Since the Highways Act 1959 (now the Highways Act 1980), local authorities have had a statutory duty to maintain the highway. The House of Lords decision in Goodes vs East Sussex CC (2000), which confirmed that the section 41 duty only extended to preserving the fabric of the highway, appeared to present insurmountable difficulties to claimants where the surface was not defective.

Two recent cases will encourage claimants:

  • Larner vs Solihull MBC Court of Appeal, December 20, 2000

    Andrea Larner emerged from a minor road into the junction with the major road, where she was struck by a vehicle. She had passed 11 junctions giving her right of way. She did not see the two “Give Way” signs situated at the mouth of the junction.

    She alleged that the council should have provided additional advance warning of the fact that she was required to give way to traffic, superimposed onto its statutory duty under s39 of the Road Traffic Act 1988.

    The Court of Appeal disagreed. While accepting that the duty to carry out a programme of measures designed to promote road safety was mandatory, it concluded that councils had discretion as to how to comply. The more extensive the discretion, the greater the difficulty in establishing a duty of care. If, however, the only reasonable way that the council could exercise its discretion was to act in a particular way, it could become under a duty at common law and statute to act in that manner.

    In Larner, where the council had discretion how to perform its duty, the question was, had it acted unreasonably? On the facts, its actions were reasonable and the claim failed.

  • Gorringe vs Calderdale MBC, February 22, 2001

    Denise Gorringe had to negotiate a sharp crest in the road. She thought she would collide head-on with an oncoming bus, so she applied her brakes, but skidded and jumped the crest into the path of the bus. The court found there was little co-operation between the five highway sections, leading to confusion over responsibility for the various functions. The council's records failed to confirm local residents' evidence that a “Slow” marking had been on the road on the approach to the site. Accident reports and a 1994 independent report had noted the poor road surface and carriage definition, minimal signage and the high incidence of accidents and recommended re-surfacing and a comprehensive signing and lining scheme.

    The council's training system and the absence of any individual assessments or job descriptions detailing exact responsibilities or a strategic planning approach was criticised. The regularity of highway inspections was not in accordance with the code of good practice. Despite these failings, the council argued they should not be responsible in law, especially as the number of accidents at the site had fallen.

    However, the court held that failure to replace a previous “Slow” sign imprinted on the road which had deteriorated or been obliterated by re-surfacing within a reasonable time amounted to failure “to maintain the highway” under section 41 of the Highways Act. The court rejected the council's argument, based on Goodes, that it was not responsible, as the sign was not part of the fabric of the road, and held that Goodes concerned the duty to maintain permanent rather than transient road defects. The council conceded there was no section 58 statutory defence.

    The court found that the council's failure to provide inexpensive “Slow” markings and warning signs amounted to wholly unreasonable conduct, even though financial reasons prevented the implementation of a major road improvement scheme. The 1994 report demanded urgent temporary measures.

    The implications
    These decisions are important for the following reasons:

  • They confirm that councils owe a duty of care to motorists in negligence to provide appropriate measures to prevent accidents.
  • Mrs Larner's submission that the council's mandatory duty to prevent accidents resulted in a form of strict liability (if the court had held the absence of the sign was causative of the accident) being dismissed.
  • Mrs Gorringe argued that the wholly unreasonable conduct only applied to policy decision, while the normal standard of care applied to implementation. While the court insisted it was only attracted by this argument, some of Calderdale's failure could only be seen as breaching the lower standard – the standard of the level of care will need to be clarified in the future.

    The Gorringe decision that the duty to maintain includes painted signs will set alarm bells ringing in highway authorities. Inspectors must check that road markings are present and visible to the driver, and maintain an inventory of markings. It could be argued that this obligation may extend to the upkeep of warning signs.

    Highway authorities may sympathise with Calderdale for not taking temporary measures pending implementation of a major scheme, but the court was unequivocal – the duty under section 39 is paramount and could mean that urgent inexpensive action is required.

  • Andrew Cooper is a partner in the public service division of Weightmans.

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