Gorringe (by her litigation Friend June Elizabeth Todd)(FC) (Appellants) v. Calderdale Metropolitan Borough Council (Respondents)

A highway authority’s statutory duty to maintain a highway concerns its physical fabric. It does not require warning signs or road markings to alert drivers to ordinary hazards arising from the road’s layout.

A broad public law duty which creates no individual right to damages cannot, by itself, generate an equivalent common law duty of care. Liability may nevertheless arise on an orthodox common law basis where an authority positively creates a danger, induces reasonable reliance or assumes responsibility through its acts or relationships.

Drivers remain primarily responsible for recognising obvious road conditions and selecting a safe speed. A highway authority does not owe them a duty to protect them from their own failure to do so.

Mrs Gorringe suffered severe brain injuries when she braked near the crest of a country road, lost control and collided with an oncoming bus. She alleged that Calderdale Metropolitan Borough Council should have painted “SLOW” on the road or provided another warning. The road surface was sound, and the danger presented by the crest should have been apparent to a careful driver.

At trial, Mr Roger Thorn QC, sitting as a deputy judge, held the Council wholly responsible. The Court of Appeal, by a majority, dismissed the claim: [2002] EWCA Civ 595; [2002] RTR 446. Mrs Gorringe appealed.

The central issues were whether the absence of a warning amounted to breach of section 41(1) of the Highways Act 1980, and whether section 39 of the Road Traffic Act 1988 generated a common law duty of care to provide such a warning.

The appeal was dismissed unanimously. Lord Hoffmann delivered the principal analysis. Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood gave concurring speeches. Lord Steyn expressly agreed with all four Law Lords on the highway issues and the construction of the relevant legislation.

1. Per Lord Hoffmann, Lord Scott and Lord Rodger, the duty to maintain a highway under section 41(1) of the Highways Act 1980 is confined to repairing and keeping in repair the highway’s physical fabric. Providing information through signs or road markings is a different function. The disappearance of the “SLOW” marking therefore did not amount to non-repair. The road surface itself was not defective.

2. Per Lord Hoffmann, Lord Scott and Lord Rodger, section 39 of the Road Traffic Act 1988 imposes broad public law or “target” duties concerning road-safety programmes, accident studies and appropriate preventive measures. Those duties are not enforceable by an individual action for breach of statutory duty. They could not generate a common law duty to act where the common law otherwise imposed none.

3. The majority reasoning in Stovin v Wise [1996] AC 923 was applied. The mere possession of statutory powers or responsibilities does not make an authority liable for failing to confer a benefit or prevent a danger which it neither created nor undertook to avert. The contrary reasoning in Larner v Solihull Metropolitan Borough Council [2001] RTR 469, which contemplated liability for a wholly unreasonable failure under section 39, was disapproved.

4. Per Lord Hoffmann, the conclusion was confined to liability founded solely on an omission and a broad public law duty. A public authority may owe an ordinary common law duty where it has acted positively, assumed responsibility or entered a relationship recognised by the common law. The statutory framework may then qualify or exclude that independently existing duty.

5. Per Lord Hoffmann, Lord Rodger and Lord Brown, motorists must recognise obvious road hazards and drive at an appropriate speed. A highway authority may be liable if its positive conduct creates a trap or induces a careful motorist reasonably to rely on a misleading pattern. Nothing done by the Council created such a danger or expectation in this case.

1. House of Lords: In Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, the House unanimously dismissed the appeal and upheld the dismissal of the claim.
2. Court of Appeal: By a majority, the court held that the Council owed no relevant duty and dismissed the claim: [2002] EWCA Civ 595; [2002] RTR 446. Potter LJ would have found the Council partly responsible.
3. Trial: Mr Roger Thorn QC, sitting as a deputy judge, held the Council entirely responsible and treated Mrs Gorringe as blameless.