Larner v Solihull MBC

A statutory duty that leaves substantial discretion to a public authority will not ordinarily generate a parallel common law duty of care. Liability may arise in exceptional circumstances where the authority acts wholly unreasonably and outside the ambit of its statutory discretion. A statutory power may also support a common law duty where its exercise is irrationally withheld, or where the authority has decided to act and then fails unreasonably to implement that decision. The authority’s conduct must be assessed within the statutory framework and on the particular facts. Even where a duty exists, the claimant must prove breach and causation on the balance of probabilities.

The claimant sustained serious injuries in a road traffic accident at a junction in Solihull. She alleged that Solihull Metropolitan Borough Council, as the relevant authority under Road Traffic Act 1988, should have installed an advance warning sign.

The Recorder of Birmingham dismissed the claim, holding that the Council owed no statutory or common law duty. He also found that any duty had not been breached and that the alleged failure had not caused the accident. On appeal, the claimant relied only on a common law duty superimposed on the statutory framework, and challenged the findings on breach and causation.

1. Appeal dismissed. The Council was not liable on the claimant’s case. The order for costs was made under s 11(1) of the Access to Justice Act 1999, with detailed assessment if necessary.
2. Section 39 of the Road Traffic Act 1988 imposed a target duty. Although expressed in mandatory terms, it left the Council substantial discretion as to the preparation of road-safety programmes and the measures appearing appropriate. Where an authority acts, or lawfully refrains from acting, within that statutory discretion, there is no common law duty requiring it to act differently.
3. The distinction between a statutory power and a statutory duty is not conclusive. A common law duty may arise where the authority’s decision is so unreasonable that it falls outside the statutory discretion, where the only reasonable exercise of the discretion requires particular action, or where the authority has decided to act and unreasonably fails to do so. In the highway context, such liability is exceptional.
4. The approach was materially informed by X v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923, and the subsequent authorities concerning fact-sensitive public-authority duties. The statutory framework and the particular facts had to be examined before deciding whether a duty existed.
5. Even assuming a common law duty, the Council had acted with reasonable care and expedition. The accident pattern and the subsequent investigation did not establish wholly unreasonable conduct or breach. The evidence also supported the Recorder’s conclusion that the claimant would probably not have responded to an advance warning sign, so causation was not proved.

• Court of Appeal (Civil Division): dismissed the claimant’s appeal from the decision of His Honour Judge Crawford QC, sitting as Deputy High Court Judge and Recorder of Birmingham, on 2 July 1999.