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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Gorringe v. Calderdale Metropolitan Borough Council [2004] UKHL 15 (1 April 2004)
URL: http://www.bailii.org/uk/cases/UKHL/2004/15.html
Cite as: [2004] WLR 1057, [2004] 2 All ER 326, [2004] RTR 27, [2004] PIQR P32, [2004] 1 WLR 1057, [2004] UKHL 15

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JISCBAILII_CASE_TORT

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

HOUSE OF LORDS

SESSION 2003-04
[2004] UKHL 15
on appeal from: [2002] EWCA Civ 595 (2 May, 2002)

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,

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.

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.

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.

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):

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):

Stovin v Wise

[1996] AC 923

Stovin v Wise

Bedfordshire

[1995] 2 AC 633

Wednesbury

Associated Provincial Picture Houses Ltd v Wednesbury Corpn

[1948] 1 KB 223

Takaro

[1988] AC 473

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.

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):

Barrett

Phelps

I would dismiss the appeal.

LORD HOFFMANN

My Lords,

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.

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.

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.

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.

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—

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.

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.

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.

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:

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.

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.

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:

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.

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.

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.

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.

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.

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):

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.

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.

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.

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):

He then said (at p 475):

Stovin

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.

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):

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.

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.

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:

British Railways Board v Herrington

[1972] AC 877

Reeves v Commissioner of Police

[2000] 1 AC 360

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.

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.

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.

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.

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.

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.

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.

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.

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,

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.

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.

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.

Section 41(1) of the Highways Act 1980

Section 41(1) provides that—

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

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.

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—

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

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

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

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

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.

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

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

Section 39 of the Road Traffic Act 1988

The section provides as follows:

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.

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.

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

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.

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.

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.

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.

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.

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.

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—

but that, per May LJ, at paragraph 128—

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).

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—

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

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.

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:

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.

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.

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.

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.

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—

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

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.

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—

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.