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

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    61. The circumstances of the accident were these. Mrs Gorringe, whose two young daughters were passengers in the car, was just short of the crest when she slammed on her brakes. The severity of her injuries caused by the accident has prevented her from being able to give any account of the accident but it was surmised by the trial judge that she may suddenly have seen the top of the bus approaching from the opposite direction and, because it was negotiating the bend on the far side of the crest, she may have thought, mistakenly, that the bus was on her side of the road. The surmise seems a plausible one but, whatever the reason, it is clear from the evidence that Mrs Gorringe applied her brakes very sharply just as she was approaching the crest; the front wheels of her car locked, she was unable to steer the car and it skidded across the road into the side of the bus. The bus driver must have had a second or so to take evasive action because he was able to bring the bus virtually to a halt with its near side wheels on the grass verge when the collision took place.

    62. It has been estimated that Mrs Gorringe was travelling at about 50 mph at the time she put on her brakes. Although her speed was well within the 60 mph speed limit for the road, it was an excessive speed for safe driving having regard to the geography of the road where the accident took place.

    63. Considerable time was taken at the trial in investigating the steps that the Council had taken in the years and months prior to the accident in pursuance of its duty under section 39 of the 1988 Act. Details of the evidence about this are set out in the judgment of Potter LJ, paragraphs 17 to 27, and in the judgment of May LJ at paragraphs 119 to 128. It is not necessary for me to repeat these details and it suffices, I think, for me to note that, per Potter LJ, at para 89—

    "…. the judge justifiably found that, while there was an adequate and rational policy in respect of the long-term improvement of stretches of road, there was a total absence of any policy, and indeed no consideration had been given, in respect of measures for the short-term alleviation of obvious dangers by inexpensive signage on an interim basis pending long-term road improvement measures."

but that, per May LJ, at paragraph 128—

    "…. the site in question …. was not, in the light of accident studies either before or after the claimant's accident, an accident blackspot according to recognised criteria …. The 1994 [Local Authority Consultancy] report had not concluded that this was an accident blackspot and no relevant accident had occurred there since the report …."

    64. I can now turn to consider the two issues:

The section 41 issue

The duty to maintain the highway extends, it is argued, beyond the surface of the highway itself and applies also to all and any structures, ancillary to the use of the highway, which have been placed, or ought to be placed, on the verges or on pavements bordering the highway. So stated, the section 41(1) duty to maintain would cover the installation and maintenance of road signs, traffic lights, pedestrian crossing signs and perhaps, even street lights (but see Sheppard v Glossop Corporation [1921] 3 KB 132).

    65. In my opinion, this argument cannot be accepted. It confuses the section 41(1) duty to maintain the highway and the liability that may, post 1961, arise from a failure to do so, with the common law liability that might arise from acts done on or around the highway that have created a source of danger to users of the highway. In Bird v Pearce [1979] RTR 369 the highway authority, in order to give priority of passage to vehicles on a major road, provided warning signs at the junctions of all minor roads with the major road. The warnings consisted of the usual double white lines. In the course of road repairs the warning lines were temporarily obliterated and no substitute warnings were provided. An accident was caused by a driver emerging from a minor road into the major road. The question was whether the highway authority could be made liable in negligence for the accident. The Court of Appeal held that it could. The respondent in the present case naturally prays the decision in aid. But the basis of the Court of Appeal's decision was that the highway authority, in temporarily obliterating the white lines, had created a potential source of danger that had not existed before it had placed white lines upon the road in the first place per Eveleigh LJ at page 375—

    "Up to that moment drivers had no justification for relying upon anything other than their own appreciation of the road situation. Once the authority in the exercise of its power created a pattern of traffic flow, drivers could be expected to rely in some degree upon it."

Brandon LJ expressed agreement with Eveleigh LJ's reasoning (see page 377) and Megaw LJ adopted similar reasoning:

    "It was reasonable to foresee that traffic …. would be likely to become accustomed to the priority of the Bruton road at all such junctions and the fact that drivers, at any rate those who were familiar with the road, would, reasonably, be likely to drive on the assumption, not only of the priority, but of the fact that it was made known to drivers on the side roads by the presence of the appropriate warnings signs."

    66. There are, I think, some difficulties in applying this reasoning so as to justify the result of the case, but the principle that a highway authority may be liable if it introduces a new danger to the road is plainly unexceptionable and the case provides no assistance to Mrs Gorringe.

    67. Moreover, there is authority that stands in the way of regarding the installation of road signage as done pursuant to the duty to maintain the road. In Skilton v Epsom and Ewell UDC, to which I have already referred, the Court of Appeal declined to regard the placing of the studs in the centre of the road, or the repair of the stud that had become loose, as part of the "maintenance" of the road. Slesser LJ said, at page 120, that:

    "…. it would be wrong …. to hold that the insertion of the studs into the road under the powers given to the local authority can in any way be said to be an act connected with the maintenance or the repair of the highway as such. To explain why I come to that conclusion it is necessary to look at the Road Traffic Act 1930 which enables the local authority to insert the traffic signs, as they are called, or place them on the highway."

The provisions of the Road Traffic Act to which the Lord Justice was referring were the predecessors of sections 64 and 65 of the Road Traffic Act 1984.

    68. In Goodes v East Sussex County Council this House expressly rejected the argument that the 1961 Act had enlarged the scope of the duty to maintain into a duty to take reasonable care to secure that the highway was not dangerous to traffic (per Lord Hoffmann at p 1362) and held that the duty to maintain was no more than a duty to repair and keep in repair.

    69. In my opinion, therefore, and in agreement with all three members of the Court of Appeal, the appellant's case, in so far as it is based on a breach of section 41(1) of the 1980 Act must fail. The accident was not caused by any defect in the state of repair of the road or by any failure of the Council "to maintain" the road.

    70. The section 39 issue

Mr Wingate-Saul QC, counsel for Mrs Gorringe, accepts that a breach of section 39 cannot lead to an award of damages for breach of statutory duty. He accepts, also, that if section 39 had never been enacted, a claim against the Council for common law damages in negligence would fail. This is because, vis à vis the Council, Mrs Gorringe's complaints are simply of a failure to provide signage warning motorists of the dangers ahead. The case cannot be brought, and is not brought, as one in which the accident is attributable to a new source of danger negligently introduced by the Council. It cannot be put on Bird v Pearce lines. But these two concessions by Mr Wingate-Saul, both rightly made, lead to an incongruity that, in my opinion, is fatal to his case. The reason why damages in a private action for breach of the statutory duty imposed by section 39 cannot be recovered is because section 39, correctly construed, does not impose a duty owed to any individual. It imposes a duty owed to the public as a whole. It forms part of the corpus of public law, not private law, and can only be enforced by the procedures and remedies available for enforcing public law duties. All of this is, I believe, common ground. But, if that is so, how can section 39 contribute to the creation of a standard of care that, in the absence of section 39, the common law would not impose? The notion that it might do so derives, I think, from remarks about section 39 made by Lord Woolf CJ in his judgment in Larner v Solihull Metropolitan Borough Council [2001] RTR 469. The remarks were largely based upon the minority opinion that had been given by my noble and learned friend Lord Nicholls of Birkenhead in Stovin v Wise [1996] AC 923, a case in which the majority opinion was given by my noble and learned friend, Lord Hoffmann.

71.

    Stovin v Wise was a case where a highway authority had failed to exercise a statutory power which, if it had been exercised, would or might have prevented the road accident from happening. Lord Hoffmann pointed out, at page 952, that the question whether a statutory duty can give rise to a private cause of action is a question of construction of the statute. It requires, he said, an examination of the policy of the statute in order to decide whether it was intended to confer a right to compensation for breach. He went on—

    "Whether it can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision."

Then, after citing a passage from the opinion given by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Lord Hoffmann continued with the passage cited in paragraph 30 of his opinion in this present appeal. I respectfully agree with these passages from his judgment in Stovin v Wise. Indeed, I would be inclined to go further. In my opinion, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. I would respectfully accept Lord Browne-Wilkinson's comment in X (Minors) v Bedfordshire County Council at page 739 that

    "the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done."

But that comment cannot be applied to a case where the defendant has done nothing at all to create the duty of care and all that is relied on to create it is the existence of the statutory duty. In short, I do not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals.

    72. In Larner v Solihull MBC, a case, like the present, about the responsibility of a council for placing warning signs on the highway, Lord Woolf CJ said, at page 475—

    "…. 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."

I am, with respect, unable to agree. The common law liability contemplated could not, in my opinion, ever arise from a breach of section 39 except in circumstances where the liability would have arisen independently of the section 39 duty. I have already cited the section. Both subsection (2) and subsection (3) impose duties. The subsection (2) duty is a duty to prepare and carry out measures designed to promote road safety. Suppose a Council does absolutely nothing and is in flagrant breach of its subsection (2) duty. How could that omission ever lead to a common law liability for failure to take some specific road safety step? The statutory duty is an entirely general one. It imposes a "target" duty and no more than that. It cannot be read as intending to create specific duties owed to individuals. The subsection (3) duties are more specific but, still, are only target duties. The statutory policy was that highway authorities should devise and implement road safety measures. The policy was not that private individuals should be able to bring private actions for damages for their failure to do so.

    73. There are, of course, many situations in which a public authority with public duties has a relationship with a member of the public that justifies imposing on the public authority a private law duty of care towards that person. And the steps required to be taken to discharge that private law duty of care may be steps comprehended within the public duties. Barrett v Enfield Borough Council [2001] 2 AC 550 and Phelps v Hillingdon Borough Council [2001] 2 AC 619 are examples. But the Council in the present case had no relationship with Mrs Gorringe that it did not have with every other motorist driving on the stretch of road in question.

    74. Quite apart from the objections of principle which, in my opinion, ought to be held to bar the creation of common law liability out of statutory duties such as those in section 39, the history of this case provides a very salutary example of the undesirability of opening the door to the possibility of the creation of such liability. A tragic but simple road traffic accident, the cause of which was that Mrs Gorringe, driving too fast for the road, made a driving error, has led to a lengthy trial involving an extensive (and expensive) trawl through Council documents going back many years in order to enable her to try and establish a breach by the Council of its section 39 duties of sufficient seriousness to bring the case into Lord Woolf's "circumstances of an exceptional nature" category and to justify categorising the Council's failure to provide warning signs as wholly unreasonable.

    75. In Larner itself common law liability was not established. In the present case common law liability was found at trial but was rejected by the Court of Appeal and ought, in my opinion, to be rejected by your Lordships. The enticing door left ajar by Lord Woolf's reference to "circumstances of an exceptional nature where a common law liability [based on a breach of section 39] can arise" ought in my opinion, in the interests of litigants generally, to be firmly shut.

    76. In summary, if a highway authority is in breach of its duty under section 41(1) (as amended in 2003) it can be sued if damage is thereby caused. If it is to escape liability it must bring itself within the section 58 defence. In addition, a highway authority may be liable at common law for damage attributable to dangers that it has introduced, or, in the case of dangers introduced by some third party, that it has unreasonably failed to abate. Members of the public who drive cars on the highways of this country are entitled to expect that the highways will be kept properly in repair. They are entitled to complain if damage is caused by some obstruction or condition of the road or its surroundings that constitutes a public nuisance. And they are, of course, entitled to complain if they suffer damage by the negligence of some other user of the highway. But an overriding imperative is that those who drive on public highways do so in a manner and at a speed that is safe having regard to such matters as the nature of the road, the weather conditions and the traffic conditions. Drivers are first and foremost themselves responsible for their own safety.

    77. I would for these reasons, as well as those given by my noble and learned friends Lord Hoffmann, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, dismiss this appeal.

LORD RODGER OF EARLSFERRY

My Lords,

    78. The appellant, Mrs Gorringe, sustained appalling injuries when the car she was driving at about 50 mph collided with a bus at the crest of a rise on a country road in Yorkshire. She claims damages for her injuries from Calderdale Metropolitan Borough Council, but in order to succeed she must establish that they resulted from a breach of a common law duty of care that the Council owed to her. What she alleges is that the Council failed in the duty, which she claims they were under, to repaint a Slow sign on the surface of the road where it dipped down before rising to the crest where the accident happened.

    79. Her counsel, Mr Wingate-Saul QC, began by accepting that, in the absence of section 39 of the Road Traffic Act 1988, the Council would have owed no duty of care to Mrs Gorringe at common law to place any sign warning her of any dangers presented by the crest in the road where she met her accident. The concession was correct, but it is worth exploring just why that is so.

    80. From early times various statutes placed the responsibility for repairing highways on to the inhabitants of parishes. Their duty was to put the road into such repair as to be reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year. This duty was enforceable by proceedings on indictment. But if the inhabitants of the parish neglected their duty and allowed the roads to fall into disrepair with the result that someone was injured, they were not liable in damages. See, for instance, Russell v The Men of Devon (1788) 2 TR 667, 672 per Lord Kenyon CJ. So firmly rooted in the common law was this rule that, when later statutes put the duty of repair on other bodies, the rule survived and they too were not liable in damages unless the relevant statute made it clear, by express provision or necessary implication, that the duty was to be enforceable by action by the injured person. See Gorringe v The Transport Commission (Tasmania) (1950) 80 CLR 357, 375 - 376 per Fullagar J, cited with approval by the Privy Council in Almeda v Attorney General for Gibraltar [2003] UKPC 81, para 11. Although the rule related to failure to repair, it is equally clear that there was no common law duty on highway authorities to warn travellers that the roads were in a state of disrepair. A fortiori there was no duty to warn them of any problems that might be presented by the natural contours of the land over which the roads ran. Travellers had to look out for themselves.

    81. That remained the position until, by section 44 of the Highways Act 1959, the duty to maintain the highway was placed on highway authorities. Two years later, section 1(1) of the Highways (Miscellaneous Provisions) Act 1961 abrogated the rule exempting the highway authorities from liability from non-repair of the highway. But in any action in respect of damage resulting from an authority's failure to maintain the highway, it was a defence for the authority to prove that it had taken all reasonable care to secure that the part of the highway in question was not dangerous for traffic: section 1(2). The current provisions are to be found in sections 41 and 58 of the Highways Act 1980. The appellant contended that the failure to repaint the Slow marking on the road some distance before the locus of the accident constituted a failure to maintain that part of the highway under section 41. For the reasons given by my noble and learned friends, Lord Hoffmann, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood, however, I am satisfied that the duty to maintain the highway does not include a duty to repaint warning signs on the surface. That ground of liability must accordingly be rejected.

    82. The advent of motor cars and lorries greatly increased the traffic on the highways. As a result, traffic signs began to spring up by the sides of roads. In the Road Traffic Act 1930 Parliament moved to regulate the matter. It banned the placing of signs on or near any roads except where this was done by a highway authority, subject to, and in conformity with, any general or other directions given by the minister of transport: section 48(1) - (3). Sections 51 and 52 of the Road Traffic Act 1960 contained a rather more elaborate version of the same legislation. The provisions were consolidated in sections 54 and 55 of the Road Traffic Regulation Act 1967 and are now to be found in sections 64 and 65 of the Road Traffic Regulation Act 1984. The regulations made by the Secretary of State prescribe, for instance, the types of sign with which we are all familiar, their size and height and how they are to be lighted. While the statutory provisions have over the years conferred a power on the relevant authorities to place such signs on or near roads, it is a public law power. There is nothing in the legislation to suggest that the grant of this power to place signs was to alter the underlying position that authorities have no common law liability to warn motorists of impending risks from the contours or layout of the road. Indeed, it would have been remarkable if the legislation of 1930 or 1960 had brought about such a change since, under the common law then prevailing, a highway authority was not liable in damages for failing to repair the road. And when, in due course, Parliament imposed a statutory duty on authorities to maintain the highway and made them liable in damages for failing to perform that duty, it did not go further and impose a statutory duty to warn of impending dangers to motorists driving along a properly maintained highway.

    83. What little authority there is confirms that the powers of a roads authority to place signs have been superimposed on a common law which continues to impose no duty on the authority to warn of impending dangers. Although not cited by counsel, Murray v Nicholls 1983 SLT 194 is in many respects similar to the present case. A car was driven without stopping out of Devon View Street in Airdrie into Victoria Place where it collided with another car. The driver of the first car was killed and his passengers were injured. They sued the driver's widow and Strathclyde Regional Council as roads authority. At the time the authority's power to place signs would have been governed by sections 54 and 55 of the Road Traffic Regulation Act 1967 and, under section 38(2) and (2A) of the Road Traffic Act 1972 as amended, the authority would have been under the same road safety duty as is now imposed by section 39(2) and (3) of the Road Traffic Act 1988. The pursuers averred that, some considerable time before the accident, Strathclyde had caused white lines to be painted at the junction, indicating that priority should be given to traffic in Victoria Place. But the lines had been all but obliterated as a result of road works some months before the accident and they had not been repainted. There were no signs at the junction. The pursuers averred that Strathclyde were in breach of their duty to take reasonable care that roads in their area were maintained in such a condition that persons using them could do so in safety. They had failed to have the lines repainted as soon as was reasonably practicable after the works were completed and they had failed to erect and maintain warning signs.

    84. The common law of Scotland is somewhat more generous to those injured due to the failure to maintain the roads than was English common law. None the less Lord Stott held that the pursuers' averments in so far as directed against Strathclyde were irrelevant and so dismissed the action against them. He accepted that the previous existence of the white lines at the junction was sufficient to show that it was reasonably foreseeable that, in the absence of such an indication, a vehicle might be driven into Victoria Place without stopping. He continued, at pp 194 - 195:

    "But while foreseeability is no doubt necessary to found a duty it does not follow from the mere fact of foreseeability that a duty will necessarily arise. No case was cited to me in which a road authority has been held to be at fault merely by reason of failure to mark white lines on the roadway or erect a warning sign at a road junction in a built-up area. The only authority referred to by counsel for the pursuers was Bird v Pearce where the point was expressly reserved. The ratio of the decision whereby the road authority was found to be at fault was that by markings on the road they had created a pattern of traffic flow on which drivers could expect to rely and that the obliteration of the markings caused something of the nature of a trap of which the defendants ought to have given warning. In the present case there is no averment to suggest that either driver was influenced by the existence of the markings at an earlier date. What is said is that because of houses and walls adjacent to the road, those driving northwards towards the junction would have no visibility to the east until they actually reached it, but that is no more than the normal state of affairs in a built-up area. The fact that white lines had been put there before while relevant to the question of foreseeability has no bearing otherwise on the existence of a duty. If the pursuers' contention were accepted it would open up a wide field for actions against road authorities. It would seem, for instance, to follow that the pedestrian run down when crossing a busy thoroughfare would be entitled to say that his injuries were caused by the failure of the authority to set the machinery in motion for the provision of a pedestrian crossing. If such duties are to be imposed on road authorities, that should in my opinion be done by Parliament and not by courts of law, and in the absence of authority I am not prepared to hold that the power given to a local authority to mark white lines on the roadway and erect warning signs implies a duty to do so at every crossing in a built-up area where there is a considerable volume of traffic."

    85. Lord Stott rightly distinguished Bird v Pearce [1979] RTR 369. There the Court of Appeal held that, by painting white lines at a series of junctions along the road and then omitting to repaint the lines that had been obliterated at one junction, the council had themselves created a potential source of danger that had not existed before the lines were painted. In effect they had trapped motorists into relying on the white line markings as indicating that they were driving along a major road and that they had priority over traffic in the side roads. In other words the council had exercised their power under section 55(1) of the Road Traffic Regulation Act 1967 to paint signs on the road to assist drivers but, by failing to repaint one and so breaking the pattern, had negligently created a danger to motorists which would not otherwise have existed. Assuming that this was correct, on ordinary common law principles the council were liable to the plaintiff who suffered injury due to the danger they had created. The fact that the authority had been exercising a statutory power when they created the danger was irrelevant, since there was nothing in the statute to provide them with a defence against their common law liability.

 
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