It’s not always the Council’s fault: Gorringe reprised

Following a tragic accident where the claimant was struck by a London Bus whilst crossing a road sustaining multiple serious injuries, Central London County Court has struck out the claimant’s claim against a London Borough.

Background

The claimant was struck by a bus whilst crossing a traffic-light controlled pedestrian crossing across a designated bus lane sustaining multiple injuries.

The claimant made numerous allegations against the council which can be summarised as follows:

• the council was negligent in the construction and design of the layout of the road.
• the council failed to provide appropriate warnings, whether through signage or road markings of the dangers of crossing the road at this location.
• the council failed to take appropriate measures to avoid accidents contrary to section 39 of the Road Traffic Act 1988.
• the council failed generally to ensure that the road was reasonably safe for pedestrians.

The defence & application

The evidence confirmed that the council did not design or construct any part of the road in question but had adopted the road pursuant to section 38 of the Highways Act 1980 some years before the accident. If there was any misfeasance, it was committed some time before the road was adopted.

The House of Lords in Gorringe v Calderdale MBC (2004) 1 WLR 1057 made clear that there is no legal duty to provide a warning of the risk of using the road, whether in the form of signage or markings or otherwise. It had held that:

“When, in due course, Parliament imposed a statutory duty on authorities to maintain the highway and made them liable in damages for failing to perform that duty, it did not go further and impose a statutory duty to warn of impending dangers to motorists driving along a properly maintained highway…What little authority there is confirms that the powers of a roads authority to place signs have been superimposed on a common law which continues to impose no duty on the authority to warn of impending dangers”.

The House of Lords in Gorringe had also rejected the argument that any cause of action can arise in respect of a failure to comply with the duty under section 39 of the Road Traffic Act 1988:

“Section 39 involves the kind of target duty that gives rise to no right to damages for its breach at the suit of an individual, even where the breach of duty has consisted in the negligent failure of the local authority to take the appropriate measures to prevent accidents”.

Finally, Gorringe had also confirmed that a highway authority is not an occupier of the highway and owes no occupancy duty:

“A highway authority is not of course the occupier of the highway and does not owe the common duty of care. Its duties (and those of its predecessors, the inhabitants of the parish) have for centuries been more narrowly defined, both by common law and statute” – Gorringe v Calderdale MBC.

Following the filing of a defence an application was made to strike out the claim pursuant to CPR 3.4 and and for summary judgment under CPR 24 which was heard at Central London County Court on 27 November 2019.

The decision

The court ordered the claim be struck out under CPR 3.4 on the basis that the statement of case disclosed no reasonable grounds for bringing the claim and summary judgment was entered for the defendant under CPR 24 on the basis that the claimant had no real prospect of succeeding in her claim.

The claimant was ordered to pay the council’s costs of the action and because the claim had been struck out, qualified one-way costs shifting does not apply and so the order for costs is fully enforceable without the permission of the court.

Commentary

This decision whilst following long established legal principles is a welcome reminder of the limited duty of care a local authority owes to road users.

Steven Conway acted for the local authority in this case. He is a litigation lawyer at Keystone Law with over twenty years’ experience of defending local and public authorities and their insurers against the whole range of personal injury and civil claims brought against them.

This article was written for and first published by Local Government Lawyer.