Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 (1 April 2004)

Mrs Gorringe was severely injured when her car collided with a bus at a road crest. She sued the highway authority for failing to paint warning signs on the road. The House of Lords held that neither the statutory duty under section 39 of the Road Traffic Act 1988 nor section 41 of the Highways Act 1980 created a private law duty of care to provide road warnings.

Facts

On 15 July 1996, Mrs Denise Gorringe was driving her car at approximately 50 mph on a country road in Yorkshire when she approached a sharp crest. As she neared the top, she saw a bus approaching from the opposite direction and braked sharply. Her wheels locked and she skidded into the path of the bus, suffering severe brain injuries. The bus driver was not at fault. At some point in the past, a ‘SLOW’ marking had been painted on the road surface before the crest, but this had disappeared years before the accident.

The Claimant’s Case

Mrs Gorringe claimed that Calderdale Metropolitan Borough Council, as the highway authority, was liable for her injuries because it had failed to provide adequate warning signs, particularly by not repainting the ‘SLOW’ marking on the road. She argued this failure constituted either a breach of the duty to maintain the highway under section 41 of the Highways Act 1980, or alternatively a breach of a common law duty of care arising from section 39 of the Road Traffic Act 1988.

Issues

The House of Lords considered two main issues:

1. Section 41 Highways Act 1980

Whether the failure to provide warning signs constituted a failure to ‘maintain the highway’ under section 41(1) of the Highways Act 1980.

2. Common Law Duty of Care

Whether section 39 of the Road Traffic Act 1988, which imposes duties on local authorities to promote road safety, could give rise to a common law duty of care actionable in private law.

Judgment

Section 41 Issue

The House of Lords unanimously held that the duty to ‘maintain’ the highway under section 41 is confined to keeping the fabric of the road in repair. It does not extend to providing warning signs or road markings. Lord Hoffmann referred to the established principle that ‘maintenance’ means repair and keeping in repair, as confirmed in Goodes v East Sussex County Council [2000] 1 WLR 1356.

Section 39 Issue

The House held that section 39 of the Road Traffic Act 1988 imposes broad public law duties which are not actionable by private individuals. Lord Hoffmann stated that such duties are enforceable only through judicial review, not private law actions for damages. He emphasised that a statutory power cannot be converted into a common law duty simply because it would have been reasonable to exercise the power.

Lord Scott of Foscote observed that if a statutory duty does not give rise to a private right of action, that same duty cannot create a common law duty of care that would not have existed at common law. He stated that a common law duty of care cannot grow parasitically out of a statutory duty not intended to be owed to individuals.

Lord Rodger of Earlsferry noted that travellers have historically had to look out for themselves regarding natural contours and hazards of roads, and section 39 did not change this underlying position.

The Larner Decision

The House disapproved of the reasoning in Larner v Solihull Metropolitan Borough Council [2001] RTR 469, where the Court of Appeal had suggested that a common law duty could arise from section 39 where an authority acted ‘wholly unreasonably’. Lord Hoffmann stated that the Court of Appeal in Larner had wrongly adopted the minority view from Stovin v Wise [1996] AC 923.

Implications

This decision firmly establishes that:

• The duty to maintain highways under section 41 of the Highways Act 1980 is limited to physical repair and does not include providing warning signs or markings.
• Broad public law duties such as those in section 39 of the Road Traffic Act 1988 do not give rise to private law duties of care.
• Highway authorities are not liable at common law for failing to exercise statutory powers to warn road users of dangers, even where it might have been reasonable to do so.
• Road users bear primary responsibility for their own safety and cannot rely on highway authorities to protect them from obvious dangers.

The decision clarifies the distinction between misfeasance (positive acts creating danger) and nonfeasance (failure to act) in highway authority liability, and confirms that authorities are only liable for the former at common law.

Verdict: Appeal dismissed. The Council owed no duty of care to Mrs Gorringe to paint warning signs on the road. Neither section 41 of the Highways Act 1980 nor section 39 of the Road Traffic Act 1988 created an actionable private law duty to provide road warnings.

Source: Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 (1 April 2004)