England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE CRAWFORD QC
THE RECORDER OF BIRMINGHAM

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 20th December 2000

LORD WOOLF CJ:

This is the judgment of the Court :

1. It is as to an appeal by the claimant, Mrs Andrea Larner. As long ago as 13 March 1992 she was involved in a traffic accident, as a result of which she sustained serious injuries.
2. The accident occurred shortly before midnight at the junction of Fulford Hall Road and Norton Lane, Tidbury Green, Solihull. At the time of the accident the claimant had been driving in a southerly direction across the junction in Fulford Hall Road. As between Fulford Hall Road and Norton Lane, Fulford Hall Road was the minor road and in emerging into the junction the claimant had passed two 'Give Way' signs situated in Fulford Hall Road at each side of the mouth of the junction.
3. The proceedings had been brought against Solihull Metropolitan Borough Council who were the relevant authority for the purposes of s.39 of the Road Traffic Act 1988. S.39, as amended, so far as relevant provides:

"(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 relevant authority –

(a) if it is a local authority, must prepare and carry out a programme of measures designed to promote road safety, or

(3) Each relevant authority-

(a) must carry out studies into accidents arising out of the use of vehicles

(i) if it is a local authority on roads or parts of 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 the maintenance of which they are responsible and other measures taken in the exercise of their powers for controlling, protecting or assisting the movement of traffic on roads and

(c) in constructing new roads, must take such measures as appear to the authority to be appropriate to reduce the possibilities of such accidents when the roads come into use.

(3A) The duties imposed by subsection (3) above are without prejudice to the generality of subsection (2) above and –

(a) in the case of a local authority, are to be discharged in pursuance of their duty under subsection (2) (a) above;"

4. In a nutshell it was the claimant's case at the trial that the Council should have provided additional advance warning to that provided of the fact that she was required to give way to traffic in Norton Lane and that the Council was in breach of its statutory duty and negligent in failing to provide that additional warning
5. On the 2 July 1999, His Honour Judge Crawford QC, the Recorder of Birmingham, sitting as a Deputy High Court Judge dismissed the claimant's claim. He came to the conclusion that the defendant did not owe any duty to the claimant, either under statute or at common law. He further decided that if the authority did owe a duty that duty had not been breached and in any event any failure on the part of the defendant was not causative of the accident. However in case liability was established as a result of an appeal, the judge indicated that he would have assessed the Council as being one third and the claimant as being two thirds to blame.
6. At the trial the claimant had alleged that the Council had created a trap but this contention was not pursued on the appeal. The claimant also no longer relied on her contention that the defendant owed her a statutory duty of care under s.39 of the 1988 Act. On the appeal, the claimant's case was confined to her contention that a common law duty of care should be superimposed upon the statutory duty under s.39 of the 1988 Act. During the course of the hearing of the appeal Mr Owen QC made it clear that he did not rely on the negligence of any individual employee of the Council to establish that the Council was vicariously liable. To succeed on her appeal the claimant has not only to establish that the Council owed her a duty of care but also that the Recorder was wrong both to find that the Council had not breached that duty and that any breach had not caused her accident. She does not challenge the Recorder's apportionment of blame. We will now consider the issues in turn.

Duty of Care

7. In addition to s.39 of the 1988 Act, s.65, of the Road Traffic Regulation Act 1984 authorises the Council to cause or permit traffic signs to be placed at or near a road. This is subject to the signs conforming to ministerial directions. In his submissions on behalf of the claimant, Mr Owen did not rely on s.65 of the 1984 Act. The reason for this is that s.65 only gave the Council a power to place traffic signs on the road. It did not create a duty to do so and it would undoubtedly be more difficult for the claimant to establish that the Council owed her a common law duty of care in the absence of a corresponding statutory duty.
8. Here the primary allegation made against the Council is that it failed to erect an advance warning sign well back from the junction which would have placed the claimant on notice that she was approaching a junction where the road on which she was travelling did not have precedence. S.65 of the 1984 Act clearly did no more than give the authority the power to place such a sign in the road. Mr Owen, however, argued that s.39 of the 1988 Act placed the Council under a statutory duty to take the steps needed. But, as Mr Ralph Lewis QC accurately submitted, while s.39 is couched in mandatory terms, it in fact leaves a considerable degree of discretion to the relevant local authority. S.39 (2) does not identify the intervals at which the program of measures designed to promote road safety must be prepared or carried out. Nor does it specify the frequency of the programs. S.39 (3) is equally unspecific. The Council is merely required to carry out measures which appear to the Council appropriate. The duty which the section creates can therefore be described as a target duty since it does no more than require the Council to exercise its powers in the manner that it considers is appropriate.
9. That there is a distinction between the position where a statutory body has merely a power and where it is under a statutory duty is clear both as a matter of principle and on the authorities. However that simple distinction cannot always be decisive. On the one hand, a statutory body must give proper consideration to the exercise of its powers, and a failure to exercise a power may in a particular factual situation be so unreasonable as to amount to a breach of duty. On the other hand, a statutory duty may involve so large a degree of discretion (and in particular, discretion as to matters of policy) as to be incompatible with a common law duty of care. The more extensive the discretion the greater the difficulty in establishing a common law duty of care. If a body is acting lawfully (or is lawfully taking no action) within the ambit of its statutory discretion, there will be no question of it being under a common law duty to act otherwise. The statute will authorise it to behave in precisely the manner in which it has and the statutory authority will provide a defence to any alleged liability. The fact that a power is discretionary does not, however, mean that a common law duty of care cannot exist. Any statutory discretion can be transformed into a statutory duty once the body decides to exercise its discretion to act in a particular manner. If it then unreasonably fails to do so the courts may make a mandatory order compelling it to act in accordance with its own decision. Again, if the only reasonable way in which it could exercise its discretion is to act in a particular way the body becomes under a duty to act in that manner. In these situations there can be a duty to act at common law as well as under the statute.
10. The position was succinctly summarised by Lord Browne-Wilkinson in X v Bedfordshire County Council [1995] 2 AC 633 at p.736 when he said:

"Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decision complained of falls within the ambit of such statutory discretion they cannot be actionable at common law. However, if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability"

11. In support of this approach, Lord Browne-Wilkinson referred to Lord Reid's speech in the Dorset Yacht [1970] A.C.1004, at 1031. The position is also, in my judgment, accurately summarised by Lord Hoffmann in Stovin v Wise [1996] AC 923. It is helpful to refer to Lord Hoffmann's speech in that case because the case involved a motor vehicle that was being driven by the defendant out of a junction. The junction was known by the highway authority to be dangerous because road users view was restricted by a bank on adjoining land. It was contended that the authority should have made the junction safe. The trial judge and the Court of Appeal decided that the authority was liable, but the House of Lords allowed the authority's appeal by a majority of three to two.
12. Lord Hoffmann said:

"The same is true of an omission to perform a statutory duty. If such a 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 services are 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.

In the case of a mere statutory power, there is a further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory "may" can never give rise to a common law duty of care" (952H-953C)."

13. So the starting point in this case is that, for it to be shown that the Council is liable at common law, it is necessary to establish that the matter of complaint was not within the ambit of the discretion of the Council. If the Council was acting within the ambit of its discretion, there cannot be any question of a breach of any duty to the claimant. (see the Bedfordshire case at p.737E). As Lord Browne-Wilkinson also said in Bedfordshire (at p.739C):

"The question of 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."

14. Since the Bedfordshire case was decided, the approach of the House of Lords has been influenced by the decision of the European Court of Human Rights in Osman v United Kingdom [1999] 1FLR193. (see Kent v Griffiths [2000] 2 WLR 1158 at p.1168/9). However, the Osman decision does no more than emphasise, both with regard to statutory duties and powers, that without examining the particular facts of the individual case within its statutory framework it is not possible to decide whether a duty of care exists. This is confirmed by the decision of the House of Lords in the subsequent cases of Barrett v Enfield London Borough Council [1999] 3 WLR 79 (in particular Lord Slynn of Hadley's speech at p.96D/H). It is also useful to refer to the speeches of Lord Slynn and Lord Clyde in Phelps v Hampshire County Council [2000] 3 WLR 776.
15. The Bedfordshire, the Barrett and the Phelps cases all concerned the responsibility of local authorities for children. Here we are concerned with the responsibility of a Council for placing warning signs on the highway. In relation to the highways, the courts have been reluctant to impose duties of care on the highway authority. An example of this is provided by the further decision of the House of Lords in Goodes v the Sussex County Council [2000] 1 WLR 356. In that case the House of Lords were not prepared to extend the duty of a highway authority to "maintain the highway" under s.41 (1) of the Highways Act 1980 so as to make the authority liable for ice or the accumulation of snow on the road. However, so far as s.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.
16. But absent that scale of behaviour, in order judgment the Council would owe no duty of care pursuant to a common law duty running in parallel with or superimposed upon the provisions of s.39. 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. In this case the Council has since 1990 produced annual reviews of its road safety programme and is obviously conscientious as to its obligations as to road safety. In these circumstances it is going to be difficult to establish it is in breach of this confined common law duty. All that will be required to avoid liability for the failure to take measures is to establish that measures were rationally not considered to be appropriate. 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. If an action is commenced which has no real prospect of success an application for summary judgement dismissing the action under the CPR part 24.2 can be made. In this case however, the judge has fully investigated the facts and is now necessary to turn to the question of whether he was wrong to decide that a breach of duty had not been established.

Breach of the Duty of Care

17. The claimant's case depends upon the pattern of accidents which occurred at the junction and the complaints which were made to the police and the Council as to the dangerous nature of this junction. As to the number of accidents which have occurred involving personal injury there is no dispute. From 1980 to 1982 there were no accidents, in 1983 there were three. In 1984, 1987, 1988, 1990, 1993 and 1994 there were no accidents. In 1985, 1989, 1995 and 1996 there was one accident, in 1986 there were two accidents, in 1992 there were three accidents, but in 1991, the year before the claimant's accident in March 1992, there were four. Mr Owen naturally relies on the group of accidents in 1983 (one of which was north bound) and the group in 1991. The Council points out however that over the 17 years between 1980 and 1996 there were only 16 accidents overall.
18. So far as the 1983 group is concerned the judge in our view correctly came to the conclusion that this was in its context, a random fluctuation to which the Council were entitled to attach no special significance. In 1983, the Council did agree to install and in fact installed an additional sign facing south. This provided no protection for the claimant, but was not surprising action bearing in mind that one of the accidents involved a vehicle travelling north across the junction and unlike vehicles travelling south vehicles travelling in that direction were not subject to a speed limit.
19. As to the 1991 accidents, as a result of a report to the police by local residents, the Council's traffic management technician, Mr Tovey, who the judge regarded as "careful and competent", visited the scene twice with the local road-safety police sergeant. In addition, on the very day of the last accident in 1991, (18 November 1991), the Council held a meeting with the Tidbury Green Residents Association to discuss the situation. The Council resolved to commission a report from an expert traffic consultant. It was as a result of that report that the advance warning sign, controlling traffic travelling in the same direction as the claimant, was erected after her accident.
20. Mr Owen submits vigorously that the study which took place in 1992 should have taken place earlier and if it had done so, the advance warning sign would have been erected prior to the claimant's accident. The judge on the contrary concluded that:

"the local authority acted properly and with reasonable speed. There were no delays which seem to me to require explanation. Each step followed the preceding step at, what seems to me, having regard to local government procedures, a relatively fast speed … The claimant submits the enquiry should have been carried out with a greater urgency. I do not accept that. That seems to me to proceed with the advantage of hindsight. In the state of affairs known to those responsible at the time I regard the speed with which things were done as satisfactory. Accordingly, for these reasons, it seems to me that at all material times the local authority acted with reasonable care and reasonable expedition. If, therefore, they were under a duty of care, in my judgement they were not in breach of such a duty."

21. Mr Owen and Mr Lewis both took us through the sequence of events which happened in detail and with care. We have well in mind the Circular on roads 12/75. We do not intend any disrespect to the able arguments of Mr Owen, but the longer the argument proceeded the more we became convinced that the judge's conclusion was unassailable. Accordingly if the Council owed the claimant a duty of care on the evidence which was before the judge, they had complied with their duty.
22. In these circumstances it is not strictly necessary to deal with the issue of causation. However in deference to Mr Owen's argument we state our conclusions shortly.

Causation

23. The Recorder said:

"A striking feature of the case is that the claimant appears to have taken no avoiding action at all. There is no evidence of any last minute braking and there is no evidence of any last minute swerving."

24. This is the position. The recorder also referred to the evidence of the driver of the other vehicle involved in the accident who commented that he did not see the claimants headlight dip "as if under braking" nor were there any brake marks on the road. On this foundation the judge concluded that the claimant would have failed to see or to respond to an advanced warning sign if it had been in position since she did not react to the signs at the junction. The judge therefore came to the conclusion that even if there had been an advance warning sign it was not possible to say that on the balance of probabilities the result would have been any different.
25. The other minor changes made at the junction, the judge did not consider would have made any difference, although one of the signs at the junction could have been partially obscured by tree branches. The photographs of the junction make it clear, that any driver exercising reasonable care driving at night should have seen those signs even though they were not as well lit as they could have been. The claimant herself accepts she should have seen them because she does not challenge the finding of the judge that in any event she would have been guilty of two-thirds contributory negligence. There is cause for sympathy for the claimant because prior to the accident she had apparently previously crossed 11 junctions in relation to which she had the right of way. This had obviously lulled her into a false sense of security, but as the judge was entitled to find that she failed to see two signs he was also entitled to hold on the balance of probabilities that the claimant would have also failed to see a third. In our judgment the judge was entitled to come to the conclusion which he did on causation.

We dismiss the appeal.

Order: Appeal dismissed with costs under section 11(1) of Access to Justice Act 1999; costs to go for detailed assessment if not agreed; cost to be assessed in accordance with Community Legal Services (Costs) Regulations 2000. (Order does not form part of the approved judgment)