Summer is approaching, leaves are appearing on the trees and everything is looking green again. However, while we are enjoying the warm weather, this burst of new life means that some road junctions are becoming hazardous, as visibility is decreased to just a few metres by fast-growing vegetation.
But who is to blame if the bushes are so thick that your view is completely obstructed, and an accident occurs? This was the question in the recent Court of Appeal decision in Sumner v Colborne.
Facts of the case
This case involved a driver who left a minor road to join an A-road and collided with a cyclist (who suffered serious injuries). The driver’s visibility was severely impaired by thick vegetation growing at the junction – he could see for just 18 metres, where national safety standards for new roads require a sightline of 122 metres.
The vegetation blocking the driver’s view was on land which was owned by the highway authority, but which, significantly, did not form a part of the highway. The highway authority had documented the need to regularly cut back vegetation, but this had not been done.
The question before the Court of Appeal was whether a duty of care was owed to road users in respect of vegetation located on land adjacent to the highway, rather than on the highway itself. The court concluded that no such duty of care exists: drivers are required to take the highway network as they find it and the junction was no more dangerous than hundreds of other throughout the country. The fact that the highway authority happened to own the adjacent land was not a relevant consideration.
The court’s reasoning was that making adjacent owners liable would cause a huge amount of additional cost (particularly to owners of farm land) for very little practical benefit.
This is good news for land owners: the court was clear that if you own land adjacent to a highway, you cannot be held liable for accidents caused by anything which you do – or fail to do – on your land.
Vegetation growing on the highway
However, there is an important distinction to be made between obstructions that are on land adjacent to the highway and those which are on the highway itself. In the 2010 Court of Appeal case of Yetkin v Mahmood, a pedestrian was hit by a car on a dual carriageway having stepped out, without waiting for the lights to change, when her view was obstructed by overgrown vegetation. The court found that in this scenario, where the vegetation was on the highway itself, the highway authority did owe a duty of care, and were required to pay damages (reduced to recognise the pedestrian’s own carelessness).
What does this mean in practice? It may be that this decision would be limited to vegetation at a crossing facility, but it’s not safe to assume this; highway authorities need to ensure that all vegetation growing on land which forms a part of the public highway is kept under control and may be liable for accidents caused if it is not. In addition, owners of land adjacent to a highway need to take care that vegetation does not spread onto the highway and cause an obstruction. While it was made clear in Sumner v Colborne that a small amount of vegetation overhanging the highway did not contribute to the accident, had the overhang been significant, so that it had obstructed the sightline, the outcome may have been different.
It is also important to consider the liability of those who take a licence from the highway authority (under section 142 of the Highways Act 1980) to cultivate an area forming part of the public highway. This is common where the public highway runs through a privately-owned business park or estate, and the owners of the site wish to ensure that the quality and consistency of planting is maintained. The licence will be prescriptive about what the licensee can and cannot do and will reserve rights to the highway authority to cut back anything which may cause an obstruction. However, the licence will also contain a full indemnity in respect of any third-party claims arising from the cultivation of the highway and a requirement that the licensee maintains appropriate indemnity insurance in respect of this. Land owners with licences to cultivate the public highway should therefore be aware that if their failure to maintain vegetation leads to an accident, and the highway authority is found to have breached its duty of care and is required to pay damages, the licensee is going to find itself liable to cover the cost of these.
Overgrown vegetation can be an issue for all road users, but this case provides a welcome assurance for landowners that nothing they do within their own boundaries can make them liable for any accidents caused. However, care does need to be taken to ensure that vegetation is not allowed to spread beyond the boundaries. In addition, those operating under a licence to cultivate the public highway should be aware that if they fail to do so, and this failure leads to an accident, they may find themselves facing a hefty indemnity claim from the highways authority.