Gorringe v Calderdale MBC

Facts

Mrs Gorringe was driving on a road in Calderdale when she came to the crest of a hill and saw a bus approaching. She braked and skidded and collided with the bus, and was seriously injured. She claimed that the highway authority, Calderdale Metropolitan Borough Council, had been negligent in failing to paint a warning on the road surface before the crest.

History

The authority was held liable below, and it appealed to the House of Lords.

Issue

Whether the highway authority owed a duty to road users to warn of the hazard, in negligence at common law, under the duty to maintain the highway in section 41 of the Highways Act 1980, or under the duty in section 39 of the Road Traffic Act 1988 to take steps to prevent road accidents.

Held

Appeal allowed. The council was not liable: it owed no common law duty of care to provide a warning, the duty to maintain did not extend to the provision of warnings, and the road safety duty gave no private law right to damages.

Ratio

• A statutory power or public duty does not of itself create a common law duty of care; where the complaint is a failure to exercise a power, a duty could arise only if it would have been irrational not to exercise the power and there are exceptional grounds for imposing liability.
• The statutory duty to maintain the highway concerns the physical condition of the road and does not extend to the provision of warning signs or markings.
• The statutory duty to take steps to prevent road accidents is a public duty enforceable by public law remedies, and does not give an individual a cause of action in damages for failure to take a particular measure.

The judgments

Key reasoning

• The question whether a statutory power or duty gives rise to a private law duty is one of statutory construction, and the Highways Act 1980 and the Road Traffic Act 1988 showed no intention of conferring such rights.
• Because road users must drive in a manner appropriate to the road conditions, the failure to warn of an obvious feature of the road did not create a danger; imposing a duty to warn would depart from the usual position that a person is not liable for failing to protect another from a risk he did not create.
• Deciding what warnings to give on the many roads for which the authority is responsible involves policy and the allocation of limited resources, matters which the courts are ill suited to supervise through negligence claims.

Where it fits in the module

On the FHS Tort list under omissions, acts of third parties and public authorities. Gorringe is the House of Lords' most restrictive treatment of public authority liability for failing to exercise statutory powers, building on Stovin v Wise, and combines the no-liability-for-omissions principle, individual responsibility, and distributive concerns. It sets up the debate whether public authorities should be treated like private parties, as in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, and the later decisions that reinforced the omissions principle, including Michael v Chief Constable of South Wales Police [2015] UKSC 2, Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 and Poole BC v GN [2019] UKSC 25, and Mitchell v Glasgow City Council [2009] UKHL 11.

Criticisms

• Requiring both irrationality and exceptional grounds before a duty arises from a statutory power depends on public law ideas the courts have not defined clearly, and makes the existence of a private law duty turn on the nature of a public law power.
• The appeal to the allocation of public resources and to defensive decision-making is unsupported by evidence and removes compensation from persons injured by an authority's failure, in contrast to the liability of a private person.
• The distinction between omission and positive act is artificial where the authority controls the highway and its design, and the claimant's own lack of care could be dealt with through contributory negligence instead of by denying a duty.