Reeves v Commissioner of Police [2000] 1 AC 360)."

    36. Nor does it follow that the council should be liable to compensate third parties whom careless drivers have injured. The drivers must take responsibility for the damage they cause and compulsory third party insurance is intended to ensure that they will be able to do so: compare Stovin v Wise at p 958.

37.

    Larner v Solihull Metropolitan Borough Council was binding on the Court of Appeal in this case and explains why Potter LJ felt obliged to hold that the council owed a duty of care to Mrs Gorringe and, on the judge's findings of fact, was in breach of that duty. But in my opinion Mr Peter Crawford QC, the judge in the Larner case, was right in holding that there was no duty of care. His decision on that point should not have been called into question by the Court of Appeal.

    38. My Lords, I must make it clear that this appeal is 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. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the National Health Service Act 1977, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430.

    39. Thus in Dorset Yacht Co v Home Office [1970] AC 1004 the House held that the statutory powers and discretions of the Home Office in connection with the rehabilitation of young offenders were not sufficient to exclude liability for a breach of their common law duty of care which arose from their bringing some young offenders to an island and leaving them unsupervised when it was reasonably foreseeable that they would cause damage if they tried to escape. In Barrett v Enfield London Borough Council [2001] 2 AC 550 the plaintiff claimed that when he was taken into care, the Council assumed parental responsibilities over him and so came under a duty of care in respect of the way he was treated. It was alleged that various acts and omissions had been in breach of this duty. The Council tried to get the claim struck out as disclosing no cause of action because it had been exercising wide statutory discretions. The House refused to strike out the action. The plaintiff did not rely upon a common law duty of care generated by the existence of statutory powers. It is true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so. It was that which the plaintiff alleged gave rise to the duty. The statutory powers and duties might have provided the council with defences in respect of its specific acts or omissions but that could not be decided without an investigation of the facts.

    40. Similarly in Phelps v Hillingdon Borough Council [2001] 2 AC 619 the local education authority employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties. The psychologist negligently failed to diagnose dyslexia and, as a result, the plaintiff left school with fewer skills than she would have learned if she had been diagnosed earlier. The council relied upon the fact that it had provided the psychologist pursuant to its public law duties which were not actionable in private law. But the House held that the duty of care did not depend upon the statute. It arose because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Heath Service. The fact that the doctor-patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence. The House decided that no such defence had been established.

    41. The well known dissent of Lord Atkin in East Suffolk Rivers Catchment Board v Kent [1941] AC 74, 88 was based upon a similar distinction. Lord Atkin in no way challenged the proposition of Lord Romer, speaking for the majority, that a statutory power could not in itself generate a common law duty of care. His view was that by going onto the land and commencing the work, the Catchment Board had done an act which created a common law duty to complete the work with reasonable despatch. The majority thought that this was insufficient. But I do not think that there is anything in Lord Atkin's dissent which calls into doubt the principle for which the East Suffolk case is regularly cited and which was applied by the majority in Stovin v Wise.

    42. An attempt to apply similar reasoning appears in the difficult case of Bird v Pearce [1979] RTR 369. The plaintiff was a passenger in a car on a major road which who was injured in a collision with a car which emerged from a minor road. The driver of the second car, who was agreed (as between the two cars) to be 90% responsible, joined the County Council (as highway authority) as a third party, alleging it had negligently removed and failed to repaint the warning lines which customarily indicated to drivers that they were entering upon a major road. The Court of Appeal held that by removing the lines, the council had created a hazard.

    43. The reasoning of the Court of Appeal appears to have been that by painting the lines in the first place, the council had created an expectation on the part of users of the main road that there would be lines to warn people on side roads that they were entering a major road. This may be a rather artificial assumption and I express no view about whether the case was correctly decided. But I would certainly accept the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation.

    44. My Lords, in this case the council is not alleged to have done anything to give rise to a duty of care. The complaint is that it did nothing. Section 39 is the sole ground upon which it is alleged to have had a common law duty to act. In my opinion the statute could not have created such a duty. The action must therefore fail. For these reasons and those of my noble and learned friends Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, I would dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

    45. This case has arisen out of a road traffic accident in which Mrs Denise Gorringe, the driver of one of the vehicles involved, was very severely injured. It is accepted that she was driving too fast for safety. The other vehicle was a bus. It is accepted that the bus driver was in no respect at fault. At the time of the accident the weather and visibility were good. The day was sunny and the road was dry. There was nothing the matter with the surface of the road.

    46. It is said, however, that the highway authority, Calderdale Metropolitan Borough Council, were at fault and must bear some responsibility and liability for the consequences of the accident. They were at fault because they had failed to place on or near the road sufficient signs giving warning to motorists that they were approaching a dangerous part of the road. Mrs Gorringe's case against the Council is put in two alternative ways. It is contended that the Council's failure to put in place the requisite signage constituted a breach of its duty under section 41(1) of the Highways Act 1980 "to maintain the highway". Alternatively it is contended that the failure constituted a breach of the Council's common law duty of care owed to Mrs Gorringe and all motorists driving on the stretch of road in question. In arguing for a common law duty of care of a standard sufficient to enable the failure to constitute a breach, reliance has been placed on section 39 of the Road Traffic Act 1988. Section 39 imposes a duty on every highway authority to prepare and carry out a programme of measures designed to promote and improve road safety.

    47. In summary, Mrs Gorringe's case is, first, that the absence of suitable road signage constituted a failure "to maintain" the road in such a condition as to be safe for use; and, secondly, that the Council's common law duty of care required it to put into effect safety measures that included the positioning of the road signs in order to discharge its section 39 duty. It is, I think, convenient at this point to set out and explain the effect of the relevant statutory provisions.

    48. Section 41(1) of the Highways Act 1980

Section 41(1) provides that—

    "The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty …. to maintain the highway."

Section 329(1), the definition section, says that—

    "'maintenance' includes repair, and 'maintain' and 'maintainable' are to be construed accordingly."

The 1980 Act was a consolidating Act and section 41(1) reproduced the terms of section 44(1) of the Highways Act 1959. The 1959 Act had contained the same definition of "maintenance" and "maintain" as is to be found in section 329(1) of the 1980 Act.

    49. The 1959 Act left unaltered the old common law rule that those responsible for the maintenance or repair of public highways could not be made liable in a civil action for damage caused by the condition of the highway if the condition was attributable merely to a failure to repair. The rule was, however, abolished by section 1(1) of the Highways (Miscellaneous Provisions) Act 1961 which said that—

    "The rule of law exempting the inhabitants at large and any other persons as their successors from liability for non-repair of highways is hereby abrogated."

But subsection (2) of section 1 provided a statutory defence to actions for damage caused by non-repair:

    "In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at public expense, it shall be a defence …. to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."

This statutory defence was reproduced in section 58(1) of the 1980 Act.

    50. It should be noted that these statutory provisions did not wholly abolish the old common law distinction between misfeasance and nonfeasance in relation to the condition of highways. What they did do was greatly to reduce the importance of the distinction. The common law immunity enjoyed by highway authorities and abolished by section 1(1) of the 1961 Act related only to liability for failure to repair a highway. Liability for damage arising otherwise than from the non-repair of a highway was not affected. An example of the distinction can be seen in Skilton v Epsom and Ewell Urban District Council [1937] 1 KB 112. A line of traffic studs had been placed in the centre of the highway. One of them had become loose. As a car passed over the loose stud it shot out and struck the plaintiff on her bicycle. She fell off and was injured. She sued the highway authority. The plaintiff succeeded at trial but the highway authority appealed on the ground that the plaintiff's complaint was of non-repair of the highway. The appeal failed. Slesser LJ said that

    "The question to be decided by the court is essentially this. Have the defendants caused a nuisance?"

He held that they had. Romer LJ agreed. He said

    "I think that the defendants have rightly been made liable for the damage caused to the plaintiff, and for this reason: they have done something on the highway not for the purpose of maintaining it as a highway but for some totally different purpose, and the act which they did had become at the time the injury was caused to the plaintiff a nuisance to the highway for which they were, in my opinion, properly made liable, notwithstanding the fact that they are also the highway authority."

    51. In a case, therefore, where the damage complained of has been caused not by a failure to maintain the highway but by something done by the highway authority, or for which the highway authority have become responsible (c/f Sedleigh-Denfield v O'Callaghan [1940] AC 880 and see section 130(3) of the 1980 Act), liability continued after 1961 as before, to be determined by the common law principles of negligence or, as the case may be, public nuisance. It is only where the alleged liability arises out of a failure "to maintain" the highway that the section 41(1) duty and the section 58(1) defence come into play.

    52. It is important, therefore, to keep in mind the fairly narrow scope of the section 41(1) duty. It has been authoritatively established by the unanimous decision of this House in Goodes v East Sussex County Council [2000] 1 WLR 1356, approving the minority view expressed by Lord Denning MR in Haydon v Kent County Council [1978] QB 343, that the duty "to maintain" is confined to a duty to repair and keep in repair. The case arose out of black ice on a highway. It was contended that the highway authority's failure to salt or grit the road was a failure "to maintain" it. The House held it was not. The duty "to maintain" was a duty limited to keeping the fabric of the road in such good repair as to render its physical condition safe for ordinary traffic and did not extend to preventing the formation of ice or removing an accumulation of snow. The decision has been reversed by section 111 of the Railways and Transport Safety Act 2003 which has added to section 41(1) a duty

    "to ensure, so far as reasonably practicable, that safe passage along a highway is not endangered by snow or ice."

But the limitations on the section 41(1) duty established by the Goodes case otherwise remain.

    53. Section 39 of the Road Traffic Act 1988

The section provides as follows:

    "(1)  The Secretary of State may, with the approval of the Treasury, provide for promoting road safety by disseminating information or advice relating to the use of roads.

    (2)  Each local authority must prepare and carry out a programme of measures designed to promote road safety and may make contributions towards the cost of measures for promoting road safety taken by other authorities or bodies.

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

    (a) must carry out studies into accidents arising out of the use of vehicles on roads or parts of roads, other than trunk 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, and (c) …."

    54. It is an essential plank in Mrs Gorringe's case that the Council were in breach of their duty under section 39. But it is accepted, and rightly, that section 39 cannot possibly be construed so as to justify the conclusion that a private action in damages can be brought for breach of the statutory duty. Mrs Gorringe's contention is that section 39 can nonetheless be used to jack up the Council's common law duty of care to a standard sufficient to enable the failure to provide suitable signage to constitute a breach of the duty.

    55. Sections 64 and 65 of the Road Traffic Regulation Act 1984

In view of the importance to Mrs Gorringe's case of the Council's failure to install the requisite warning signs it is relevant to notice some of the provisions of the 1984 Act relating to the installing of road signs.

    "64(1)    In this Act 'traffic sign' means any object or device …. for conveying, to traffic on roads …. warnings, information, requirements, restrictions or prohibitions of any description—

    (a) specified by regulations made by the Ministers acting jointly, or

    (b) authorised by the Secretary of State,

    and any line or mark on a road for so conveying such warnings, information, requirements, restrictions or prohibitions.

    (2)  Traffic signs shall be of the size, colour and type prescribed by regulations made as mentioned in subsection (1)(a) above

….

    (3)  ….

    (4)  Except as provided by this Act, no traffic sign shall be placed on or near a road except—

(a) …. (b) ….

    (c) a traffic sign placed on any land—

    (i) by a person authorised under the following provisions of this Act to place the sign on a road, and

    (ii) for a purpose for which he is authorised to place it on a road.

    …."

    "65(1)    The traffic authority may cause or permit traffic signs to be placed on or near a road, subject to and in conformity with such general directions as may be given by the Ministers acting jointly or such other directions as may be given by the Secretary of State."

    56. The signs that it is contended in the present case ought to have been installed by the Council, whether signs on posts at the side of the road or signs painted on the surface of the road, would be "traffic signs" as defined in section 64(1). The Council is the "traffic authority" for the purposes of section 65(1). There were, presumably, some "general directions" given under section 65(1) with which the signs contended for would have conformed, but no details of these are in your Lordships papers and none are referred to in the judgments of the courts below.

The Facts

    57. Mrs Gorringe's contentions raise issues of law but it is necessary before they can be properly considered to outline the facts that have given rise to them.

    58. The road where the accident took place is the B6113 at Barkisland in West Yorkshire. It had been, in earlier times, a minor rural road linking the villages of Barkisland and Greetland but, in modern times, has become a link road between the urban areas of Elland and Ripponden. The road serves also as a local link to the M62. It is on a bus route and well used by traffic. It runs in a south west/north east direction.

    59. The accident occurred on 15 July 1996. Mrs Gorringe was driving in a north-east direction. She reached a stretch of the road which is well described in paragraph 3 of the judgment of Potter LJ in the Court of Appeal [2002] RTR 446, 450-451. I need to do no more than provide a précis. A driver travelling in the direction Mrs Gorringe was travelling reaches a point where the road ahead slopes down for a short distance and then bends somewhat to the right and proceeds uphill to a crest. The crest is where the accident happened. Once at the bottom of the downslope the driver has no view of the road beyond the crest and will have no view of a vehicle approaching from the opposite direction until both his car and the approaching car are close to the crest. The need for care when approaching the crest, from whichever direction, would, or should, be obvious to the driver. The need for care is augmented by the fact that, at the crest, the road takes a slight left hand bend. The existence of this bend may not be apparent to a driver approaching the crest from the south west, as Mrs Gorringe was doing, until close to the crest. The crest presents a further hazard in that, at the apex, the change of gradient from uphill to downhill occurs over a distance of no more than twenty five metres. Unless a car is travelling at a speed well below 50 mph it is at risk of becoming momentarily airborne. The crest is known locally as "the Barkisland bump". A further potential danger arises from the width of the road at the crest. The road narrows slightly at the crest so that a wide vehicle, such as a bus, keeping well into the verge, will effectively occupy its entire side of the road.

    60. At the time of the accident a traffic warning sign was in place just after the bottom of the downslope. Coming from the south west, the sign was placed on the left hand verge of the road some 85 metres short of the crest. It consisted of the usual red-edged white triangle within which were two horizontal black bumps indicating "Uneven Road". The sign was visible to cars approaching from the southwest. There was no other warning sign in place. But at some time in the past, the late 1980s or early 1990s, at a point just before the commencement of the downslope and about 175 metres from the crest, there had been a white "SLOW" on the surface of the road. By the time of the accident this "SLOW" marking was no longer visible. Whether it had been removed by design, by wear or by inadvertence in the course of road repairs was not resolved by the evidence.

 
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