Gorringe v Calderdale MBC [2004] 1 WLR 1057

Key point

  • A common law duty of care cannot arise out of the mere presence of a statutory duty or power

Facts

  • C was driving too fast for safety on country road and got into an accident
  • C sued for damages against the D highway authority that it ought to have painted the word slow on the road surface
  • C claimed that a duty of care arises from D’s statutory duty to maintain the highway under s41 Highways Act 1980

Held (House of Lords)

  • D was not liable in negligence
  • D was not under a common law duty of care to protect C from her own negligence

Lord Hoffmann

  • A private law duty in tort cannot be inferred from the mere existence of statutory power or duty, it must be shown that there is a Parliamentary intention to create a duty of care
  • In the absence of a right to sue for breach of the statutory duty itself, it would be absurd to hold that D was nevertheless under a common law duty of care
  • “speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or public duty) to provide”: [32]

Lord Brown

  • In child abuse cases (X v Bedfordshire, Barrett v Enfield, Phelps v Hillingdon), the duty of care did not arise out of statutory powers but the relationships created between authorities and children for whom they have assumed responsibility
  • Parliament did not intend private law liability in damages to flow from a public law failure