Gorringe v. Calderdale Metropolitan Borough Council

The House of Lords held that the claimant could not recover in private law for the council's omission to repaint a "SLOW" road marking or to erect additional warning signage. Section 41 of the Highways Act 1980 (the duty to maintain) is confined to the repair and upkeep of the physical fabric of the highway and does not extend to an obligation to provide traffic signs or road markings. Section 39 of the Road Traffic Act 1988 imposes broad public duties to promote road safety but is a target public law duty and does not, by itself, create or elevate a common law duty of care owed to individual road users. Absent a positive act creating a new danger, an assumption of responsibility or a special relationship, a highway authority's omission to take road‑safety steps will not give rise to common law liability.

The claimant, Mrs Gorringe, suffered catastrophic injuries when her car skidded over the crest of a rural/urban link road and collided with a bus. She sued Calderdale Metropolitan Borough Council, alleging (i) breach of the statutory duty to maintain under section 41 of the Highways Act 1980 because a prior road marking had not been repainted, and (ii) breach of a common law duty of care said to arise from section 39 of the Road Traffic Act 1988 (the council's duty to prepare and carry out road‑safety programmes).

The issues framed by the court were: (a) whether the duty in section 41 extends to the provision or maintenance of road signs and road markings; and (b) whether section 39, a broad public law or "target" duty, can give rise to a private law duty of care or otherwise raise the standard of the common law duty owed by a highway authority.

The House reviewed the historical distinction between misfeasance and non‑feasance in highway law and recent authorities including Stovin v Wise, Goodes v East Sussex, Larner v Solihull and the trilogy of public‑authority duty cases (Bedfordshire, Barrett, Phelps). The Lords concluded that section 41 is limited to repairing and keeping in repair the fabric of the highway and does not impose an obligation to install or maintain traffic signs or painted warnings. Section 39 was characterised as a broad public policy duty not intended to create private law claims; the court declined to permit a "parasitic" common law duty to arise solely because a public authority had been given a target duty. The Lords emphasised that liability in private law remains available where a public authority has created a new danger or assumed a relationship that gives rise to an ordinary common law duty of care, but those conditions were not present on the facts. The appeal was dismissed.

Appeal dismissed. The House held that (1) section 41(1) of the Highways Act 1980 is confined to repair and maintenance of the physical fabric of the highway and does not impose a duty to provide or maintain road markings or traffic signs; and (2) section 39 of the Road Traffic Act 1988 imposes a broad public law duty to promote road safety but does not, by itself, create a private law duty of care owed to individual road users. Absent a positive act creating a new danger or an assumed special relationship, the council was not liable in negligence for failing to repaint the marking.

Appeal to the House of Lords from the Court of Appeal: [2002] EWCA Civ 595 (2 May 2002). First instance: trial before Mr Roger Thorn QC (deputy judge) (trial judgment referenced in the reasons below).