Gorringe v Calderdale Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice May,SIR MURRAY STUART-SMITH |
| Judgment Date | 02 May 2002 |
| Neutral Citation | [2002] EWCA Civ 595 |
| Docket Number | Case No: B3/2001/0573 QBENF |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2002 |
[2002] EWCA Civ 595
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION HALIFAX DISTRICT REGISTRY
(Mr Recorder Thorn QC)
Lord Justice Potter
Lord Justice May and
Sir Murray Stuart-Smith
Case No: B3/2001/0573 QBENF
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.
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...
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