Gorringe v Calderdale Metropolitan Borough Council

A highway authority’s duty under the Highways Act 1980, section 41, is confined to maintaining the physical fabric of the highway. It does not extend to painting or renewing warning signs or road markings. Section 39 of the Road Traffic Act 1988 imposes a target duty, leaving the authority substantial discretion over measures, timing and priorities. A parallel common-law duty arises only in exceptional circumstances where failure to act falls outside that discretion and is wholly unreasonable. The majority found that the accident site was not an accident blackspot and that the authority’s programme was rational. The claim therefore failed. The claimant was also contributorily negligent.

The claimant suffered serious injury when her car crossed the centre line at the crest of a rural road and collided with an oncoming bus. She sued the responsible highway authority, alleging breach of the statutory duty to maintain the highway and negligence arising alongside the road-safety duties imposed by section 39 of the Road Traffic Act 1988.

The Recorder gave judgment for the claimant, rejected contributory negligence and ordered an interim payment. The authority appealed on the scope of section 41, the section 39 common-law duty, factual and evidential findings, expert reasoning, bias and contributory negligence. The central issues were whether warning markings fell within section 41, whether the authority’s failure to provide additional signage was exceptionally and wholly unreasonable, and whether the claimant had contributed to the accident.

The appeal was allowed in full by a majority. The order below was varied to provide judgment for the defendant and dismissal of the claim.

1. Section 41. The court unanimously held that the duty under section 41 of the Highways Act 1980 concerns the physical or structural condition of the highway. Goodes v East Sussex County Council [2000] 1 WLR 1356 confined the duty to keeping the highway in repair so that it is reasonably passable for ordinary traffic without danger caused by its physical condition. A painted warning marking does not repair the highway. The failure to repaint the former SLOW marking therefore did not breach section 41. The reasoning was supported by Burnside v Emerson [1968] 1 WLR 1490 and Lavis v Kent County Council 90 LGR 416.
2. Section 39. May LJ and Sir Murray Stuart-Smith formed the majority on the section 39 issue. Section 39 of the Road Traffic Act 1988 imposes a target duty. It requires studies and a programme of road-safety measures, but leaves the authority discretion over appropriateness, timing, resources and competing priorities. Under Stovin v Wise [1996] AC 923 and Larner v Solihull Metropolitan Borough Council [2001] RTR 469, a parallel common-law duty arises only exceptionally, where the authority’s default is outside the statutory discretion and it would have been irrational, after proper consideration, not to act.
3. The majority concluded that the authority had conducted relevant accident studies and operated a rational priority programme. The site was not shown to be an accident blackspot or to qualify for emergency expenditure. The failure to install inexpensive warning measures was not irrational or wholly unreasonable. No common-law liability was established.
4. The judge’s finding that the claimant was not contributorily negligent could not stand. She approached a blind crest at about 50 mph despite a visible warning sign and braked too late. Potter LJ and Sir Murray Stuart-Smith considered a 50 per cent reduction appropriate if liability remained; May LJ would have assessed the claimant’s contribution more heavily.
5. Bias was not technically established. The challenge to the treatment of expert evidence also failed: the strictures in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 were not applicable on these facts. Potter LJ dissented on section 39, considering the absence of any interim policy for inexpensive measures at a known danger to be wholly unreasonable.

The claimant was ordered to pay the authority’s costs, subject to the qualifications concerning assisted-person and public-funding assessment stated in the order.

1. Court of Appeal (Civil Division): [2002] EWCA Civ 595. By a majority, allowed the appeal in full and substituted judgment for the defendant.
2. High Court of Justice, Queen’s Bench Division: Mr Recorder Thorn QC sitting as a High Court Judge gave judgment for the claimant on 22 February 2001, rejected contributory negligence and ordered an interim payment of £250,000.