NegligenceDuty of care - highway authority's statutory duty to take appropriate measures to prevent road accidents - authority liable at common law if acting wholly unreasonablyLarner v Solihull Metropolitan Borough Council: CA (Lord Woolf CJ, Judge and Robert Walker LJJ): 20 December 2000The claimant was injured in a road accident and sought damages from the local authority for negligently failing to carry out its duty under section 39 of the Road Traffic Act 1988 to promote road safety and take such measures as appeared to it to be appropriate to prevent road accidents.

The judge dismissed the claim on the grounds that the authority had not owed the claimant any common law duty of care and that, in any event, any such duty was not breached.

The claimant appealed.R F Owen QC (instructed by Peter Rickson & Partners, Preston) for the claimant.

Ralph Lewis QC (instructed by Rowley Dickinson, Birmingham) for the local authority.Held, dismissing the appeal, that, although section 39 of the 1988 Act was couched in mandatory terms, it left a considerable degree of discretion to the authority, merely requiring it to exercise its powers in the manner that it considered appropriate; that the fact that a power was discretionary did not mean that a common law duty of care could not exist and, so far as section 39 was concerned, there could be circumstances of an exceptional nature where a common law liability could arise; but that, for such a liability to arise, it would have to be shown that the authority's default fell outside the ambit of discretion given to it by section 39, which would happen if an authority acted wholly unreasonably; that all that would be required for an authority to avoid liability for the failure to take measures under section 39 was to establish that measures had been rationally considered not to be appropriate; and that, on the facts, the judge's conclusion that no breach of duty was established was unassailable.