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In Gorringe v Calderdale Metropolitan Borough Council [2004] the House of Lords found that a local highway authority did not owe a duty of care to place a road marking or erect a sign on a particular road where the claimant's accident occurred, as this did not form part of the council's statutory or common law duty to maintain the highway.

The claimant was injured in a road traffic accident when her car collided with a bus on the crest of a road where no road markings or signs warned of the dangers of the road.

The bus driver was not at fault but the claimant brought proceedings against the local authority, alleging that the council had failed to give warning of the danger involved in driving fast where motorists could not see ahead and had failed to repaint a "SLOW" warning sign on the road surface, which had faded over the years.

In their judgment, the Lords referred to the recent decision in Tomlinson v Congleton Borough Council [2003] and concluded that a highway authority is not an occupier of a highway and therefore does not owe a common law duty of care. Drivers must be first and foremost responsible for their own safety.

The claimant contended that the council's failure to put in place the requisite signage constituted a breach of its statutory duty to maintain the highway under section 41(1) of the Highways Act 1980, but the Lords held that the accident was not caused by any defect in the state of the repair of the road or by any failure of the council to maintain the road.

Alternatively, it was contended that the failure constituted a breach of the council's common law duty of care owed to the claimant and to any motorist driving on the stretch of road in question. Reliance was placed on section 39 of the Road Traffic Act 1988, which imposes a duty on every highway authority to prepare and carry out a programme of measures designed to promote and improve road safety.

The Lords held that section 39, correctly construed, does not impose a duty owed to an individual; it imposes a duty owed to the public as a whole. This cannot be applied to a case where the defendant has done nothing at all to create a duty of care and all that is relied on to create it, is the existence of the statutory duty. It was not accepted that a common law duty of care can grow parasitically out of its statutory duty not intended to be owed to individuals.

This judgment is clearly a blow to claimants and motor insurers alike.

On the other hand it is good news for highway authorities and their insurers.

The decision is perhaps not surprising in the light of the House of Lords' previous attempts to limit the scope of a highway authority's obligations both under the Highways Act and in common law (see in particular the case of Goodes v East Sussex Council [2000], which dealt with the authority's duty to clear snow and ice).

Public policy, and in particular the threat to limited public funds, has clearly played a key role in the decisions in both Goodes and Gorringe.

Parliament has now, in part, redressed the balance in the case of Goodes by the introduction of the Railways and Transport Safety Act 2003. It remains to be seen whether any similar legislation follows in the wake of the decision in Gorringe.

- Valda Grant is an associate in DLA's Insurance Group and head of the motor unit. Contact Valda by emailing valda.grant@dla.com.

Q: Isn't a round table meeting just as effective as a mediation in personal injury disputes?

Notwithstanding the foothold gained by mediation in personal injury disputes, resistance among lawyers and parties is far from uncommon. A typical argument raised is "we do it anyway" by way of without prejudice telephone conversations or "round table meetings".

A brief look at the history of the development of mediation reveals that this has been the staple argument of those resistant to mediation in every area of dispute resolution. Fortunately in the vast majority of cases it has shown to be incorrect.

Some of the key features of mediation are the role of the mediator as an independent neutral facilitating discussions between the parties; the atmosphere and environment created by the mediator.

Round table meetings can frequently be quite formal, even hostile, in which there is advocacy on the part of the parties' representatives. Further, positions have usually been determined prior to the meeting. Typically, parties and their solicitors will believe most of the evidence will need to be collated before such a meeting takes place, therefore forcing significant costs on both sides. As a result of the atmosphere created it will be unusual for different potential remedies to become apparent, or for the drivers for the dispute to be revealed. Round table meetings arguably see traditional negotiation (in which parties "horse trade", submitting offer and counter-offer) as being the only form of negotiation.

Lawyers by training, and arguably by instinct, will prefer traditional negotiation. The idea of an early mediation on which, for example, disclosure might not have taken place is anathema. The idea that the parties will play a more prominent role again is not likely to put many solicitors at ease.

ADR encompasses a number of processes including mediation. However, though some have attempted to argue differently, negotiation in itself does not amount to ADR or mediation. Even if the process is informal, process is still required to amount to ADR. To argue otherwise is to support the opposition to the development of personal injury mediation.

The recognition and support for ADR and mediation in particular (as opposed to traditional negotiation) is embodied in the CPR (e.g. Part 1.4(2)(e)) and has repeatedly been shown by the Court of Appeal in particular. In addition, the very significant benefits of mediation over traditional negotiation was recognised by, for example, the requirement in the Professional Negligence Pre-action Protocol. This very much reflected the professional indemnity market's recognition that "round table meetings" simply did not have the success rate of mediation, nor the savings in time and costs.

It would be wrong to say that the judiciary has uniformly recognised the benefits of ADR and mediation in particular. Those still in the "we do it anyway" camp will point to Corenso (UK) Ltd v The Burnden Group Plc [2003] and Alan Valentine v Kevin Allen and Others [2003] as possible support for the allegation that "round table meetings" are just as effective.

However, the impetus from the Court of Appeal, which arguable started in 1999 (Guinle v Kirreh and Kirstreet Ltd v Balmargo Ltd), means that these first instance decisions will not restrict the development of mediation.

For those still reluctant it may be that the only argument, which will be accepted, is that if the parties do not prompt mediation, ever increasingly the courts will order mediation (as in such cases as Shirayama v Shokusan [2003]) and make costs orders against the parties who fail to agree to mediation. Surely another excellent reason to support the development of mediation.

- Matthew Hirst is a partner in DLA's Insurance Group and a CEDR accredited mediator. Contact Matthew by emailing matthew.hirst@dla.com

Q: The claimant in Barber v Somerset County Council [2004] succeeded on appeal to the House of Lords in his claim for damages for occupational stress against his employer. Does this mean it is now easier for claimants to bring successful occupational stress claims?

It seems inevitable that claimants will seek to exploit the reversal of the Court of Appeal decision as a damning blow to defendants in occupational stress claims. In reality, the impact of this decision is likely to be less dramatic. The judgment in Barber left undisturbed the fundamental principles laid down in the landmark Court of Appeal case of Hatton v Sutherland [2002].

Mr Barber was an experienced teacher in a public sector secondary school who was awarded damages for occupational stress at trial against his employer, Somerset County Council. The Council appealed the decision as part of four conjoined appeals.

On 5 February 2002 the Court of Appeal allowed three of the appeals, including that of the Council, in a composite judgment reported as Hatton v Sutherland. The Court laid down 16 practical propositions to provide guidance as to the principles to be applied in occupational stress claims. Essentially, the Court of Appeal held that the "threshold question" was whether psychiatric harm was reasonably foreseeable, which would depend upon what an employer knew or ought reasonably to have known about an individual employee.

Their Lordships found that although Mr Barber's case was close to the borderline in terms of liability, there was insufficient reason to set aside the findings of the original trial judge. The House of Lords concluded that the senior management team should have taken the initiative to make sympathetic enquiries about Mr Barber when he returned to school after the summer break, because they were aware of his psychiatric difficulties the previous term. Their Lordships nevertheless endorsed the principles laid down by the Court of Appeal in Hatton and accepted the importance of what an employee tells an employer, emphasising that overworked people have different capacities for absorbing stress, with different breaking points.

The House of Lords' decision can be interpreted as placing a more onerous burden upon an employer to take positive action to enquire as to an employee's state of health on his return to work from a period of absence, and to offer assistance.

In practical terms employers and insurers alike may seek to fulfil this duty by implementing appropriate policies to ensure managers conducting return to work interviews seek clarification from an employee as to whether their health difficulties have resolved, and whether there are any steps the employer could take to alleviate any continuing difficulties. It is arguably not sufficient for an employer to conclude that the very fact an employee has returned to work constitutes evidence of his fitness to continue in his existing role unaided.

The debate looks set to continue. The decision in Barber was not unanimous, and in his dissenting judgment Lord Scott emphasised that pressure and stress are common to many professional employees; adults who have chosen their profession. Lord Scott questioned the fairness of asking colleagues carrying equally heavy workloads to assume an even greater burden simply to relieve the stress on one particular person.

Lord Rodger considered the interrelationship between an employer's tortious duty of reasonable care with an employee's duties under a contract of employment, referring to the situation where an employee returns to work on normal pay, but does less than his contractual duties, with the employer filling the deficit. In future, defendants are likely to ask the courts to examine these issues.

- Hazel Jeremy is a solicitor in DLA's Insurance Group. Contact Hazel by emailing hazel.jeremy@dla.com.

Q: I am a claims handler attempting to recover our outlay for fire damage to a property from third party insurers of independent roofing contractors who set fire to the roof. Their insurers are denying liability on the basis that we have no evidence to prove negligence. How can I advance a claim against the contractors?

If the contractors were carrying out works to the property and they were the only persons at the property who could reasonably have caused the fire, it may be open to you to argue that the often quoted, but sometimes misunderstood, maxim res ipsa loquitur (facts speak for themselves) applies.

When res ipsa loquitur is correctly applied, evidential proof of negligence against the contractors is not required.

Res ipsa loquitur may be used to advance a case where a claimant is able to prove the occurrence of an incident which could not have occurred without negligence on the part of a third party. In such circumstances, a court may find negligence on the part of the contractors unless they are able to provide a "reasonable" explanation to show how the fire may have occurred without negligence on their part. Advancing a claim under res ipsa loquitur does not, however, reverse the burden of proof. It merely invites the court to draw the inference that on the balance of probabilities the defendant must have failed to exercise due care (Bailey v Asplin [1999]).

In general, res ipsa loquitur may be applied in circumstances where: (a) there is the proof of the happening of an unexplained occurrence (in this instance the fire); (b) that occurrence would not have occurred in the ordinary course of events without negligence on the part of a third party (in this instance the contractors); (c) it can be established that the fire could not have been started on the part of any party other than the contractors i.e. the thing that inflicted damage was under the sole control and management of the contractors.

However, a note of caution should be added as a claim under res ipsa loquitur is not without risk. The contractors need only provide a reasonable explanation as to how the fire may have occurred without their negligence in order to rebut the presumption. Before advancing a claim against the contractors under res ipsa loquitur it would therefore be sensible to explore the possibility of obtaining evidence to establish negligence on the part of the contractors, for example by approaching the fire service and police to interview the officers in charge who attended the fire.

The contractors are likely to have been more forthcoming with the information provided to the fire service or police.

- Andrew Temperley is a solicitor in DLA's Insurance Group. Contact Andrew by emailing andrew.temperley@dla.com.

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DLA Partner Alan Jacobs coordinates the legal surgery. You can send your queries to Alan by emailing alan.jacobs@dla.com. If you would like more information or wish to discuss the queries answered in this issue, please either use the above email or contact the lawyer concerned.