Ipsofactoj.com: International Cases [2005] Part 3 Case 2 [HL]


HOUSE OF LORDS

Coram

Gorringe

- vs -

Calderdale Metropolitan

Borough Council

LORD STEYN

LORD HOFFMANN

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

LORD BROWN OF EATON-UNDER-HEYWOOD

3 APRIL 2004


Judgment

Lord Steyn

My Lords,

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

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

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

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

    In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.

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

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

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

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

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

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

  6. I would dismiss the appeal.

    Lord Hoffmann

    My Lords,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (2)

    Each local authority must prepare and carry out a programme of measures designed to promote road safety ....

    (3)

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

    (a)

    must carry out studies into accidents arising out of the use of vehicles on roads .... within their area,

    (b)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  30. He then said (at p 475):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Lord Scott of Foscote

    My Lords,

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

  46. It is said, however, that the highway authority, Calderdale Metropolitan Borough Council, were at fault and must bear some responsibility and liability for the consequences of the accident. They were at fault because they had failed to place on or near the road sufficient signs giving warning to motorists that they were approaching a dangerous part of the road. Mrs. Gorringe's case against the Council is put in two alternative ways.

    • It is contended that the Council's failure to put in place the requisite signage constituted a breach of its duty under section 41(1) of the Highways Act 1980 "to maintain the highway".

    • Alternatively it is contended that the failure constituted a breach of the Council's common law duty of care owed to Mrs. Gorringe and all motorists driving on the stretch of road in question.

    In arguing for a common law duty of care of a standard sufficient to enable the failure to constitute a breach, reliance has been placed on section 39 of the Road Traffic Act 1988. Section 39 imposes a duty on every highway authority to prepare and carry out a programme of measures designed to promote and improve road safety.

  47. In summary, Mrs. Gorringe's case is,

    • first, that the absence of suitable road signage constituted a failure "to maintain" the road in such a condition as to be safe for use; and,

    • secondly, that the Council's common law duty of care required it to put into effect safety measures that included the positioning of the road signs in order to discharge its section 39 duty.

    It is, I think, convenient at this point to set out and explain the effect of the relevant statutory provisions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  53. Section 39 of the Road Traffic Act 1988 provides as follows:

    (1)

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

    (2)

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

    (3)

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

    (a)

    must carry out studies into accidents arising out of the use of vehicles on roads or parts of roads, other than trunk roads, within their area,

    (b)

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

    (c)

    ....

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

  55. Sections 64 and 65 of the Road Traffic Regulation Act 1984. In view of the importance to Mrs. Gorringe's case of the Council's failure to install the requisite warning signs it is relevant to notice some of the provisions of the 1984 Act relating to the installing of road signs.

    64.

    (1)

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

    (a)

    specified by regulations made by the Ministers acting jointly, or

    (b)

    authorised by the Secretary of State,

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

    (2)

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

    ....

    (4)

     

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

    ....

    (c)

    a traffic sign placed on any land—

    (i)

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

    (ii)

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

    65.

    (1)

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

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

    THE FACTS

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

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

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

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

  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 ....

    I can now turn to consider the two issues.

    THE SECTION 41 ISSUE

  64. 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 & 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.

    THE SECTION 39 ISSUE

  70. 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.

  86. By contrast, in Murray v Nicholls the pursuers averred no more than that Strathclyde had failed to exercise their power to repaint the lines in circumstances where it was foreseeable that vehicles would collide. In effect they had failed to warn drivers to take care when driving out of Devon View Street into Victoria Place. The mere fact that Strathclyde had the public law power to paint white lines on the road did not mean that they came under a common law duty to take care to exercise that power wherever it was foreseeable that, otherwise, accidents were liable to happen. As Lord Stott pointed out, it is not for the courts but for Parliament to create such a far-reaching duty, after considering all the implications. Parliament has so far chosen not to do so, leaving it to drivers to take proper care for the safety of themselves, their passengers and other road users.

  87. By deciding to paint the lines at the junction - presumably because of the perceived risk of collisions - Strathclyde would have come under a duty to do so carefully and not in a way that would aggravate any dangers at the junction. But they had not somehow imposed on themselves, retrospectively, a common law duty to paint the lines or, prospectively, to paint them back if they were obliterated.

  88. In exactly the same way, in the present case, the mere fact that the defendants had once painted the Slow sign on the road does not mean that they had been under a common law duty to do so, or that they were under such a duty to repaint the sign when it came to be obliterated. When that happened, the situation returned to what it had been before the defendants decided to exercise their statutory powers by painting it in the first place. They were not under any common law duty to exercise their power to repaint it and are not liable because, for whatever reason, they did not do so. Of course, if they had done so, it might have helped motorists. And after the appellant's accident, they did indeed repaint the marking and make a number of other changes. But this was something that they decided to do in the exercise of their statutory powers, not something that they were under a common law duty to do. This is simply an application of what was said by Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 465:

    although a public authority may be under a public duty, enforceable by mandamus, to give proper consideration to the question whether it should exercise a power, this duty cannot be equated with, or regarded as a foundation for imposing, a duty of care on the public authority in relation to the exercise of the power. Mandamus will compel proper consideration of the authority of its discretion, but that is all.

  89. As I said at the outset, Mr. Wingate-Saul accepts that this would be the position if it were not for section 39 of the Road Traffic Act 1988. Sections 38 and 39 are grouped under the cross heading "Promotion of Road Safety". Section 38 deals with the Highway Code, while section 39 has the broad heading "Powers of Secretary of State and local authorities as to giving road safety information and training". Section 39(2) and (3) derive from section 38(2) and (2A) of the Road Traffic Act 1972 as amended by section 8(1) of the Road Traffic Act 1974. Subsection (2) imposes on local authorities the duty to carry out a programme of measures designed to promote road safety. In particular, under subsection (3) the local authority must carry out studies of vehicle accidents in their area and, in the light of those studies, take appropriate measures to prevent such accidents, including the construction, improvement, maintenance or repair of roads for which they are the highway authority and other measures in the exercise of their powers for controlling, protecting or assisting the movement of traffic on the roads. One purpose, at least, is to ensure that local authorities take road safety considerations into account in carrying out their highway functions. This is to be achieved by placing a wide public law duty, in the nature of a target duty, on the authorities concerned. A duty of that kind is not enforceable by means of a private law action for its breach. While accepting this, Mr. Wingate-Saul submitted that the enactment of this public law duty had created a new (private) common law duty of care on the part of the authorities for the safety of those using the roads in their area.

  90. My Lords, I am unable to accept that submission. Section 39 involves the kind of target duty that gives rise to no right to damages for its breach at the suit of an individual, even where the breach of duty has consisted in the negligent failure of the local authority to take the appropriate measures to prevent accidents. As Lord Hoffmann pointed out on behalf of the majority in Stovin v Wise [1996] AC 923, 952H, and as he has pointed out again in his speech today, 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.

  91. The position would be different if the statutory duty in section 39 had been superimposed on a situation where there was an existing duty of care on traffic authorities to warn motorists of prospective risks. Then various questions about the interplay of the two duties would arise. For example, as Lord Wilberforce pointed out in Anns v Merton London Borough Council [1978] AC 728, 755, where Parliament imposes a duty but gives the authority a discretion in performing the duty, a plaintiff cannot rely upon a common law duty of care, unless the action taken was not within the limits of the bona fide exercise of that discretion. So it would only be where the local authority's actings were not within those limits that there would be a claim for damages for breach of the underlying duty of care. It might also be that the factors to be taken into account in exercising a pre-existing common law duty of care would be affected by the content of the statutory duty. But that is very different from saying that the imposition of this statutory duty has called into existence a common law duty where none existed before.

  92. In Larner v Solihull Metropolitan Borough Council [2001] RTR 469 the Court of Appeal had to consider the effect of section 39. The claimant was injured when she failed to observe two "Give way" signs, drove across a junction and collided with another vehicle. She sued the council for damages on the ground that they had failed to provide additional advance warning signs. On the facts of the case the claimant failed. In delivering the judgment of the court, however, the Lord Chief Justice accepted, at p 475, para 15, that in the case of section 39 an authority could be liable at common law if they acted wholly unreasonably in failing to provide a sign and their default thus fell outside the ambit of discretion given to them by the section. In doing so, he adopted the approach of the minority in Stovin v Wise. Liability presupposes duty, however - and, on the reasoning of the majority in Stovin v Wise, there is nothing to show that the enactment of section 39 prompted the emergence of a common law duty of care on councils to place warning signs. So the mere fact that, in a given case, a reasonable council would have exercised its powers by providing an additional sign does not alter the fact that they would have been under no common law duty to do so. Conversely, even if it would have been wholly unreasonable for the council not to provide an additional sign, this does not mean that they were in breach of a common law duty to do so. I therefore agree that this aspect of the reasoning of the Court of Appeal should be disapproved.

  93. If traffic authorities carry out their duties under section 39, this should help to make the roads safer by informing their decisions as to the repairs and modifications, including the placing of warning signs, that should be carried out. In the exercise of their public law powers and duties, highway authorities do often, or even usually, warn of prospective dangers at junctions or crests in the road, but drivers cannot rely on them always having done so. Drivers must take care for themselves and drive at an appropriate speed, irrespective of whether or not there is a warning sign. By insisting that drivers always look out for dangers themselves and not rely on others, the common law supports the overall policy of promoting road safety. If drivers fail to drive carefully and others are injured, the others can recover compensation from the drivers' insurers or from the Motor Insurers' Bureau. Neither the drivers nor their passengers, nor indeed their insurers, can recover damages from the highway authorities for not having placed a warning sign. If that settled pattern is to be changed, it is for Parliament to make the change and to approve the additional funding needed by the authorities to handle and meet the claims.

  94. In the circumstances I am satisfied that the Council did not owe Mrs. Gorringe a duty of care to paint a marking on the road or to set up a sign, warning her to slow down as she approached the crest in the road where the accident occurred. For these reasons, as well as for those given by Lord Hoffmann, Lord Scott of Foscote and Lord Brown of Eaton-under-Heywood, the appeal must be dismissed.

    Lord Brown of Eaton-under-Heywood

    My Lords,

  95. On 15 July 1996 Mrs. Gorringe suffered very severe injuries in a collision on a B road in West Yorkshire when, just short of a crest in the road, she braked sharply and, with locked wheels, skidded into a double-decker bus.

  96. Section 39 of the Road Traffic Act 1988 imposes upon local authorities certain statutory duties, couched in the broadest of terms, designed to promote road safety and to prevent road accidents. It is Mrs. Gorringe's case that in the discharge of those duties the respondent local authority (Calderdale) ought properly to have warned her of the dangers of the road ahead, in particular by painting a "slow" sign on the road surface. Although acquitted of all blame by the trial judge, Mrs. Gorringe now accepts that she herself must be regarded as having approached the crest at a negligently fast speed. Assume, however, that a "slow" sign on the road would have protected her against her own negligence. Was Calderdale duty-bound to put it there and, if so, is a breach of such duty actionable in private law? These are the issues raised before your Lordships' House.

  97. It is not suggested that Calderdale's section 39 duty is actionable as such in private law. In other words it is accepted that no claim could arise here for breach of statutory duty. What is suggested, however, is that a common law duty of care arises out of Calderdale's statutory duty, and that Calderdale would be liable in a private law claim for damages for breach of that duty.

  98. The argument is founded principally on Larner v Solihull Metropolitan Borough Council [2001] RTR 469, in which the Court of Appeal, although rejecting the claim on the facts, contemplated that damages for breach of a common law duty of care would be recoverable for a local authority's failure to paint warning signs on the road, based upon a breach of its section 39 duty, provided always that the default complained of was not within the ambit of the authority's discretion (paras 13 and 15); provided, in other words, that the Council could be shown to have acted irrationally, that being the suggested touchstone by which the breach of a public law duty gives rise to common law liability.

  99. In deciding that a common law duty of care could arise, the Court adopted the reasoning in favour of such a duty given by the minority of the House in Stovin v Wise [1996] AC 923, — and in addition relied on a trilogy of decisions in your Lordships' House — X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619 — in each of which a duty of care was held (at least arguably) to have arisen.

  100. I agree with the reasons given in the speech of my noble and learned friend Lord Hoffmann for distinguishing that line of authority — essentially because the common law duty of care in those cases was found or suggested to have arisen not by reference to the existence of the respective authorities' statutory powers and duties but rather from the relationships in fact created between those authorities and the children for whom in differing ways they had assumed responsibility. I would add, moreover, this further distinction. Unless in those cases the Court were to find the authority's various responsibilities capable of giving rise to a common law duty of care, those wronged children, themselves wholly blameless, would go uncompensated, however inadequately their interests had been safeguarded. In the highway context, by contrast, the claimant (or some other road user involved in the accident) will almost inevitably himself have been at fault. In these circumstances it seems to me entirely reasonable that the policy of the law should be to leave the liability for the accident on the road user who negligently caused it rather than look to the highway authority to protect him against his own wrong.

  101. With regard to the physical state of the highway itself, of course, the legislation has since 1961 placed the responsibility for its maintenance upon the Highway Authority, a duty now found in section 41 of the Highways Act 1980, as amended by section 111 of the Railways and Transport Safety Act 2003 to reverse the effect of this House's decision in Goodes v East Sussex County Council [2000] 1 WLR 1356. This duty, moreover, is actionable as such so as to give rise to a private law claim for damages. Road users, therefore, are entitled to rely upon the state of the road's surface and accordingly the primary liability for any loss resulting from a breach of the section 41 duty rests on the authority. Road users are not, however, entitled to rely upon the Highway Authority with regard to the various other hazards of road use. They are not entitled to suppose that their journeys will be free from these or that the need for care will generally be highlighted so as to protect them from their own negligence.

  102. What I have said thus far is in the context of road accidents involving negligence on the part of at least one of the road users involved. But that is because I find it difficult to contemplate a case in which a road accident could occur without such negligence unless either a) it results from the physical state of the road (in which case, as already explained, liability will in any event rest upon the Highway Authority), or b) the Highway Authority will, irrespective of any particular statutory power or duty, be liable in a conventional common law negligence action for having enticed the motorist to his fate by some positive act. Assuming that the road user is not to be regarded as negligent, he must inevitably have been misled into ignoring whatever danger precipitated his accident. Although motorists are not entitled to be forewarned of the ordinary hazards of highway use, plainly they must not be trapped into danger. If, for example, an authority were to signal a one-way street but omit to put No Entry signs at the other end, it might well be found liable, not because of any statutory power or duty to erect such signs but rather because it induced a perfectly careful motorist into the path of danger. Or assume road markings indicating where it is safe to overtake and where it is not and that by some crass mistake in the painting of these a motorist were to be ensnared into the path of an oncoming vehicle previously hidden in a blind spot ahead. That too would suggest to me misfeasance of the kind traditionally attracting tortious liability without the need to look for some statutory power or duty as its foundation. Such cases, however, may be expected to be few and far between and I would certainly not regard Bird v Pearce [1979] RTR 369 as one of them: the suggestion there that the highway authority itself created the danger appears to me irreconcilable with the conclusion that one of the drivers was himself two-thirds to blame for the collision.

  103. There seems to me, therefore, no good reason for superimposing upon such general powers and duties as are conferred upon highway authorities a common law duty of care in respect of their exercise. Nor does it seem to me that Parliament can have intended a private law liability in damages to flow from a public law failure in the exercise of the authority's powers or the discharge of its duties. Where with regard to highways Parliament does intend users to have a remedy for damages it says so, as initially it did in 1961 and then again, by extending the section 41 duty to encompass the removal of ice and snow, in 2003. A maintenance obligation of this nature, moreover, lends itself to enforcement by way of private law action altogether more readily than a more general duty of care. Section 41 imposes comparatively well defined obligations upon authorities and, although resort to the section 58 statutory defence may complicate the litigation, that is as nothing compared to the problems, exemplified by this very case, of determining just what warnings at any particular point in the highway system are required, in effect as a matter of law, to be given. One cannot over-maintain the fabric of the public highway. Warning overload, however, is all too easily imaginable. As it is, road users tend to discount such warnings as are implicit in the various speed limits and other cautionary signs to which they are subject. The currency would be debased still further were highway authorities, anxious to avoid lengthy and expensive litigation of the kind Calderdale has been subjected to here, to feel obliged to multiply its street signing still further.

  104. It follows from all this that, sympathetic though inevitably one must feel towards someone as severely injured as Mrs. Gorringe, she cannot look to Calderdale for any part of her loss. Its only duty towards her was to maintain the physical condition of the highway as it did and not to ensnare her into unforeseeable danger. On the trial judge's finding that she herself was blameless, one could have understood a further conclusion that she must necessarily therefore have been trapped into her fate by Calderdale's negligence. Once it is recognised, however, that the danger of driving as she did should have been obvious to her, as is now accepted, her claim must fail. Even if, contrary to the conclusions arrived at by the majority of the Court of Appeal, Calderdale failed in its public law duty under section 39, that gave rise to no corresponding breach of a duty of care actionable in private law.

  105. For these reasons and those of my noble and learned friends Lord Hoffmann, Lord Scott of Foscote and Lord Rodger of Earlsferry, I too would dismiss this appeal.


Cases

M (A Minor) v Newham London Borough Council & X (Minors) v Bedfordshire County Council [1995] 2 AC 633; 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; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; Tomlinson v Congleton Borough Council [2004] 1 AC 46; Burnside v Emerson [1968] 1 WLR 1490; Haydon v Kent County Council [1978] QB 343; Goodes v East Sussex County Council [2000] 1 WLR 1356; Lavis v Kent County Council (1992) 90 LGR 416; Goldman v Hargrave [1967] 1 AC 645; Reg v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58; O'Rourke v Camden London Borough Council [1998] AC 188; Larner v Solihull Metropolitan Borough Council [2001] RTR 469; Capital & Counties plc v Hampshire County Council [1997] QB 1004; Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360; Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430; Dorset Yacht Co v Home Office [1970] AC 1004; East Suffolk Rivers Catchment Board v Kent [1941] AC 74; Bird v Pearce [1979] RTR 369; Skilton v Epsom & Ewell Urban District Council [1937] 1 KB 112; Sedleigh-Denfield v O'Callaghan [1940] AC 880; Sheppard v Glossop Corporation [1921] 3 KB 132; Russell v The Men of Devon (1788) 2 TR 667; Gorringe v The Transport Commission (Tasmania) (1950) 80 CLR 357; Almeda v Attorney General for Gibraltar [2003] UKPC 81; Murray v Nicholls 1983 SLT 194; Sutherland Shire Council v Heyman (1985) 157 CLR 424; Anns v Merton London Borough Council [1978] AC 728

Legislations

Road Traffic Act 1960: s.51, s.52

Road Traffic Act 1972: s.38

Road Traffic Act 1988: s.39

Road Traffic Regulation Act 1967: s.54, s.55

Road Traffic Regulation Act 1984: s.64, s.65

Railways and Transport Safety Act 2003: s.111

Highways Act 1980: s.41, s.58, s.130

Highways (Miscellaneous Provisions) Act 1961: s.1(1)

Highways Act 1959: s.44

National Health Service Act 1977: s.1(1)

Fire Services Act 1947: s.1

Authors and other references

Prof Paul Craig, Administrative Law, 2003, 4th ed

Representations

Wingate-Saul QC for appellant


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