No duty to provide road signs

Gorringe v Calderdale MBC HL TLR 2 April

Mrs Gorringe drove her car head-on into a bus on a country road in Yorkshire. The bus had been hidden behind a sharp crest in the road until just before she had reached the top. In the past, the word ‘SLOW’ had been painted on the road surface at some point before the crest but it had disappeared, probably when the road had been mended seven or eight years before. Mrs Gorringe said that the accident had been the fault of the defendant by reason of its failure to give a proper warning of the danger involved in driving too fast when one could not see what was coming. The judge at first instance had decided that, in the absence of a suitable warning painted on the road, the highway had been out of repair and had awarded damages for negligence and/or breach of statutory duty. By a majority, the Court of Appeal reversed his decision and the House of Lords unanimously upheld the Court of Appeal on the ground that the statutory duty of a highway authority to maintain the highway does not include the provision of road signs; nor does any common law duty to provide signs arise. The provision of information, whether by street furniture or by painted signs, is quite different from keeping the highway in repair. The alternative claim was for common law negligence, based on s39 of the Road Traffic Act 1988 which provides ‘(2) Each local authority must prepare and carry out a programme of measures designed to promote road safety’ and ‘(3) – (b) [it] must – take such measures as appear to the authority to be appropriate to prevent accidents, including the dissemination of information and advice relating to the use of roads’. No one suggested that such public law duties, expressed in the widest and most general terms, were enforceable by a private individual in an action for breach of statutory duty but it was argued that s39 cast ‘a common law shadow’ which created a duty on highway authorities to take reasonable steps to carry out the necessary studies and take the appropriate measures. Although there could be circumstances of an exceptional nature where a common law liability can arise, for that to happen it would have to be shown that the default of the authority fell outside the ambit of discretion given to the authority by the section. This would only happen if an authority acted wholly unreasonably. It was difficult to imagine a case in which a common law duty could be founded simply on the failure, however irrational, to provide some benefit that a public authority had power, or a public law duty to provide. The defendant was not alleged to have done anything to give rise to a duty of care. The complaint was that it had done nothing and s39 did not create a common law duty to act.