Gorringe v Calderdale Metropolitan Borough Council

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD RODGER OF EARLSFERRY,LORD HOFFMANN,LORD SCOTT OF FOSCOTE,LORD STEYN,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date01 Apr 2004
Neutral Citation[2004] UKHL 15

[2004] UKHL 15

HOUSE OF LORDS

Gorringe (by her litigation friend June Elizabeth Todd) (FC)
(Appellant)
and
Calderdale Metropolitan Borough Council
(Respondents)
LORD STEYN

My Lords,

1

In agreement with all members of the House I too am satisfied the Council did not owe Mrs Gorringe a duty of care to place a marking on the road or to erect a sign, warning motorists to slow down on approaching the crest of road where the accident happened. I am in agreement with the opinions of my noble and learned friends Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood on the reasons for this conclusion in respect of highways and on the proper construction of section 39 of the Road Traffic Act 1988 and section 41 of the Highways Act 1980. There is nothing that I can usefully add to their careful and detailed analysis about the legal position in regard to highways.

2

There are, however, a few remarks that I would wish to make about negligence and statutory duties and powers. This is a subject of great complexity and very much an evolving area of the law. No single decision is capable of providing a comprehensive analysis. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. On the one hand the courts must not contribute to the creation of a society bent on litigation, which is premised on the illusion that for every misfortune there is a remedy. On the other hand, there are cases where the courts must recognise on principled grounds the compelling demands of corrective justice or what has been called "the rule of public policy which has first claim on the loyalty of the law; that wrongs should be remedied": M (A Minor) v Newham London Borough Council and X (Minors) v Bedfordshire County Council [1995] 2 AC 633, at 663, per Sir Thomas Bingham MR. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise.

3

In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: X (Minors) v Bedfordshire County Council [1995] 2 AC 633, Stovin v Wise [1996] AC 923, Barrett v Enfield London Borough Council [2001] 2 AC 550; and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy? In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy? An assimilation of the two enquiries will sometimes produce wrong results.

4

The second point relates to observations of Lord Hoffmann in his landmark majority judgment in Stovin v Wise, supra, to which Lord Hoffmann has made reference in his opinion. In Stovin v Wise Lord Hoffmann observed (953D-E):

"In summary, therefore, I think 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."

Since Stovin v Wise these observations have been qualified in Barrett and Phelps. I say that not because of the context of the actual decisions in those cases in Barrett a Council's duty to a child in care and in Phelps a duty of care in the educational field. Rather it is demonstrated by the legal analysis which prevailed in those decisions. In Barrett Lord Hutton observed (at 586C-G):

"I further consider that the decision of this House in Stovin v Wise [1996] AC 923 is not an authority which precludes a finding that there was a duty of care in this case, because Stovin v Wise was concerned solely with the omission by a highway authority to perform a statutory power, whereas in the present case the allegation of negligence relates to the manner in which the local authority exercised its statutory duty and powers.

In the Bedfordshire case [1995] 2 AC 633, 736F Lord Browne-Wilkinson said: 'For myself, I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence.' I am in agreement with this view and I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff's claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court's resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in the Takaro case [1988] AC 473, 501, a careful analysis and weighing of the relevant circumstances."

Lord Nolan and I expressly agreed with Lord Hutton's analysis. In substance a similar analysis was adopted by the House in Phelps: per Lord Slynn of Hadley, at 652H-653F.

5

These qualifications of Stovin v Wise have been widely welcomed by academic lawyers. A notably careful and balanced analysis is that of Professor Paul Craig (Administrative Law, 2003, 4th ed, at 888-904). He stated (at 898):

"There are many instances where a public body exercises discretion, but where the choices thus made are suited to judicial resolution. The mere presence of some species of discretion does not entail the conclusion that the matter is thereby non-justiciable. In the United States, it was once argued that the very existence of discretion rendered the decision immune from negligence. As one court scathingly said of such an argument, there can be discretion even in the hammering of a nail. Discretionary judgments made by public bodies, which the courts feel able to assess, should not therefore preclude the existence of negligence liability. This does not mean that the presence of such discretion will be irrelevant to the determination of liability. It will be of relevance in deciding whether there has been a breach of the duty of care. It is for this reason that the decisions in Barrett and Phelps are to be welcomed. Their Lordships recognised that justiciable discretionary choices would be taken into account in deciding whether the defendant had acted in breach of the duty of care. There may also be cases where some allegations of negligence are thought to be non-justiciable, while others may be felt suited to judicial resolution in accordance with the normal rules on breach."

6

I would dismiss the appeal.

LORD HOFFMANN

My Lords,

7

On 15 July 1996, on a country road in Yorkshire, Mrs Denise Gorringe drove her car head-on into a bus. It was hidden behind a sharp crest in the road until just before she reached the top. When she first caught sight of it, a curve on the far side may have given her the impression that it was actually on her side of the road. At any rate, she slammed on the brakes and at 50 miles an hour the wheels locked and the car skidded into the path of the bus. Mrs Gorringe suffered brain injuries severely affecting various bodily functions including speech and movement.

8

On the face of it, the accident was her own fault. It was certainly not the fault of the bus driver. He was driving with proper care when Mrs Gorringe skidded into him. But she claims in these proceedings that it was the fault of the local authority, the Calderdale Metropolitan Borough Council. She says that the council caused the accident by failing to give her proper warning of the danger involved in driving fast when you could not see what was coming. In particular, the Council should have painted the word "SLOW" on the road surface at some point before the crest. There had been such a marking in the past, but it disappeared, probably when the road was mended seven or eight years before.

9

When the case was before the Court of Appeal [2002] RTR 446, Potter LJ said (at para 93) that it would have been "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." Nevertheless, he was willing to hold that the Council's omission to provide such a warning meant that the accident was partly its fault. The judge (Mr Roger Thorn QC, sitting as a deputy judge) had gone even further. He said that it was entirely the fault of the Council. In the absence of such a warning, Mrs Gorringe could not be blamed for driving too fast. But May LJ and Sir Murray Stuart-Smith disagreed. They said that the Council was not in breach of any duty to Mrs Gorringe and that she was entirely responsible....

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7 books & journal articles
  • Misfeasance in public office: a very peculiar tort.
    • Australia
    • Melbourne University Law Review Vol. 35 Nbr. 1, April 2011
    • 1 April 2011
    ...above n 52, 494-5. (202) Stovin v Wise [1996] AC 923, 952-3 (Lord Hoffmann). (203) Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326. (204) Mengel (1995) 185 CLR 307, 347 (Mason CJ, Dawson, Toohey, Gaudron and McHugh (205) See below Part X. (206) Law Commission, 'Admini......
  • Public authority liability for negligence in the post-Ipp era: sceptical reflections on the 'policy defence.'(Ipp Review of the Law of Negligence: Final Report) (Australia)
    • Australia
    • Melbourne University Law Review Vol. 40 Nbr. 1, April - August 2016
    • 1 August 2016
    ...in Ken Oliphant (ed), The Law of Tort (Lexis Nexis Butterworths, 2007) 893. (38) Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, 1077-8 [71] (Lord Scott) ('Gorringe'). See also Stovin [1996] AC 923, 935-6 (Lord Nicholls). To the extent that Stovin suggested that the ex......
  • The Justiciability of Resource Allocation
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    • The Modern Law Review Nbr. 70-2, March 2007
    • 1 March 2007
    ...Nonetheless, it is possible and indeed necessaryto understand the distinction properly before one can evaluate it e¡ectively.132 [2004] UKHL 15, [2004] 1 WLR1057.133 ibid 39^40. For aco nvincingcritique of this disti nction,see J. Morgan,‘Slowingthe Expansion ofPublic Authorities’Liability’......
  • The Political Origins of English Private Law
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    • Journal of Law and Society Nbr. 40-4, November 2013
    • 1 November 2013
    ...and without mentioning the traditional English rejection' of it. For recentjudicial support, see Lord Hoffmann in Stovin v. Wise [2004] UKHL 15, [2004] 1W.L.R. 1057, at [23]. Additional support for this view by Private Lawyers is cited inD. Priel, `Torts, Rights, and Right-Wing Ideology' (2......
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