Stovin v Wise

B e f o r e :

LORD JUSTICE POTTER LORD JUSTICE MAY and SIR MURRAY STUART-SMITH ____________________

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(Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Mark Turner QC (instructed by Hill Dickinson, Manchester) for the appellant Giles Wingate-Saul QC and Mark Laprell Esquire (instructed by Clarksons & Steele, Halifax) for the respondent. ____________________

HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________

Crown Copyright ©

Lord Justice Potter:

INTRODUCTION

This appeal concerns the statutory liability of a Highway Authority under s.41 of the Highways Act 1980 (“s.41”) and the extent of its common law duty arising in association with s.39 of the Road Traffic Act 1988 (“s39”). It is an appeal from the judgment of Mr Recorder Thorn QC sitting as a High Court Judge whereby on 22 February 2001 he gave judgment for the claimant Denise Gorringe (suing by a litigation friend) against Calderdale Metropolitan Borough Council (“the council”) in her claim for damages for personal injury suffered in an accident which occurred on 15 July 1996 on the B6113 road at Barkisland in West Yorkshire for which the council were the responsible highway authority. The judge dismissed allegations of contributory negligence raised against the plaintiff and made an order for an interim payment of damages in the sum of £250,000, which he stayed pending the hearing of this appeal. The judge refused the council’s application for permission to appeal, which was subsequently granted by this court. The nature of the road and the circumstances of the accident were as follows.

THE CIRCUMSTANCES OF THE ACCIDENT

The accident occurred at the crest of a hill on a section of the B6113 known as Greetland Road. Greetland Road runs in a direction from south-west to north-east carrying traffic between the villages of Barkisland and Greetland where the claimant had recently come to live. She was travelling north-east at the time of her accident. Greetland Road is a B class road of the older type, rural in character, following a course dictated by the contours of the land. However, the B6113 overall forms a link between the urban areas of Elland and Rippendon and is used as a by-pass route by traffic which wishes to avoid Halifax and Sowerby Bridge and serves as local link to the M62. Thus it is well used by traffic and, for the purposes of the Local Authority Associations Code of Good Practice for Highway Maintenance falls within the category ‘3b Secondary Distributor’ rather than ‘4a Local Roads’. The national rural speed limit of 60 mph applies, but, because of the character of the road, average traffic speeds are lower. The 85 th percentile speed on the straighter sections of the road was measured by the council as 48 mph. The relevant length of Greetland Road carried ‘hazard’ white centre line markings because of limited overtaking sight distance.

We have had the benefit of a number of police and experts’ photographs of the scene of the accident and the relevant stretches of road approaching and extending beyond it. We have also seen a video film following the route of the claimant on the day of the accident. In approaching the scene from the south-west, as the claimant did on the day of the accident, the driver reaches a point where the road ahead runs gently down into a dip at which point the road bends somewhat to the right and proceeds uphill to the crest where the accident occurred. Before the dip, the course of the road is fully visible to the bottom and up to the crest, but the climb up out of the dip is such that the driver has no view of the road beyond the crest, so that he or she is prevented from seeing a vehicle coming from the other direction until it is itself virtually upon the crest. The need for care approaching the crest is augmented by the fact that, at the crest, there is a left hand bend which may or may not have been perceived by a driver unfamiliar with the road from his or her clear viewpoint across to the crest before going down into the dip. The crest also presents a further hazard not apparent to the driver approaching it in that, at the apex, the change of gradient from uphill to downhill occurs in a length of no more than twenty-five metres. This presents the effect of a bump in the road to a driver who does not reduce speed to well below 50mph, such that the crest is known locally as ‘the Barkisland bump’. The effect of the bump at the material time was such that the wheels of a car exceeding 50 mph from the south-west would momentarily lose contact with the road, as a subsequent police test proved. At the time of the accident there were a large number of rebound impact gouge marks on the carriageway surface ten or so metres from both sides of the apex caused by vehicles ‘bottoming’ as they went over the bump. Also, although the camber prior to the crest was towards the nearside (being 1 in 130 towards the nearside at 7 metres before the crest), at the crest itself it became 1 in 31 towards the offside for a few metres before reverting to 1 in 18 towards the nearside at 10 metres. It was particularly important that a car travelling north-east should not stray to its offside at the crest because the road was not wide and, for traffic coming from the opposite direction, it narrowed slightly before the crest so that a wide vehicle, such as a bus keeping well into its verge, nonetheless effectively occupied its entire side of the road.

So far as signs were concerned, at the time of the accident, clearly visible in the police photographs taken later, there was in place just after the dip and 85 metres short of the crest, a hazard warning sign in the form of a red edged white triangle with two horizontal black bumps on the sign beneath indicating ‘Uneven Road’. This sign was visible to cars approaching from the south-west (as it was to the claimant) well back along the road before descending towards it, although on a sunny evening it would have been in shadow from trees. The sign itself was situated less than half the Desirable Minimum Stopping Sight distance from the crest according to current national standards.

At this point, it is pertinent to note that, as the judge found, there had been a white ‘SLOW’ marking painted on the road in the late 1980’s or early 1990’s at a point just before descent into the dip and about 175 metres short of the crest. It was no longer there by the time of the accident, whether by reason of wear or, as the judge found to be more likely, by reason of re-surfacing.

The accident occurred when the claimant, who was aged 35 at the time of the accident, was driving her two daughters aged 12 and 10 home from their aunt in Todmorton to Barkisland, where she had recently moved. The judge accepted evidence that she would have used the road no more than two or three times (not necessarily in the same direction) and that she was ‘in reality, a stranger to this potentially dangerous crest’. The precise speed of her approach along the road is not known and the judge made no finding in that respect (however, see further below).

The weather and visibility were good and the day was sunny and dry. The claimant drove along Greetland Road without any apparent difficulty, down into and out of the dip, until she was just short of the crest. As she approached it, something caused her to brake heavily and she lost control of her car, straddling the white line road markings so that she collided on the crest with a Fleetline double deck bus coming in the opposite direction on its own side of the road. There was evidence from the bus driver, eye-witness passengers, and a car driving behind the bus the driver of which had a view of the accident. All spoke of the claimant suddenly appearing in the road ahead out of control at the crest and skidding across to the wrong side of the road towards the front of the bus which braked and steered to its left into the grass embankment before impact, at which point the bus was almost stationary. It is not in dispute that the bus driver was driving at a reasonable speed and that he was not negligent in any way.

So far as the speed of the claimant was concerned, the police subsequently estimated her speed at the time of impact as 54 mph and, in their joint statement following exchange of reports, the experts stated that they had no reason to dispute those figures. The bus driver stated that as the claimant’s car appeared over the crest there was daylight between the road surface and both front wheels of vehicle. However, that evidence was rejected by the judge on the basis that, had her wheels left the road, there would not have been skid marks from the tyres of her car, as was in fact the case. The judge found that ‘she was very probably travelling at rather less than 50 mph’.

The tyre marks on the road, together with the thinking time and distance necessary to be allowed between perception of a danger and the application of the brakes indicate that, whatever it was which caused the claimant to apply her brakes and start to skid, must have been perceived by her well before any ‘bump’ effect or reverse camber at the peak of the crest could have affected her car. It is a matter for speculation whether the plaintiff decided to brake simply because she perceived that she was driving too fast for the left-hand bend of which she would have become aware as she approached the crest (if she had not been aware of it before) or, because she had perceived the upper part of the double-decker bus in the narrow road ahead beyond the crest. It may well have been a combination of the two. The judge did not make positive findings in that regard, though he observed that a driver unfamiliar with the area and coming up from the dip might not anticipate that there was a bend left beyond the crest. What is clear is that the plaintiff was driving on her correct side of the road prior to braking, but that upon braking her car skidded over to the offside of the road out of control into the path of the oncoming bus.

THE PLEADINGS

The case was originally pleaded simply as a claim in negligence and for breach of duty under s.41 of the 1980 Act. However, shortly before trial there was published the report of the decision of the Court of appeal in Larner –v- Solihull MBC [2001] RTR 469 ( “Larner” ) , following which the particulars of claim were amended and there was rash of belated discovery on the part of the council. The particulars of negligence and/or breach of statutory duty set out the various respects in which it was said that the council had failed to have adequate regard to conditions which constituted the crest/corner at which the accident occurred, a danger to which the council had failed to have ‘any or any adequate regard’. Reliance was place upon the existence and dimensions of the ‘extraordinarily sharp crest’ the ‘bottoming’ marks on the road surface either side of the Barkisland bump, the absence of a speed limit, the restricted Stopping Site Distance, the narrowing of the carriageway beyond the crest and the change of camber.

It was also alleged that the council failed to provide any or adequate warning signs of the existence of those hazards. In this respect, it was stated that the claimant’s case was not that the Highway Authority were under a statutory or common law duty to reconstruct the said road so as to remove the said hazards but were under a duty to warn approaching drivers of the existence of such hazards. It was that the only warning sign in existence at the time of the said accident was the ‘uneven road’ sign, which was too remote from the nearside edge of the carriageway and insufficiently prominent amongst the foliage overhanging the verge. It was asserted that the uneven road sign ought to have been positioned approximately 50-60 metres prior to the crest and mounted more conspicuously with a ‘road narrows’ sign either on the same post or preferably 15 metres thereafter together with painted ‘SLOW’ road markings at 60 metres and 30 metres from the crest in conjunction with ‘ripple ridges’.

It was further pleaded that the council should have imposed a speed limit of 30 mph in respect of the stretch of road on which the crest and bend were situated.

So far as the council’s administrative activity was concerned, it was pleaded that the council should have been aware of the dangers from (a) their own physical inspections of the stretch of road concerned (b) reports of other personal injury accidents communicated to them by the police (c) enquiries by the council of the police as to non-injury accidents which would not automatically be reported and (d) complaints from local residents of which complaints by a Beverley Haigh and George Bernard were identified.

Finally, it was alleged that there was a failure by the council (i) to carry out adequate inspections (ii) to discharge its statutory duty to maintain the road under s.41 of the 1980 Act, in respect of which it was alleged the council, having previously painted ‘SLOW’ signs on the road surface ‘immediately prior’ to the crest in approximately 1990, had failed to reinstate them after the road had been top-dressed. As already noted, the judge found that the ‘SLOW’ signs referred to were in fact a single ‘SLOW’ sign positioned as stated in paragraph 5 above.

In the defence of the council, so far as its duties were concerned, it was admitted that the ‘uneven road’ sign was located adjacent to the highway in the dip on the approach to the Barkisland bump. It was pleaded that the bump was a product of the actual contours of the land upon which the highway was originally constructed and that, if it represented a hazard, it was one which did not arise out of any misfeasance on the part of the council. Accordingly, it was said no action arose in negligence. It was further pleaded that the extent of the duty imposed on the defendant under s.41 of the Highways Act 1980 was ‘a duty to maintain’ the highway and none of the allegations raised against the defendant amounted to a failure to maintain. Finally, it was pleaded that if the claimant’s accident was caused or contributed to by the lack of maintenance, the defendant would rely upon the statutory defence afforded by s.58 of the Highways Act 1980 on the grounds that they took such care as, in all the circumstances, was reasonably required to secure that the part of the highway to which the action related was not dangerous for traffic, it being pleaded that the date of the last inspection prior to the claimant’s accident was 1st July 1996 when the highway was not found to be in need of maintenance.

Finally, there was an averment that the claimant’s accident was caused or contributed to by her own negligence.

THE COURSE OF THE TRIAL

At trial, the council abandoned its statutory defence based upon s.58 of the Highways Act 1980, relying upon two broad matters of defence. First, it persisted in its denial of any breach of duty under s.41 on the grounds that there was no failure to ‘maintain’ the highway as contemplated by that section. Second, while conceding that a common law duty of care could arise parasitically upon the provision of s.39 of the 1988 Act relating to the duty of a local authority to prepare and carry out a programme of measures designed to promote road safety (see Larner ), it could not be shown that the default of the authority fell outside the ambit of discretion given by s.39 and, in particular, it could not be shown that the council had acted ‘wholly unreasonably’. In this connection, the council’s belated discovery produced a wide range of internal documents which included a Highways Log Book which confirmed the painting of the ‘SLOW’ marking on the road in 1987; a document prepared in November 1992 ‘Calderdale Metropolitan Borough Council: Road Accidents Lengths of Road 1987-1991’ and subsequent council Road Safety Plans for 1994-1997; minutes of meetings and reports to the sub-committee of the council’s Highways and Technical Services Traffic and Transportation Sub-Committee of May and December 1994 and a report to that Sub-Committee of January 1995 dealing with road safety matters. They also produced in microfiche form their records of complaints which showed that they had not filed pre-accident letters of complaint from a Mrs Haigh, Mr Barnard and another witness for the claimant, Mr Booth. Finally, and importantly, they produced an ‘Accident Study B6133 Elland Road-Greetland Road’ carried out for the council by the Local Authority Consultancy at Leeds and sent to the council by letter of 14 July 1994 (“the LAC report”).

The council did not call individual witnesses to speak to the information decisions and policy revealed by these documents, and in particular any witness who would have been responsible for their implementation after May 1994 save for Mr Brown, who had only become actively involved in April 1995 (i.e. 15 months before the accident) as the engineer responsible for the council’s Traffic Management Section in its Transportation and Traffic Group. Much criticism was made by Mr Wingate-Saul QC for the claimant and by the judge of the quality of the council’s record keeping and the liaison between the various departments concerned with highway maintenance, traffic management and road safety.

In particular, each Road Safety Plan stated as follows:

In this respect, Mr Senior, the expert highways engineer who gave evidence for the claimant commented that there were no minutes of meetings, memoranda, etc, of a type that such an approach would engender. Further, the LAC report which was critical of the 1500m length of road which contained the Barkisland bump was not seen by the Highways Maintenance Department or acted upon until after the accident. That was because, in the course of its circulation, it had not been passed to Mr Brown, as he stated he would have expected, and had lain misplaced in the office of a Mr Hibbens in the Traffic Management Section. It only came to light after the accident. Further, while the council had taken over from its predecessor highway authority in 1986 a Highways Inventory of the signs, markings and street furniture on its highways, it had failed to maintain it. The maintaining and periodic overhaul of such an inventory was stated to be required by the Local Authorities Association (LAA) Code of Good Practice (1989) and it was the evidence of Mr Senior that in his view a highway system could not be properly managed without an inventory.

COUNCIL POLICY

Because, as argued before us, this appeal largely turns upon the common law liability of the council said to arise in parallel with its broad duty under s.39 to prepare and carry out a programme of measures designed to promote road safety, it is convenient before considering the judgment below to summarise the steps taken by the council to formulate and implement such a programme as revealed by the documents already mentioned in paragraph 17 above, supplemented by the evidence of Mr Brown. Following the coming into effect of the 1988 Act, the council commissioned a series of analyses in October 1990, November 1991 and November 1992 entitled ‘Analysis of Personal Injury Accidents on Lengths of Road in Calderdale’, identifying those lengths of road in the council’s district which were considered to have a road accident problem and which, following comparisons with available national and district ‘norms’, made recommendation regarding those lengths as to which a more detailed study was likely to identify a ‘cost effective remedial scheme’. The first analysis was based on figures for 1985-89, the second on figures for 1986-90, and the third for 1987-1991. These were compiled on the basis of personal injury accidents recorded and plotted by the council in the relevant five-year period a list being made of those where the expected rate was exceeded by more than 25%. The 1992 analysis identified the B6113, Elland Road/Greetland Road as justifying a further analysis of the accidents occurring during the hours of darkness. Following this recommendation, the council obtained the LAC report from Leeds dated July 1994. The analysis of accidents contained in it was not limited to accidents after dark and it covered the whole length of the relevant stretch of the B6113 i.e. 4.65 kilometres. Having referred to a number of steep rises through a series of moderately severe bends provided with double white lines on the stretch of road well prior to the accident, it describes the remainder (which included the scene of the accident) in these terms:

After examining the number of accidents occurring over the previous six years, the report observed that the level of accidents occurring in darkness and those in which skidding took place were at least a third higher than average whilst the other factors examined were not significantly different from the norm. It stated its conclusion that:

The LAC report suggested that a package of measures would be the best means of reducing accidents which should include (i) re-surfacing and/or re-construction of the road where necessary to improve ride quality and skid resistance and (ii) a comprehensive signing and lining scheme of a high and consistent level throughout the route, including improved carriageway definition. It recommended that the feasibility of the measures discussed be investigated and a scheme be prepared and implemented. That recommendation was not followed prior to the accident for the reasons explained by Mr Brown (see paragraph 20 above). However, the council incorporated proposed improvements to Greetland Road as a whole in their 1994/1995 bids for funds for local safety schemes.

The council had produced the first of its Annual Road Safety Plans in accordance with its statutory obligations under s.39 in 1991. Thereafter, the plan was produced in an updated form annually with details of proposed schemes as they were developed. It dealt throughout with ‘Sites for Concern’ listed in order of their priority for treatment on the basis of the original analyses of personal injury accidents on lengths of road, the length of road ‘Elland Road/Greetland Road’ moving up and down the list from year to year, but never reaching the top before the accident. Thus, in the Traffic and Transportation Sub-Committee minutes of February 1995, in a passage which encapsulated the policy of the council operative for a period of years preceding the accident, it was stated that the programme of highway improvement was:

The government-funded Local Safety Schemes which included the proposed improvement of Greetland Road as a ‘Site for Concern’, were not the sole source of funding for road safety measures within the council. There were two separate annual budgets which were available to pay for smaller and/or emergency works for safety purposes. One was an annual budget of £150,000 for Minor Traffic Measures (MTM) the other a budget of £15,000 for Minor Traffic Works (MTW) a small budget applied only for the maintenance and renewal of signs and white road markings. The MTM budget was stated in the Road Safety Plan for 1995 to be targeted at those groups of people and those roads where there had been a regular pattern of people being hurt which could be expected to continue unless the council intervened with safety schemes, such as ‘limited traffic calming measures at sites which give cause for local concern without affecting the programme of accident remedial schemes’.

In relation to the above three sources of funding potentially available to the council for remedial signage in relation to an identified danger spot, it was the evidence of Mr Brown (1) that the Greetland Road improvement scheme was one of a list of local safety schemes i.e. the ‘Sites for Concern’, proposed as part of the council’s road safety programme under s.39 and was one appropriate and necessary to be funded out of central funds under the prioritised list annually attached to the Road Safety Plans. Prior to the accident it had not reached the stage of such funding, although it had been put up for it in accordance with the council’s assessed order of priorities. The site of the accident had not been considered as an individual danger spot requiring any emergency or short-term treatment or expenditure outside the confines of that scheme because it was not identified as meriting it. (2) The MTM budget of £150,000 had come into being in 1993 in response to a request from council members that there should be a means of responding to the many requests for action at sites which gave cause for local concern but would be unlikely to be treated under the centrally funded improvement of ‘Sites for Concern’. He stated that whereas the identification and listing of ‘Sites for Concern’ was ‘officer led’ and dealt with the strategy or policy of measures necessary to meet a specific accident reduction target, the MTM programme was ‘public led’ and utilised for ‘stopgap’ measures in respect of sites which might or might not have an accident record which was better than those sites included in the Sites for Concern, but had been the subject of complaints from members of the public.

(3) The MTW budget of £15,000 was what was called a ‘Maintenance Scheme’ budget kept for the maintenance and renewal of traffic signs and white road marking. Mr Brown stated that, had there been a notification from the police that a sign was needed or was missing, the council would act on that advice and provide signs from the MTW budget. Mr Brown also said that, if there was something which was a potential danger but susceptible of a cheap and simple ‘quick fix’ solution as an interim measure before attention could be given under a local safety scheme, it would come from the MTW budget. Following the accident, that was in fact the source of funds for the interim adjustment of the position of the ‘Uneven Road’ sign and the painting of a 'SLOW’ marking on the road beside it.

THE JUDGMENT BELOW

The reserved judgment of the Recorder consisted of some 241 short numbered paragraphs presented under some twenty headings. Its style was in places idiosyncratic and, throughout its length, it lost no opportunity to criticise the council, in particular in relation to its system for highways inspection. It is also the case for the council on this appeal that in various places the judge recited, and in part relied on an inaccurate summary of the evidence, always to the disadvantage of the council. I will turn to those matters later, having considered the legal basis upon which the judge found the council liable. At this stage it is necessary to summarise the judgment at some length, concentrating on those parts which go to the legal basis of the liability found or which have given rise to particular criticism by Mr Turner QC who appeared for the council below as well as on this appeal.

In paragraphs 2-17 the judge dealt with the facts of the accident. In the light of my own recitation of the facts, these paragraphs need no further reference save to say that, at the end of that section the judge observed:

In this respect, the judge’s eventual conclusion as to why Mrs Gorringe lost control was contained in two short paragraphs near the end of his judgment under the heading ‘No Contributory Negligence Proved’ as follows:

Having considered the position of the council as highways authority, the judge observed that as from May 1989 it had become subject to the statutory obligations which he summarised as an obligation:

He then went on to summarise the two avenues for liability under s.41 and in respect of Larner -type negligence.

He then mentioned the council’s chain of command referring in particular to the ‘Highway Maintenance Group’ with its three sub-divisions ‘Highway Maintenance’, ‘Design & Contracts’, and ‘Street Lighting’; the ‘Transportation & Traffic Group’; and the ‘Road Safety’ Group’ which the evidence showed was concerned with such matters as education, training, publicity and school crossings.

Having referred at paragraph 35 to the Annual Road Safety Plans and their references to the ‘Multi-Agency Approach’, he observed:

The judge than referred to the maintenance history of the three mile stretch of Greetland Road which included the accident site, which was recorded in a plan kept by the defendant as from at least 1990, up to and including 1996, when the accident occurred. This showed that ad hoc maintenance had been carried out on various sections of the road which did not include ‘Section 7’ a 690m stretch which encompassed the scene of the accident. The judge then referred at paragraphs 50-56 to what he described as ‘pre-accident Warnings re Greetland Road’. He referred to the council’s road safety reports as identifying the 4.65kms length of Greetland Road as having the fifth worst record of safety in 1991 and the second worst in 1992, until adjusted to eighteenth in 1993 when an error in the figures had been detected. He also referred to the LAC report of July 1994 observing that despite its being an accident study, it had not been forwarded on to Highway Maintenance, having stayed within the Traffic & Transport section in ‘a bureaucratic abyss’ (see the evidence of Mr Brown at paragraph 20 above).

It should be noted at this point that the judge nonetheless found that, before the LAC report had been received, a 1994 bid had already been identified for £40,000 for general improvements to the B6113 which would require funding and approval by the Department of Transport and he concluded that he did not find any liability upon the council for its inability to implement the scheme advised in the LAC report, or its like, prior to the accident (paragraph 201). Nevertheless, he emphasised the relevance of the LAC report as putting the council on notice ‘that something ought to be done urgently, perhaps even as a temporary measure, about this road’.

In this context at paragraphs 57-97, the judge went on to deal with the existence of the Barkisland bump which he said was well known to people in the area as being ‘a crest or peak which caused both bottoming or grounding’ and was a hazard which might reasonably foreseeably cause personal injury. He then referred to a post-accident report carried out by a WPC Moore relying upon certain statistics in her report without reference to the fact that, on the agreement of the experts, the accident figures quoted were erroneous, to which question I shall return later under a specific ground of appeal. He also referred to the opinion of Consultants, Bertram Sheppard, engaged by the council to advise them after the accident in 1997, and who criticised the poor standard of the surface generally and confirmed that the wheels of a car would lose contact with the road at 50mph over the bump. Turning to the evidence of Mr Senior, he noted his description of the ‘bump’ as an ‘extraordinarily sharp crest’ of an ‘extreme and sub-standard nature’, aggravated by an adverse camber of 1 in 28 as traffic rounded the crest; his statement that the Stopping Sight Distance (SSD) was less than half that desirable approaching the crest; the further aggravating feature that the road was also a bus route where a double-decker bus was wider than some parts of the traffic lane provided for it on its approach from the opposite direction; and his consequent opinion that there was a clear need for specific ‘SLOW’ carriageway marking on the gradient approaching the crest. The judge then added some observations of his own as to the local dangers presented by the fact that the farm near the scene had a herd of cows which on occasions would have to cross the road just to the east of the bump, that ponies might also be exercised on that stretch of road and that ramblers might also be present. Finally, he observed that the bus stop situated just to the north side of the crest was in a dangerous position.

As to complaints, the Judge referred to the written complaint of a Mrs Booth who said that in about 1990, she had written to the council’s Highways Department about the hazardous nature of the bump and her recollection that it was because of this letter that the ‘SLOW’ mark was painted on the road just before the dip. Also to the complaint of Mrs Haigh who had written to the council in the early 1990’s, but of whose complaint the council had no record. Finally, to the complaint of Mr Barnard, which was written immediately following, and consequent upon, the claimant’s accident. The judge also held that Mr Barnard had written several similar letters to Technical Services before the accident, of which again the council had no record.

The Judge then embarked upon a lengthy and detailed excoriation of the system of inspection and reporting within the council’s Highways Department, which he said, by the standards of 1991-1996 had ‘inexcusable, wholly unacceptable, and exceptional failings.’ The judge found that there was an absence of proper training and supervision of staff and that there was no definition of the limits and extent of their responsibilities or the managing and sharing of over-lapping interests and endeavours as between the Highway Maintenance Group and the Transportation & Traffic Group. In relation to the inspection of surface ‘SLOW’ signs and, in particular, the sign present prior to the dip in the late 1980’s and early 1990’s, the judge found that there was a fatal division of responsibility within the Highway Maintenance Group between the Highways Inspectorate (on the basis of the evidence of a Mr Gibson from that department who said he would leave the question of the renewal of faded ‘SLOW’ signs to Street Lighting), and the Street Lighting Inspector, Mr Dawson, who did not regard ‘SLOW’ signs as part of his duties during his monthly inspections. The judge concluded (at para 156) that:

The Judge then considered the evidence of the experts, stating that he preferred the evidence of the claimant’s expert, Mr Senior to that of the council’s expert Dr Searle, for which he gave headline reasons, to which I shall return in relation to a specific ground of appeal below.

Under the heading ‘The early warning sign in place’, the Judge found, on the basis of Mr Senior’s evidence that the ‘Uneven Road’ sign was quite inadequate on its own to indicate a particular need for caution ahead in that:

The Judge stated that either a ‘Bend’ sign should have been erected to give advance warning of the bend but, most appropriately, there should have been a clear ‘SLOW’ warning painted on the road.

Under the heading ‘The Law’, the Judge held that the failure to maintain the previous ‘SLOW’ warning road marking was a failure ‘to maintain the highway’ pursuant to s.41. He then turned to consider s.39 liability as propounded by this court in Larner . In a passage, which is not wholly easy to follow, he referred to a submission of Mr Wingate-Saul concerning the distinction between the decisions of a local authority which are ‘policy’ decisions and those which are ‘operational’, and said that in his view, the claimant’s case did not require a decision based on any such distinction. He said:

The Judge then asked himself whether the original ‘SLOW’ road marking had been obliterated and not reinstated or whether it had just faded through traffic use. He decided that it scarcely mattered but, on the balance of probabilities, it was probably a combination of both. In either event, he found that the council were liable under s.41 for failure to maintain the highway and keep it safe.

He then turned to the question of liability under s.39 and stated:

The Judge then referred to the council’s explanation of how the road improvement schemes indicated in the LAC Report were delayed in the overall priority of the council programmes because of the costs and funding involved until eventually the subject of the local safety scheme which evened out the bump and improved the crest in November 1998. He said that he did not find liability on that basis as ‘this simply does not fall within the terms of Larner liability’.

However, he added under the heading ‘Relevance of the LAC Report’:

Later he said:

Finally, the Judge dealt with the question of contributory negligence. In this respect he said (paragraph 227):

He then concluded as already quoted at paragraph 30 of this judgment.

THE GROUNDS OF APPEAL

The Grounds of Appeal, as developed by Mr Turner QC for the claimant, are best considered under six heads, the first two of which relate to what is said to have been a misunderstanding by the Judge of the extent of the council’s statutory and common law duty as highway authority, resulting in a misapplication of the law to the facts of the case. The grounds are as follows.

I propose to deal shortly with ground (6) first, because it is a matter which has caused me some concern but which ultimately I do not find to have been established. We were told, and it was not in dispute, that virtually at the outset of the hearing, in respect of liability, the Judge expressed the firm view that the claimant’s view was ‘an all or nothing case’, thereby indicating that in his view the claimant was herself in no way to blame for the accident. In the light of the facts as I have recounted them, this was plainly an unfortunate remark. Not only does it seem to me a surprising view to have formed on the particular facts, as to which there was virtually no dispute in the witness statements or experts’ reports. It was also bound to convey a certain element of pre-judgment, at least on one aspect of the case. Having been taken at some length by Mr Turner through the judgment, it is also clear that such demonstrable errors as there are were all in favour of the claimant. In addition the judgment is undoubtedly couched in terms highly critical of the council’s system of inspection, record keeping, lines of communication and internal procedures. That said, it is clear that a good deal of criticism was justified (Mr Turner has not sought to suggest otherwise) and I do not consider that there is any indication of bias, as opposed to irritation over the degree of late disclosure and apparent internal administrative muddle. Nor do I consider that such mistakes or omissions as have been demonstrated establish bias or the appearance of bias. Mr Turner barely pursued the suggestion that the judge’s interventions were other than proper. Accordingly, this ground of appeal has not been made out.

Nor do I think that ground (4) has been made out. As I have already indicated, the Judge stated his preference for the evidence of Mr Senior over that of Mr Searle in headline terms relating to their rival qualities and qualifications, rather than explaining why he preferred the views of one over the other in relation to the various issues on which they had differed. I do not think that in the circumstances the Judge’s approach was inappropriate. There was no substantial issue between the experts in relation to speed, visibility or the physical details of the scene of the accident. In relation to the broad issue of importance, namely the necessity for and the adequacy of the signage, it is plain the Judge preferred the views of Mr Senior because he was a well qualified former road engineer with practical experience in that capacity, whereas Dr Searle was a Road Traffic Act Investigator who has pursued a career more concerned with research and post-accident analysis. This was not a case where the strictures in Flannery, so frequently now relied upon as a ‘make-weight’ in appeals to this court, are properly applicable.

I turn now to Ground (3) the errors and omissions of fact said to be contained in the judgment. I propose only to deal with those which appear to have any substantial bearing on the issues which have been canvassed before us.

(a) The judge stated at paragraphs 5 and 6 that, at the time of the accident, both visibility and the road surface were far from good. It seems to me that, in relation to visibility at least, his remark was aimed at the extent of visibility around the corner at the crest. Equally, his reference to the road surface probably referred to the existence of the ‘bump’. Whatever the position in that respect, however, the police report stated 'visibility: good (fine and dry)' and, in respect of the road surface, 'surface type and condition: tarmacadam inset with granite chippings in good condition'.

(b) At paragraphs 67 to 69 of his judgment the Judge referred to the commentary of a Mr Campbell from the consultants Bertram Sheppard in relation to a video recording taken after the accident relating to the whole length of the B6113. He quoted Mr Campbell's references to the poor standard of the road surface and the fact that the wheels would lose contact with the road at 50mph going over the bump. However, so far as this accident was concerned, there was no evidence that the surface of the road made it a hazard for a driver unaware of the crest or that it was responsible in any way for the wheels of a car losing contact with the road if it passed over the bump at much more than 50mph. It was the unchallenged evidence of Dr Searle that the condition of the road surface played no part in the accident.

(c) In quoting the views of Mr Senior, and his statement that the bump was of an 'extreme and substandard nature' by comparison with the technical Advice Notes and Directives of the Department of Transport, the Judge did not mention or take account of the fact that such notes applied to new roads and not to the profile of old-established country roads. He adverted to the adverse camber of 1 in 28 as traffic rounded the crest without mentioning that the average camber over the length of the road preceding the crest on which the claimant lost control, was foreseeable and in any event not causatively relevant to the accident.

(d) Turning to the question of reports and statistics, it is complained that the Judge's quotation from the comments in the LAC Report was an unbalanced assessment of what such report indicated in relation to the scene of the accident as opposed to the whole 4.65k. length of the road to which it related. No conclusions could be drawn from it as to conditions at the specific location of the accident. Further it was the uncontradicted evidence of Mr Brown that the figures for 1991 and 1992 upon which the report was largely based had subsequently been discovered to be overstated by reason of an underestimate of the level of vehicular traffic using the road. The Judge criticised the council’s failure to carry out an accident analysis in response to the report. However, he failed to point out that the recommendation for an accident analysis in the 1992 LAC’s report was limited to accidents occurring in darkness (whereas the claimant's accident occurred in broad daylight); and that only one accident had occurred on the crest in darkness in 10 years. Accordingly, as Mr Turner submits, it was not clear that a further analysis would have had any causative impact upon the council's approach to the accident location. Finally, the Judge did not mention that the council did in fact incorporate Greetland Road as a whole into their local safety schemes bid for 1994/95.

(e) The Judge's analysis of the LAC report in paragraphs 54-56 of his judgment is also said to lack balance. The Judge failed to record that the author of the LAC report, Mr McKay who was called to give evidence had stated that the condition of the B6113 in terms of level of hazard was 'a very typical rural road for any of the districts'. While the Judge highlighted various of the general descriptive comments in the LAC report as making 'disturbing reading', he again failed to record the report made no mention of the site of the accident as being one of particular concern or Mr Mackay’s statement that, had he considered it was, he would have drawn specific attention to it in the report. The Judge also did not mention that the council had already submitted the B6113 in the list of local safety schemes to be considered by the Department of the Environment before the LAC report was received, or that the road consistently appeared in the list of local safety schemes and ascended the order of financial priorities in accordance with the general road safety policy.

(f) In dealing with the evidence of WPC Moore, who after the accident had conducted her own research into the level of accidents on the Greetland Road over the previous ten years, the judge referred to the finding that there had been thirteen personal injury accidents (in 54% of which misjudgement of speed and distance had been a factor) without recording that the figures related to the length of the whole road either side of the bump and without recording the agreement of the experts in their joint report that there had been four recorded personal injury accidents at the site of the Barkisland bump itself. Mr Turner suggests that this misled the judge into treating the bump as more potentially dangerous than it was.

(g) In dealing with the letters of complaint at paragraphs 83-97 of his judgment criticism is made that the Judge

S.41 OF THE HIGHWAYS ACT 1980

In my view the Judge was wrong in his conclusion that by failing to repaint or replace the ‘SLOW’ marking painted on the road in the late 1980's or early 1990's after it had faded or become obliterated, the council was in breach of its statutory duty under s.41.

S.41, so far as material, provides:

The scope of s.41 was authoritatively addressed by the House of Lords in Goodes v East Sussex County Council [2000] 1 WLR 1356 . In that case the context was a very different one, namely the failure of an authority to salt or grit the road when there had been a weather forecast of freezing conditions. The House of Lords held that the duty to 'maintain the highway' under s.41(1) was an absolute duty to keep the fabric of the highway in such good repair as to render its physical condition safe for ordinary traffic to pass at all seasons of the year, but that it did not include a duty to prevent the formation of ice or remove the accumulation of snow on the road. Lord Hoffman stated at 1361B that:

He considered and rejected the submission of counsel for the claimant that because public expectations change, and what might have been regarded as sufficient maintenance in Victorian days would not necessarily be adequate now, the duty to maintain the fabric of the road in good repair should be extended beyond a level that simply satisfied the objective test formulated by Diplock L.J. in Burnside v Emerson [1968] 1 WLR 1490 and 1496-1497:

See 1365H-1366C; also, to like effect, per Lord Clyde at 1369A-C.

The painting of a ‘SLOW’ sign on the surface of the road may well operate as a warning to a road user, but it does nothing by way of repair to the physical or structural condition of the highway or to render it more or less passable for the ordinary traffic of the neighbourhood without danger caused by that physical condition. It seems to me that it would be untenable to suggest that the 'inhabitants at large' prior to the Highways Act 1959 by reference to whose exemption from liability for non-repair, the liability of the highway authority is to be judged (see s.298 of the 1959 Act), would have been under any duty to paint warning markings upon the road as part of that liability.

In Lavis v Kent County Council 90 LGR 416, a case in which the claimant sued a highway authority in negligence for failing to erect signs warning of a bend in the road, the Court of Appeal considered an application to strike out the claim in negligence in relation to what was alleged to be an operational rather than a policy decision on the part of the authority. Reference was also made to an attempt in the pleadings to place reliance on s.41, in respect of which Steyn L.J. said:

In my view, the position must be the same in relation to the painting of markings upon the surface of the road for a similar purpose and conveying a similar message, but without either the purpose of effect of carrying out a physical repair. In those circumstances, I consider that the Judge was wrong to hold the council liable for breach of s.41. The Judge stated that he considered that there was a 'clear and obvious liability' (see paragraph 187 of his judgment), and reference to the transcript shows that, within a few moments of Mr Wingate-Saul's opening, he expressed the strong view that he thought it 'was beyond question' that the meaning of the word 'maintain' included maintaining signs painted on the road. Mr Turner has argued that this must have conditioned the judge’s approach throughout the case and created a degree of impatience on his part that the council continued to defend the proceedings although it did not seek to rely upon the statutory defence under s.58 of the 1980 Act. Whether or not that is so, the structure of the judgment of the Judge is such that he plainly considered in detail the scope and nature of the council’s inspection system in relation to the reasonableness of the council’s conduct when dealing with the issue under s.39, to which I now turn.

S.39 OF THE ROAD TRAFFIC ACT 1988.

The Law

The existence and scope of a highway authority's common law duty of care parasitic upon or parallel to its statutory duty under s.39 of the 1988 Act as subsequently amended has recently been the subject of careful consideration by this court in Larner .

S.39, in the form in which it was in July 1996, provided:

The claimant's case in Larner was on broadly similar lines to that of the claimant in this case. The court dealt with the provisions of s.39 as amended by s.279 of the Greater London Authority Act 1999 in respects which seem to me immaterial to the outcome of this appeal. The complaint was that the council should have erected an advance warning sign well back from the junction which she was approaching, so as to place her on notice that she had to give way to traffic on another road which had precedence and that its failure to do so was a breach of its common law duty of care existing concurrently with the statutory duty imposed by s.39.

The court observed per Lord Woolf C.J.:

Having referred to the well known speech of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 736 and to the observations of Lord Hoffman in Stovin v Wise [1996] AC 923 at 952H-953A, Lord Woolf said as follows:

As Lord Browne-Wilkinson also said in that case at 739:

Having also referred without quotation to the speeches of Lord Slynn of Hadley in Barratt v Enfield LBC [1993] 3 WLR 79 and of Lord Slynn and Lord Clyde in Phelps v Hillingdon LBC [2000] 3 WLR 776 which, like the Bedfordshire case, were both cases concerning common law duties alleged to arise in relation to the statutory duty of local authorities in respect of children in care, Lord Woolf continued:

In Stovin , Lord Nicholls listed (at 939G to 941C) the reasons why he considered that it would be fair and reasonable to impose upon a highway authority aware of a danger, a common law duty to act as a reasonable authority would act in the circumstances towards road users exposed to that danger. It is not necessary to set those reasons out here, save to say that Lord Nicholls envisaged that:

Lord Nicholls stated that he reserved his view on what the position would be if an authority did not know, but ought to have known, of the existence of a danger.

The Judge’s Approach

On the basis of those authorities, it seems to me that it was first necessary for the Judge (1) to ascertain what measures were taken by the council to fulfil its statutory duty imposed by s.39, (2) to ascertain whether in doing so, it was in breach of a concurrent common law duty, in relation to which it was necessary (3) to establish whether measures to alleviate what he had held to be an obvious danger known to the council were rationally not considered to be appropriate. In relation to the first question, the steps taken by the council in pursuance of their s.39 duty were and are in broad terms, clear. I have already described them at paragraphs 21 to 27 above. Furthermore, they were the subject of an express finding by the Judge that the council were not to be regarded as in breach of duty by having failed to carry out the overall scheme of improvement devised for the stretch of road which included the scene of the accident. The question for this court, therefore, seems to me to be this. Bearing in mind that finding, was there properly room for a finding that, by failing to take inexpensive steps to alleviate the danger to traffic represented by the crest with its various characteristics, in particular by painting a warning ‘SLOW’ sign or signs upon the road on the approach to the crest, the council acted wholly unreasonably by taking no action in the face of a known danger. In answering that question, it is necessary to bear in mind (a) the wide discretion given to the council under s.39, (b) the general reluctance of the court to impose the duties of care on a highway authority, (c) the burden of proof upon the claimant to show unreasonableness in such a case.

In answering that question, I start from the point that it would be quite wrong to disturb the Judge's findings of fact as to the difficult and dangerous hazard presented by the combined summit, bump and bend on a much used road with a 60mph limit, or his acceptance of the evidence in this respect of Mr Senior who had expressed himself in clear terms. Having set out the details in his report in which he described the hazard as 'potentially dangerous', Mr Senior had confirmed in evidence that it was 'an extraordinarily sharp crest' of 'an extreme and sub-standard nature'. No witness on behalf of the council had expressed a contrary opinion. Dr Searle did not to any substantial extent challenge the factual details or measurements. Mr Watkins, the engineer in the council's technical service department who lived nearby and later relocated the hazard warning sign and painted ‘SLOW’ back on the road, agreed that the Barkisland bump was a severe crest, which represented a significant and unusual hazard. Finally, Mr Brown who also knew the road well, agreed that 'the bump and the bend and the set up for eastward travelling traffic were hazardous'. It must be acknowledged that, at the same time, Mr Brown said there were similar hazards along the 4.65k. length of the Greetland Road. However, no one so much as suggested that there was any equivalent of the Barkisland bump itself which could cause a vehicle to lose contact with the road at 50 mph at a point where the road changed to a reverse camber.

That being so, it seems to me that, while there were aspects of the judge’s judgment which were either in error or failed to identify matters relied upon by the council (see paragraphs 52-58 above), he was fully entitled to form the adverse view of the hazard which he did, and to find that it represented an obvious danger to north-east bound traffic independently of the number of personal injury accidents it had generated. He was also entitled to find that it was a danger of which the council knew, not just because it had received complaints in the past but, more particularly, because the road was notorious to persons who used it, including council employees of the Highways Department. Various witnesses, including Mr Brown himself, spoke to the Barkisland bump effect and it was stated to be a known as a spot where certain motor cyclists and drivers deliberately drove at over 50 mph for the thrill of achieving that effect. That is not to say that it had proved to be more dangerous than certain other points on the B6113 from the point of view of the number of personal injury accidents recorded. Nonetheless, it was observably dangerous by the standards of an experienced highway engineer (Mr Senior), hazardous according to Mr Brown and notorious in the neighbourhood.

The Judge was also satisfied, justifiably upon the evidence before him, that it was open to the council, independently of its long-term schemes which required central funding, to take alleviating measures by painting one or more ‘SLOW’ signs on the surface of the road for minimal expenditure out of local funds and that, following the accident, the position of the hazard sign had been adjusted and a ‘SLOW’ sign painted upon the road on the view of Mr Brown that an additional warning sign was indeed required; and this for the sum of no more than £200. In those circumstances, it seems to me that the claimant plainly raised a sufficient case for the council to have to answer as to whether measures of this kind had been rationally considered inappropriate prior to the accident.

Mr Turner has rightly submitted that it was clear from the evidence of Mr Brown and the documents disclosed by the council and listed at paragraph 17 above that the council were proposing to deal with measures along the B6113 on the basis of an overall programme of major works improvement in respect of the lengths of road listed as ‘Sites for Concern’ for which central funds were required and that this programme progressed from year to year in accordance with a rational scheme of priorities, being finally achieved some two years after the accident. He goes on to submit that this was a sufficient compliance with any broad common law duty arising in parallel with s.39, it being a matter for the discretion of the council as to what criteria it adopted for schemes of road improvement, including signage. He criticizes the judge for the passage in paragraph 194 of his judgment (see paragraph 45 above) where he referred to the council’s failure to prepare a programme of measures designed to promote road safety ‘in respect of this ‘SLOW’ sign’. Mr Turner submits that the passage demonstrates the judge’s misunderstanding and erroneous rejection of the council’s proper use of personal injury accident statistics to determine its programme of road improvement measures (including the necessity for signage) according to priorities determined on that basis and conditioned by budgetary resources. That method did not indicate that the accident scene was one of particular danger and the council was not aware of its being dangerous on the criterion of personal injury statistics.

Mr Wingate-Saul on the other hand, submits that the judge was correct to regard that as an insufficient answer for the following reasons. He submits, rightly in my view, that in performing its statutory duty under s.39 to prepare and carry out a programme of road safety measures, the consideration of the highway authority should not be limited to long-term measures of road improvement which must wait upon the (often distant) prospect of central funding, but should extend to at least considering the question of whether and how far in the interim it maybe necessary to install, maintain or improve signage at points of obvious danger open to alleviation at low cost out of local funding.

The witness from the 'thinkers' as opposed to the 'doers' within the Highways Department, of whom the judge had heard only Mr Brown, was not able to speak to any individual consideration of the position of the crest as a candidate for alleviation by improved signage ahead of the proposed programme for road improvement. Nor was or did any other witness. Indeed, insofar as the Judge heard from the ‘doers’ of the highways inspection staff in the Highways Maintenance Section, (whose concern was with the physical state of the road and not the adequacy of the signing), he simply heard, in effect, that that was no concern of theirs. So far as the 'thinker' Mr Brown was concerned, (whom the judge commended for his frankness) he had acknowledged non-receipt of the LAC report, thanks to the ‘bureaucratic abyss’ into which it fell for two years, and had therefore not had the opportunity to consider it, let alone to forward it on to Highway Maintenance with any recommendations for inspection and consideration of the crest (or any other point on Greetland Road) as an individual hazard calling for short term alleviation, had he seen fit to make it. He stated in evidence that he would have thought 'as a minimum' that he would have asked the highways inspector ‘to go and look at it’ (i.e. the 1.5km stretch of road in which the scene of the accident was situated).

It is true that Mr Brown was generally resistant in cross-examination to a suggestion that it would have been likely that work of signing would have been done on an interim basis at an isolated site in advance of the programme of works intended to be carried out over the relevant length of road. However, when pressed on the question of the feasibility of installing £200-worth of signs on the approach to the crest as an interim measure out of local funds, Mr Brown stated as follows in cross-examination:

Thus, Mr Wingate-Saul submits, the judge was right to deal with the matter as an obvious danger which could and should have been coped with by the council on a short term basis outside the confines of the overall road improvement programme and that it was ‘wholly unreasonable’ for the council not to do so.

Summary and Conclusion on s.39

Taking stock, it seems to me that the position is as follows. What the council had shown was that, in setting about performing and subsequently putting into operation, its statutory ‘target’ duty under s.39, it had instituted and put into effect a rolling programme of road improvement by way of upgrading in the course of which it would no doubt attend to the question of signing or re-signing such hazards as existed on the roads in its area. With a view to performing its duty the council quite properly sub-contracted to the Leeds Authority, which was better equipped to perform such studies, its duty under s.39(3)(a) to carry out studies into accidents arising out of the use of vehicles, in the light of which the council was obliged to take such measures as appeared to it appropriate to prevent such accidents (s.39(3)(b)). Under those studies the roads of the council were divided up into various lengths or sections the safety of which were assessed by the criterion of the number of reported personal injures accidents occurring within them and this was a nationally applied criterion accepted by the experts as appropriate. Upon the basis of those results, the council drew up a priority list of the stretches of road to be upgraded according to the availability of funds procured by bids to central government in respect of major works or from the local budget for road improvement, in respect of minor works and took proper steps to progress those bids.

However, what the council did not do, or apparently consider necessary, under its statutory duty ‘to carry out a programme of measures designed to promote safety’ (s.39(2)(a)), was to provide for any system of inspection or assessment for the alleviation or ad hoc improvement of any individual point of danger or local black spot within the stretches of road considered by Leeds which might not receive attention for a long time under the council’s overall scheme of rolling improvements to stretches of road, but which nonetheless might be alleviated in the short term by inexpensive measures of signage alone, of which, on the evidence before the judge, the Barkisland bump presented a glaring example. For such measures the council simply relied on the existence and weight of public complaint in respect of which it kept no proper records and (as the judge held) had succeeded in losing a number of written complaints received (see paragraph 38 above). It was neither the function nor the concern of any of the Inspectorate in the Highways Maintenance Department.

The judge rightly found that, whether or not carried out efficiently, the system of road inspection by the Highways Maintenance Department, confining itself as it did to the physical state of the road surface and verges, and with no other consideration being given to the adequacy of current signage or markings either by the ‘thinkers’ or the ‘doers’, epitomised the absence of any policy in respect of short term signage measures to alleviate individual points of known danger which he found the accident site to be.

So far as the Traffic Management Section was concerned, he found that the one report (the LAC report) which on the evidence should and would have galvanised Mr Brown into a more detailed consideration of the relevant stretch of road (and thus would have directed attention to the individual site on the basis of the comments in that report) was lost in a ‘bureaucratic abyss’ until after the accident; and all this in a context where the proclaimed policy of the council that, internally, it operated a ‘multi-agency approach’ was in fact non-existent. Finally, he found that the moving of the hazard sign, coupled with the painting of the ‘SLOW’ marking on the road which the council judged appropriate prior to the road’s long-term improvement (and the judge held would have been sufficient to avoid the accident), was and could have been provided for less than £200 out of local funds.

In Larner the Court of Appeal expressly endorsed the view of Lord Nicholls as to the need to preserve, in parallel with the statutory powers and duties of a highway authority, a circumscribed common law duty to alleviate known dangers and that such a duty could exist in parallel with the broad target duty under s.39(2) to ‘prepare and carry out a programme of measures designed to promote road safety’. The broad discretion given to a local authority in that regard, as made clear in Larner , will enable it to justify non-action in relation to the failure to take a particular measure of road safety if it appears that, having rationally considered the need for such a measure it did not regard it as a step necessary or proper to be taken prior to the date when the claim arises. Such a decision will readily be justified where the reasons advanced are broad reasons of policy relating to budgetary considerations and proper prioritisation of measures within the overall area for which the authority is responsible. However, in the face of a known and obvious danger, the more difficult it will be for the council to demonstrate that it was justified in taking no action within the scope of its broad discretion.

In the case of Larner , there was ample material available to the judge at first instance to find that, in the words of Lord Wolff, “the measures were rationally not considered to be appropriate”. In this case the judge justifiably found that while there was an adequate and rational policy in respect of the long-term improvement of stretches of road, there was a total absence of any policy, and indeed no consideration had been given, in respect of measures for the short-term alleviation of obvious dangers by inexpensive signage on an interim basis pending long term road improvement measures. The only trigger for such action was public pressure rather than council judgment. Furthermore, the ‘SLOW’ sign considered necessary some years earlier had been eradicated, unrecorded, and without any consideration given to its replacement. In these circumstances it seems to me that it was open to the judge to hold that the failure of the council to address a notorious danger of which it knew and which it had the means immediately to alleviate was a ‘wholly unreasonable’ failure to act within the purview of the observations in Larner .

That being so, subject to the questions of causation and contributory negligence to which I now turn, I consider that the appeal on liability must fail.

CAUSATION

The judge concluded on evidence he had heard that the claimant was normally a careful driver and that she was not familiar with the road. She also had her children aboard. In those circumstances, he held that, had there been present (as he held there should have been) a large white painted ‘SLOW’ sign on the carriageway ahead of her some 175 yards before the corner, she would have acted upon it by slowing down, thus avoiding the accident. Mr Turner has submitted that, not having heard any evidence from the claimant, such a finding, which depended entirely upon inference, was not justified, in particular on the basis that a ‘SLOW’ marking at that point might well have been taken to refer to the dip ahead, of which she would have been well aware, rather than the hazard of the crest. I do not accept that submission. First, the council plainly considered that the repainting of the ‘SLOW’ sign in that position following the accident was appropriate to the hazard ahead (as Mr Senior also stated). Second, the judge’s finding was essentially that, in the light of the claimant’s character as a careful driver, and with no apparent urgency in her journey, she would in the circumstances have slowed down to a speed at which she would not have been going too fast to negotiate the crest safely on her own side of the road. In my view that was a finding which the judge was entitled to make and it should not be disturbed.

CONTRIBUTORY NEGLIGENCE

I find myself quite unable to agree with the finding of the judge that the claimant was not contributorily negligent. She had, on any view, approached and passed in the dip a visible warning sign indicating that caution was necessary by reason of an uneven road surface ahead, in a position where some eighty yards away there was what by then presented as the crest of a rise upon a ‘blind’ corner. The judge found that, immediately prior to the accident, she was travelling at just under 50 mph. It is not clear, and indeed there was no evidence, whether that had been a constant speed as she drove along the road, or a speed to which she was reducing in or prior to the dip. Whichever it was, she plainly realised in the course of her approach out of the dip that she was driving too fast for the corner ahead to the extent that she ‘jammed’ on her brakes on the still upward gradient and skidded in what was effectively a straight line across to the other side of the road, before her car was in any way affected by the bump or the adverse camber on the peak of the crest. By her sudden braking to reduce speed she became committed to a path which inevitably carried her across the road in front of the oncoming bus, which had maintained its own correct side.

Although the judge found that, had the council placed a ‘SLOW’ marking on the road some 175 yards from the corner which the claimant would on the probabilities have obeyed, it was no more than a warning of the need to do that which should have been obvious to her in any event as she drove up from the dip. In my opinion, the judge was in error to regard it as an ‘all or nothing’ case and the appropriate proportion of the blame was one of 50:50.

I would thus allow the appeal to the extent of providing that damages be assessed upon that basis.

Lord Justice May:

I have had the opportunity of reading in draft Potter LJ's judgment in this appeal. I gratefully adopt his account of the facts of Mrs Gorringe's most unfortunate accident and the circumstances which give rise to this appeal. I agree with him for the reasons which he gives that the judge was wrong to hold the appellants liable to Mrs Gorringe for breach of section 41 of the Highways Act 1980. I regret that I do not agree with him in upholding the judge's decision that the appellants were liable for breach of a common law duty of care parallel with their statutory duty under section 39 of the Road Traffic Act 1988. In my judgment, the Council are not so liable. I would allow the appeal in full and dismiss the claim.

The accident occurred when Mrs Gorringe lost control of her motor car. She was driving north east along the B6133 Greetland Road from Elland to Ripponden at about 6.30 p.m. on 15th July 1996. It was broad daylight and the weather was fine so as to present no impediment to her driving. Police photographs and the video which we have seen show the approach to the site of the accident from the direction in which she was driving. The accident itself occurred at the crest of a short upward incline known locally as "the Barkisland Bump". The incline was preceded by a dip at the bottom of a preceding downward incline. At the low point of the dip the road bends somewhat to the right, but the crest at which the accident occurred is clearly visible from the downward slope leading to the dip. This length of the road did not have continuous centre white lines in either direction, but it did have elongated intermittent white markings indicating limited forward vision. As Potter LJ has described, there was an "uneven road" triangular hazard warning sign 85 metres short of the crest.

The accident occurred because Mrs Gorringe was unfortunately driving too fast as she approached the crest. Tyre marks on the road indicated that she must have appreciated the danger before she reached the crest. It follows from this that neither the bump nor the adverse camber, which Potter LJ has described, were the cause of this accident. A motorist driving up the slope towards the crest cannot see where the road beyond it goes, although a more distant view from the preceding downwards slope indicates that the crest was followed by a left hand bend. There would be no strong basis for criticising a motorist who had not noticed this, but Mrs Gorringe was, in my view, obviously driving too fast as she approached a crest on this country road beyond which she had little or no visibility. The evidence suggests that she was driving at or about 50 mph and that she lost control when she saw the bus approaching on the far side of the crest. The bus was on its correct side of the road and no one has suggested that its driver was negligent. There was enough room for Mrs Gorringe to drive her car on its correct side of the road past the bus without colliding with it.

In these circumstances, I find the judge's decision that Mrs Gorringe did not by her negligence contribute to her accident incomprehensible. The transcript indicates that he appears to have taken the view from the outset of the trial that contributory negligence was not going to be an issue if he found in the claimant's favour on primary liability. It struck him that there were good reasons for thinking that it might be an all or nothing case if the claimant's case succeeded on the basis that Mrs Gorringe was travelling too fast because she was misled. But as Lord Hoffmannn said in Stovin v. Wise [1996] AC 923 at 958D:

I agree with Potter LJ that in any event the judge's decision on contributory negligence cannot stand. If I had considered - as I do not, as will be seen - that liability in negligence was established against the Council, I should have held that Mrs Gorringe's own negligence contributed to her accident to a substantially greater extent than the 50% which Potter LJ has allowed. More significantly perhaps, I consider that the judge's finding against the defendants' plea of contributory negligence was part of what in my view was an unbalanced judgment as a whole. I agree with Potter LJ that the defendants' ground of appeal which contends that the judge was biased is not made out in a technical sense. It appears that the way in which the defendants produced documents during the course of the trial would have been a justifiable cause of irritation. It is also clear that forensic examination of the defendants' internal procedures in relation to highways maintenance and the like left a lot to be desired. Mr Turner QC on their behalf did not seek to submit otherwise. But the judge's sustained criticisms of the defendants resulted, in my view, in an unbalanced judgment which included a decision on contributory negligence in Mrs Gorringe's favour which is unsustainable. I further consider that other findings of fact adverse to the appellants made by the judge need careful scrutiny before they can be accepted as a basis for upholding his decision on liability against them.

Section 39 of the Road Traffic Act 1988, in the form in which it was in July 1996, provided as follows:

The section was amended in various respects by section 279 of the Greater London Authority Act 1999, and it is in the amended form that it is quoted in the judgment of this court in Larner v. Solihull Metropolitan Borough Council [2001] RTR 469. The amendments do not appear to me to affect the substance of the section so far as it is relevant to this appeal.

Section 39 of the 1988 Act imposes statutory duties on local authorities, but the duties are of a general nature. They are required to prepare and carry out a programme of measures designed to promote road safety. They must carry out studies into accidents arising out of the use of vehicles on roads within their area. In the light of those studies, they must take such measures as appear to them to be appropriate to prevent such accidents including the improvement, maintenance or repair of roads. There is a contrast between improving, maintaining and repairing existing roads and constructing new roads. As was said by the court in Larner :

The duty in section 39(2) is a general one to promote road safety and the introductory words of section 39(3) indicate that the duty may go beyond that of making studies into and taking measures to prevent accidents. Yet road safety is intrinsically concerned with preventing or reducing accidents and that in my view is obviously the main focus of the statutory duty.

Statutory duties do not always, or perhaps often, carry with them parallel common law duties giving rise to the possibility of claims in damages by individuals for their breach. A failure by a public authority to perform a duty imposed by statute may be enforced as a public law obligation by judicial review proceedings, but parallel individual claims for damages have caused problems of analysis. A leading case relating to duties imposed on highway authorities is Stovin v. Wise . The House of Lords there held by a majority that the question of whether the existence of a statutory power gave rise to a common law duty of care required an examination of the policy of the statute. The absence of a statutory duty would normally exclude the existence of a common law duty of care. Accordingly, the minimum preconditions for basing a duty of care on a statutory power were, first, that it would have been irrational not to have exercised the power so that there was in effect a public law duty to act, and secondly, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.

A feature of Stovin v. Wise was that the defendant council knew that the junction in question was exceedingly dangerous. A motorist's view was restricted by a bank on adjoining land. There had been accidents on at least three previous occasions. A divisional surveyor had recommended removal of part of the bank, and the Council had accepted the recommendation providing that the owner of the land agreed. The Council had made proposals to the owner of the land, who had not responded at the time of the plaintiff's accident.

Lord Nicholls of Birkenhead was in the dissenting minority in the result, but not, I think, in points of principle. He explained at page 936 that the Council had existing public law obligations requiring it to attain the standard expected of any reasonable highways authority in the circumstances. If there were a common law obligation sounding in damages, the extent of the obligation would march hand in hand with the authority's public law obligations. This was a cardinal feature of the case. The Council's public law obligation was to act as a reasonable authority. The common law obligation would be to the same effect. A concurrent common law duty would not impose on the Council any greater obligation to act than the obligation already imposed by its public law duties. When conferring the statutory functions, parliament had stopped short of imposing a duty in favour of the plaintiff. For this reason, there must be some special circumstance, beyond the mere existence of the power, rendering it fair and reasonable for the authority to be subject to a concurrent common law duty sounding in damages. On page 939G, Lord Nicholls considered the crucial question whether a highway authority, aware of a danger, owed road users a common law duty to act as would a reasonable authority in the circumstances, and hence be potentially liable in damages if it fails to attain this standard. He considered a series of features, broadly relevant to the present appeal, which in his view constituted special circumstances of sufficient weight for the crucial question to be answered yes. There was sufficient proximity. He reserved his view on what the position would be if an authority did not know, but ought to have known of the existence of a danger.

Lord Hoffmann gave the opinion of the majority. He said that, although there had been three accidents at the site in the preceding twelve years, this was not enough to give the junction the status of a "cluster site" or accident blackspot in the Council's computerised records. It did not therefore merit special attention under the Council's policy for dealing with hazardous stretches of road. Lord Hoffmann pointed out that the first instance judge had taken the view that the junction was exceptionally dangerous and that the Council through its officers actually knew of the risk. The Council had been held responsible, because it had done nothing to improve the visibility of a junction which they knew to be dangerous.

Lord Hoffmann said at page 950 that a public body almost always has a duty in public law to consider whether it should exercise its powers, but that does not mean that it necessarily owes a duty of care which may require that the power should actually be exercised. An order made upon judicial review can require future consideration of the exercise of the power. But an action for negligence looks back to what the Council ought to have done. Lord Hoffmann considered the distinction between policy and operations, also considered by the judge in the present case. Lord Hoffmann said at page 951C that the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not. He explained that practically every decision about the provision of public benefits, no matter how trivial it may seem, affects the budget of the public authority in either timing or amount. He explained at page 952E that whether a statutory duty gives rise to a private cause of action is a question of construction. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for breach. The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. In summary, Lord Hoffmann considered that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first that it would in the circumstances have been irrational not to have exercised the power so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.

Thus it was a minimum precondition of the existence of a relevant duty of care in the present case that, before Mrs Gorringe's accident, the appellants would have been compelled in judicial review proceedings to exercise their powers to improve the road markings and signs on the approach to the crest where the accident occurred in the way in which the judge decided they ought to have done. In addressing that question, a distinction between questions of policy and operations would not have been helpful.

In considering whether the Council in Stovin v. Wise owed a duty of care which required it to take steps to improve the junction in that case, Lord Hoffmann said at page 956B:

The fact that the Council, for want of proper procedures, may have failed adequately to address the relevant question is not of itself determinative. As Lord Hoffmann said at page 956C:

The judge in that case had made no finding as to whether it would have been irrational for the Council not to have done the work. Neither, as I read his judgment, did the judge in the present case. Lord Hoffmann in Stovin v. Wise pointed to evidence which indicated that it would have been very difficult so to find. It seemed to him therefore that the question whether anything should have been done about the junction was at all times firmly within the area of the Council's discretion. They were therefore not under a public law duty to do the work, and the first condition for the imposition of a duty of care was not satisfied.

Larner v. Solihull Metropolitan Borough Council specifically concerned section 39 of the Road Traffic Act 1988. In that case, the claimant drove her motor car across a junction after failing to observe and respond to two "Give Way" signs. She claimed that, in view of a pattern of accidents which had occurred at the junction and complaints made to the authority as to its dangerous nature, the authority should have provided additional advance warning of the fact that she was approaching a junction where her vehicle did not have precedence. The first instance judge dismissed her claim. The Court of Appeal dismissed her appeal. It held that there could be circumstances of an exceptional nature where a common law liability could arise in relation to the duty under section 39. But for that to happen it would have to be shown that the default of the authority fell outside the ambit of discretion given to it by section 39 and that would happen if an authority acted wholly unreasonably. The Court thus in substance applied the decision of the House of Lords in Stovin v. Wise to section 39 of the 1988 Act.

Lord Woolf C.J., giving the judgment of the court, said at page 473 that a statutory body must give proper consideration to the exercise of its powers, and a failure to exercise a power may in a particular factual situation may be so unreasonable as to amount to a breach of duty. If the only reasonable way in which it could exercise its discretion is to act in a particular way, the body becomes under a duty to act in that manner and there can be a duty to act at common law as well as under the statute. Lord Woolf said at page 474 that the courts had been reluctant to impose duties of care on the highway authority. He then said at page 475:

I add, by reference to the passage in the speech of Lord Hoffmann in Stovin v. Wise at page 956C which I have already quoted, that it is not sufficient to show that the Council gave the relevant question inadequate consideration. It is necessary also to show that, had proper consideration been given, it would have been irrational to decide not to take the measures.

In the present case, the judge's consideration of the appellants' common law liability relating to section 39 of the 1988 Act appears in the short passage in paragraphs 191 to 196 of his judgment. He had accepted evidence to the effect that the road at the crest where the accident occurred with such preceding signs and markings as there were was obviously dangerous. He held that there was a negligent failure to comply with section 39 that was of an exceptional nature and which was wholly unreasonable. He held that the appellants had wholly unreasonably failed to "prepare and carry out a programme of measures designed to promote road safety" in respect of a "slow" warning sign which he held should have been there. The work would have been inexpensive and should have been done.

In my judgment, the judge gave inadequate consideration to the relevant statutory framework. Within that statutory framework, I do not consider that his relevant findings of fact are supportable on the evidence. Further, he did not adequately address the crucial question whether, if the appellants had properly considered the matter, it would have been irrational for them to decide not to put up the "slow" sign which was the basis of his finding of liability against them.

As I have already said, the structure of section 39 of the 1988 Act is that the local authority is required to prepare and carry out a programme of measures designed to promote road safety. They are required to carry out studies into accidents arising out of the use of vehicles on road within their area. In the light of those studies, they must take such measures as appear to them to be appropriate to prevent such accidents including improvement, maintenance or repair of roads. The measures obviously could relate to sections of roads or to individual places. In public law, the local authority might in theory be subject to judicial review proceedings if it failed to carry out studies into accidents or, conceivably, if, having carried out such studies, it failed to take appropriate measures to prevent the kind of accidents which the studies had identified. Judicial review proceedings would normally only succeed on the basis of failing to take such measures, if it were held to be irrational not to do so. It is obvious that the availability and allocation of resources would be an important consideration. It would require extraordinary facts indeed to support a conclusion that it would be irrational not to undertake an expensive scheme of improvement to a section of a road when funds were not immediately available. It would be less extraordinary perhaps if it were concluded that relatively inexpensive measures should be taken in relation to an individual place, but a decision not to do so would still have to be shown to be irrational in the light of all the circumstances, including the competing demands of other individual sites for the available resources. It is, in my judgment, considerations of this kind, deriving from Stovin v. Wise , which led this Court in Larner to refer to "circumstances of an exceptional nature" where an authority "acted wholly unreasonably". In this context, the opinion of an individual expert given after the event in litigation arising out of a serious accident, although relevant, is less persuasive than the antecedent accident history of the site. In the context of irrationality, a finding that there was common law liability parallel with the statutory duties in section 39 of the 1988 Act would require evidence to indicate that, before the accident, the site ought to have been regarded as an accident blackspot and that the local authority irrationally failed to take appropriate measures to prevent accidents at that site.

For all that the judge criticised the local authority in the present case for failings in their internal arrangements relating to the maintenance of highways, they did carry out studies into accidents arising out of the use of vehicles on the relevant section of the B6133. The most important of these resulted in the LAC Report of 14th July 1994. This resulted from a letter of request of 20th December 1993 outlining a programme of in-depth accident studies. The Report examined the personal injury accidents that had occurred on a section of this road approximately 4.65 kilometres in length. It described the road as a rural road traversing essentially open farmland subject to the national speed limit. Travelling in a generally north easterly direction, the road is described as rising steeply through a series of moderately severe bends with double white lines where appropriate. There came a point where there were no further steep gradients but the road was subject to constant changes in both vertical and horizontal alignment and "there are crests in places". Throughout the length of the section, the standard of road surface varied considerably. "The level of signing of the various hazards encountered throughout the length is minimal and in various places carriageway definition is poor. It is recorded that the section of road appeared in a 1993 edition of "Personal Injury Accidents in Calderdale - Lengths of Road" Report. The Report listed those lengths of road which had accident rates in excess of the national average and which also had a minimum of 10 personal injury accidents during a 5 year period. The accident rate for this length of the B6133 was calculated as twice that expected for a road of its class.

Section 3 of the Report was headed "Accident Analysis". Accident statistics showed that, of 32 accidents, 20 resulted from "vehicular loss of control". It was to this group of accidents that remedial attention would need to be directed if a reduction in the accident rate was to be achieved. There is then a detailed analysis of the 20 accidents to determine whether there was any causation factors common to the group which might be susceptible to remedial attention. The analysis included that the number of all types of accidents occurring in darkness was over 40% higher on this road than the district average and that it rose to 50% for accidents where there had been loss of control; that half the drivers who lost control of a vehicle were in the 17-20 year age bracket; that the police reckoned that excessive speed was a major contributory factor in 40% of the cases and at least 40% of the accidents occurred while the vehicle was negotiating a bend or crest. The Report appended a plan showing the location of the 20 accidents were there had been loss of control. This showed that 14 of the 20 accidents where concentrated in the mid-section between Scammonden Road and Norland Road. "The horizontal and vertical alignment is particularly variable along here and there is little carriageway definition, few hazard warning signs and the road surface looks to be in poor condition."

The conclusion of this Report was expressed as follows:

The Report then suggested a package of possible remedial measures. These included resurfacing and/or reconstruction of the road were necessary, a comprehensive signing and lining scheme and the use of double white line systems where appropriate.

The appended plan showed the location of the recorded accidents, including separate identification of those where the vehicle had lost control. Four of the 20 accidents are shown as having occurred at or near the site of the accident in the present case. There is another place somewhat further on at which five of the accidents had occurred. Thus, although accidents had occurred at the site of the accident in the present case, it was not at the site of the greatest number of recorded accidents. More importantly perhaps, although the Report clearly indicates that the section of road as a whole required improvement, it did not single out this or any other particular site as requiring emergency improvement works in advance of works to the section of road as a whole. I use the word "emergency" intentionally, remembering that the question is whether it was irrational not to have taken measures relating to this particular site alone.

Although, as the judge held, this 1994 LAC Report may have got lost in the defendants' bureaucracy, the section of road did take its place in the defendants' "Sites for Concern" to be improved when Central Government funding could be allocated to it. It was not contended in the present case that the defendants were liable for not having carried out these general works by the time of the claimant's accident and the judge, rightly in my view, did not hold that they were. The question remained whether it was irrational not to take specific safety measures for the site in question.

As Potter LJ has described, there were two other possible sources of money to improve particular sections of road within the defendants' area. There were annual budgets of £150,000 for "Minor Traffic Measures" and £15,000 for "Minor Traffic Works". The money for Minor Traffic Measures was allocated to up to 30 sites a year on a points score in response to requests for action at sites which gave cause for local concern but which were unlikely to be the subject of immediate centrally funded improvement. There was no evidence that this site qualified for improvement from either of these budgets. There had been no letter of complaint relating to it later than 1990. There was no evidence that it qualified on points. There were 200 or so outstanding requests at the time but none of them related to this site. Accordingly, the site was on a length of road which was scheduled for general improvement when it reached the top of the "sites for concern" and when central funds were available, but the individual site did not qualify for the allocation of minor traffic measures or works funds.

In the present case, the expert engineers, Mr Senior and Dr Searle, held a discussion and made a statement following it. The statement included in section 4, a consideration of the accident history of Greetland Road. They recorded that the analysis of personal injury accident statistics produced annually on behalf of the defendants gave a comparison with a norm for the expected level varying from 148% to 205%. In the 10 years before the claimant's accident, there were 23 personal injury accidents reported to the police within the relevant 1.5 kilometre length of the road. Four of these where at or very close to the site of the claimant's accident. Of these four, one was in 1996 and, so I understand, too close in time to the claimant's accident to be relevant to a consideration of the defendants' obligations in relation to her accident. The other three were all in 1990. Two of these involved cars going south west. Only one of them involved a car going in the same direction as the claimant. In all four of these accidents, the car was going too fast. The experts noted that excessive speed was a factor generally on this stretch of the B6133. There is then this important passage:

The statement then records that Mr Senior believed that a case had been established before 1995 for an urgent need for safety measures on the length of road encompassing the Abbots Royd hill crest. Dr Searle's opinion was that the location was, on the basis of its accident history, entirely unremarkable.

Thus the highest that Mr Senior was able to put it in this statement was a belief that a case had been established before 1995 for an urgent need for safety measures on the length of road, which in the context meant the 1.5 kilometre length centred about the hill crest at Abbots Royd. A failure to carry out measures to improve the safety of this length of road was not the basis of the judge's finding in the present case. He limited his finding to the site in question. But that site was not, in the light of accident studies either before or after the claimant's accident, an accident blackspot according to recognised criteria and the individual opinion expressed by Mr Senior in evidence was not, in my judgment, capable of contraverting this. His own agreement in the experts' statement concluded explicitly that it was not. The 1994 LAC Report had not concluded that this was an accident blackspot and no relevant accident had occurred there since the report. Nor was it a site which was a candidate for allocation of funds from the appellants' smaller budgets according to their sensibly pragmatic criteria.

These considerations, in my judgment, lead to the conclusion that common law liability of the defendants parallel with their statutory obligations under section 39 of the 1988 Act was not established. The accident history of the site did not support the proposition that this was an accident blackspot. If the defendants gave or had given proper consideration to the site and its accident history, it would not have been irrational to decide not to carry out individual measures to that site (in preference to others) in advance of centrally funded general improvement. If they had so decided, they would not have acted wholly unreasonably. These were not circumstances of an exceptional nature where a common law liability could arise.

For these reasons, I would allow the appeal in full and, with regret at a personal level, dismiss the claimant's claim.

SIR MURRAY STUART-SMITH

I gratefully adopt the statements of facts set out in the judgment of Potter LJ. There are six grounds of appeal which may be briefly summarised as follows:

I agree with the judgment of Potter LJ that the judge was wrong to hold that the council were in breach of s.41 of the Highways Act 1980. I also agree with him that the criticism of the judge’s preference for the evidence of Mr Senior (ground 4) is not made out. Though I would add that there was much agreement between the experts; the point upon which they differed, namely the gravity of the danger presented by the accident site, signed as it was, was primarily a matter for the judge having regard to all the evidence.

Further I agree with Potter LJ, for the reasons he gives in paragraphs 90 and 91 that the judges’s conclusion that the claimant was not guilty of contributory negligence cannot stand. If I came to the conclusion that the appeal should be dismissed on the other grounds, I consider that a deduction of at least 50% should be made to reflect the claimant’s negligence.

I turn to consider ground 3. In his skeleton argument Mr Turner QC has identified 32 errors of fact all of which were made contrary to the defendant’s interest. The great majority of these criticisms are in my judgment made out. Perhaps none are of sufficient significance on their own to undermine the judgment; some are not very significant, others are irrelevant to the real issues in the case, though they refer to the very harsh nature of the judge’s views on the appellant’s administration. In paragraphs 52-55 of his judgment Potter LJ adverts to the most serious errors. With the possible exception of that referred to in paragraph 52, namely the judge's’ finding about visibility and the condition of the road surface, I understand that my Lord accepts the criticisms of the judgment. That is certainly my view. It may be that my Lord is right in thinking that the judge was referring to the limited visibility caused by the crest and the criticism of the road surface related to the bump. If so, it seems to me that the judge should have explained this, rather than making findings which appear to be at variance with the agreed police report and the uncontested evidence that the road surface had no bearing on the accident.

There is a further group of criticisms made by Mr Turner which relate to the hazard sign that was in position and which in my judgment were not without significance. These criticisms are as follows:

In my judgment these errors cumulatively are a matter for concern. In particular it appears to me that they impinge upon the judge’s assessment of the degree of danger presented to motorists by this hazard, signed as it was; and more importantly, that the Council’s failure to consider repainting or to repaint, the slow marking on the road at 175m. from the crest was wholly unreasonable in a highway authority.

I turn to consider ground 6. This is a matter which has caused me the most anxious concern. Were the errors of fact and the substance, timing and tone of the judge’s observations such as to give rise to a real risk that an objective and reasonable observer would consider that the appellants had not had a fair trial? First, so far as the errors of fact and inference are concerned, they were all one way; they were all contrary to the appellant’s interest. Mr Wingate-Saul QC was invited to draw the Court’s attention to any that favoured the appellant. He was unable to do so. The best he could do was to refer to two matters which the judge might have mentioned, but did not. In my view they were both so insignificant that it is entirely understandable that the judge did not think them worth mentioning. They carried no weight. Secondly, at an early stage of the trial the judge indicated his view that it was an all or nothing case. There was no question of contributory negligence. In this he was so manifestly wrong, that it is hard to escape the conclusion that he had prejudged the issue. The same may be said of his comment that the appellant’s argument on S41 of the Highways Act was “untenable”. On the contrary I take the view that the judge’s conclusion on this aspect of the case was manifestly contrary to authority, and was itself not tenable. As for the judge’s interventions during the evidence, there were far too many of them. There is a risk of a judge appearing to enter into the arena unless he confines his questions to clarification and that preferably at the end of the witness’s examination or cross-examination. Moreover, although Mr Turner QC did not make much of this aspect of the case, recognising that some at least of the judge’s comments on the appellant’s system of inspection, reporting and record-keeping were justified, I can quite understand that those of the appellant’s employees who were in court may well have felt that the judge had made up his mind against them. It is difficult to escape the feeling that the judge was determined to find for the claimant, come what may. But in the light of the conclusion to which I have come, namely that the appeal should be allowed on ground 2, I do not feel it necessary to reach a concluded view on this ground of appeal. If made out, it would call for a retrial, and that is something to be avoided, if at all possible.

I turn to consider the Larner liability. I have found considerable difficulty in understanding how the judge reached his conclusion in the aspects of the case. This is probably because judge did not set out section 39 in his judgment or attempt to analyse it and did not fully understand or analyse the necessary requirements for Larner liability. The judge deals with Larner liability in paragraphs 176-180 and 191-203. At paragraphs 176 the judge says:

This conflates subsection (2) and (3) of S39, and omits a vital part of subsection (3). I set out section 39, with emphasis added and subdividing subsection (3)(b) into (i) and (ii), in relation to the two possible relevant parts of subsection (3)(b). The section provides:

Subsection (2) is the general duty. Subsection (3) is the specific way of implementation of subsection (2); but it is not exhaustive. Subsection 3(a) requires the Council to carry out studies into accidents. This the appellants did. Subsection 39(b) is tied to subsection 3(a) because the steps required are “in the light of those studies”. In the light of the studies the Council had a programme of road improvements to be carried out on a system of priorities. That would fall within subsection 3(b)(i). I do not understand there to be any criticism of the studies, either those commissioned in 1990, 1991 or 1992 or the LAC Report of 1994. The judge considered the question of the implementation of the road improvements in paragraph 197-201 and concluded:

But none of these studies revealed the accident site as an accident blackspot. Nor indeed would any other study into accidents have revealed it as such in the light of the agreed evidence about the number of accidents over the previous ten years. In these circumstances I do not understand how subsection (3) is engaged at all. The judge does not explain how it is, because he omits all reference to the words I have emphasised. Yet he appears in paragraph 176 to be relying at least in part on this subsection.

Before turning to the principle in Larner I must refer to the way in which the judge dealt with this liability. In paragraph 178 the judge cites two short passages from the judgment of Lord Woolf CJ in Larner . From this he appears to derive the test as being that “the circumstances were of an exceptional nature” and that would be satisfied if the authority acted wholly unreasonably. In paragraphs 179 and 180 he deals with a submission of Mr Wingate Saul that this wholly irrational principle only applies to policy decisions and not implementation of policy or operational matters, and decided that this was a failure of implementation. The next six paragraphs are concerned with findings of fact as to whether there had been a “Slow” marking on the road at 175m and what had become of it.

The crucial findings are at paragraphs 191 to 196 and I will set them out:

The specific failure and breach of statutory duty appears to be identified as “failures to prepare and carry out a programme of measures designed to improve Road Safety” i.e. in respect of the ‘SLOW’ sign. It appears to come to this; the council failed to consider the need for replacing the ‘SLOW’ sign. Had they done so, they would have realised that the existing hazard warning sign was inadequate to warn motorists. This failure was in exceptional circumstances and was wholly unreasonable. In my judgment this conclusion cannot be sustained. If it were right, it would give rise to a flood of claims, which is the very thing that the strict parameters set by the Court of Appeal in Larner was designed to avoid.

I turn to consider the law as laid down in Larner v Solihull Metropolitan Borough Council [2000] RTR 469. The facts are as set out in the headnote.

The Court of Appeal dismissed the appeal. But they held that it might be possible in exceptional circumstances for there to be a common law duty of care in relation to the duty under s.39.

First it is important to note what Lord Woolf said about Section 65 of the Road Traffic Regulations Act 1984. At page 472 he said:

This is the relevant power under which Local Authorities erect traffic control signs. It is not suggested in the present case that there was any liability for failure to exercise this power, either under the statute or at common law. On the face of it, it is surprising that liability can arise under the much more general provisions of s.39(2) or (3), which cannot arise in relation to specific statutory powers relating to signing.

Lord Woolf continues:

After reviewing the authorities Lord Woolf continues at page 474:

In his speech in Stovin v Wise [1996] AC 923 Lord Nicholls (who was in the minority on the decision) after dealing with the situation where a statutory authority owes a duty of care based on proximity, went on to consider the situation where there was no proximity and nothing that obliged the council to act otherwise than in conforming with its public law obligations.

At page 936 he said:

These passages make it quite clear that it is only if the council is in breach of its public law duty, such that it would be amenable for proceedings for judicial review, that a person who is injured by the breach of public law duty can recover damages. I find it a remarkable proposition that the appellants could have been amenable to proceedings for judicial review on the basis that they did not specifically consider whether the slow sign should have been renewed or, if they had considered it, they could only irrationally have reached the conclusion that it should not have been renewed.

In this context it is pertinent to cite the closing paragraphs of Lord Hoffman’s speech in Stovin v Wise with which Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed. At page 958 he said:

This is a timely reminder that the courts should be slow to impose liability on the highway authority who have competing claims on their budget. It may that the cost of repairing this slow marking was small. But there were many competing claims on The “Minor Traffic Measures” of £150,000 and the “Minor Traffic Work” budgets of £15,000, and the studies carried out by the council, or on its behalf, did not satisfy the criteria of either of these funds. Lord Hoffman’s judgment is also a timely reminder that the courts should not strive to hold the highway authority liable when it is quite clear that the driver was at fault. If others had been injured in this accident, the claimant’s insurers would have compensated them, since she was manifestly at fault. The courts should be on their guard against facile findings of breach of public law duties giving rise to claims for damages out of sympathy for a badly injured claimant, where there is no one else to blame.

The sort of case where a breach of public law duty might give rise to a common law liability might occur where the highway authority have altogether failed to carry out studies into accidents in their area as envisaged by s.39 subsection 3, and it could be shown that, had they done so the site in question was an accident black spot. Or alternatively if having carried out studies and identified the site in question as a top priority, had for no justifiable reason, failed to do any thing about it but diverted their resources elsewhere. I do not suggest that these are exhaustive examples, but they do illustrate the sort of circumstance that could be regarded as exceptional and conduct which could be regarded as wholly unreasonable in the Wednesbury sense.

There is nothing of that sort here or even approaching it, notwithstanding that the council’s system of road inspections, record keeping or interdepartmental co-operation left much to be desired and fell well below what Mr Senior regarded as appropriate. It may be that the judge’s attitude manifested by the matters to which I have referred to in paragraphs 136 and 137 above dealing with grounds of appeal 3 and 6, made him far too prone to find exceptional circumstances and wholly unreasonable conduct. Moreover, for the reasons I have given, s.39 subsection 3(b) does not seem to me to be in point here. S.39 subsection 2(a) is, as Lord Woolf said in Larner, a target duty. The appellants did prepare a programme and were carrying it out according to the priorities disclosed in the studies and the criterion which they had laid down.

For these reasons I would allow the appeal.