In this case, the claimant was cycling along the road when he collided with a car that was being driven by the defendant. The accident occurred at a junction and the defendant alleged that visibility at the junction was severely restricted due to the presence of vegetation on a fenced-off parcel of land bordering the roads.
The defendant alleged that Denbighshire County Council (first respondent) and Welsh Ministers (second respondent) were responsible for the land as highway authorities. It was specifically alleged that the second respondent owned the parcel of land at the junction, which had been acquired in order to carry out improvement works.
The defendant pursued Part 20 proceedings against both respondents alleging that they were negligent and in breach of duty of care for changing the layout of the land at the junction in such a way as to allow vegetation to grow. It was alleged that the vegetation was left to grow to the extent that it obstructed the visibility of drivers and the respondents should have properly maintained the area, which would have prevented this from happening.
At first instance, the judge held that the respondents’ duty of care to highway users was limited to the creation of dangers on the highway and did not apply to land adjacent to it. It was specifically held that the respondents were not responsible for cutting back the vegetation. Also, after reviewing photographs of the area he found that only very small amounts of vegetation were on or over the highway and as a result there was no obstruction that had been complained of by the defendant.
The defendant appealed the decision.
Court of Appeal decision
The Court of Appeal made clear that the precise extent and significance of the visibility problem at the junction was a matter to be determined by the trial judge. It was noted that the trial judge had reviewed photographs of the area in question in order to determine the extent of any alleged obstruction and had been entitled to conclude that the defendant had little prospect of establishing that the vegetation on or over the highway created an obstruction that was causative of the accident.
It was held that any failure by the respondents to cut back the vegetation in order to prevent it from obstructing the visibility of road users did not amount to negligence. It was stated that this position was not affected by the fact that the first respondent had carried out maintenance work on the vegetation in the past. Also, even if the second respondent was under a duty of care by reason of its positive act of carrying out improvement works to the area, there was no corresponding basis for a claim against the first respondent.
The Court of Appeal noted that the respondents had not done anything to create an expectation as to the extent of visibility at the junction. Also, there were powerful factors that mitigated against the existence of a duty of care on landowners to ensure that vegetation on their land did not affect sightlines on neighbouring highways.
In particular, there was a risk of this type of duty of care extending to the erection of buildings, fences and other structures that might affect peoples’ visibility. The Court of Appeal made clear that planning controls and the powers of highway authorities provided a range of public law powers for dealing with these issues and the courts should be slow to look to supplement them by implementing an onerous private law duty of care.
The Court of Appeal agreed that road networks were imperfect but it was up to drivers to take the roads as they find them and to act accordingly. The Court of Appeal specifically applied the case of Stovin v Wise  A.C. 923, where it was held that a breach of statutory duty in failing to remove visibility problems at a road junction did not give rise to a private law cause of action. Also, the Court of Appeal followed the decision in Gorringe v Calderdale MBC  UKHL 15, where it was held that a local authority only owed a duty at common law to keep the road in repair but this duty was not actionable in private law.
Further, the Court of Appeal noted that the claimant cyclist had not claimed against the respondents and if a duty of care was found to exist in the instant case, it would likely encourage an increase in claims by motor insurers for contributions from owners of land adjacent to the highway in these types of cases. It was noted that this would have potentially serious costs consequences for very little practical gain. As a result, it was held that it would not be fair, just or reasonable to find that either of the respondents owed a duty of care to the defendant in respect of maintaining the vegetation on the land that bordered the road in question.
What this means for you
This is a welcome judgment where the Court of Appeal was not prepared to find that a duty of care existed on local authorities or landowners to ensure that vegetation on land adjacent to the highway does not interfere with visibility. In this case, the visibility obstruction could not be attributed to any positive act of the respondents and a failure to take preventative action did not give rise to liability in negligence.
This decision re-emphasises that it is the duty of motorists to drive according to the road conditions which is a point that was made by Lord Hoffmann in Stovin v Wise  AC 923.
In this case, careful consideration was given to public policy and the risk of a large increase in claims if local authorities/landowners were held to owe a duty of care to maintain vegetation on land that is adjacent to a highway.
The Court of Appeal specifically noted that there are planning controls and public law powers to deal with this type of issue and there “… are potentially serious and costly consequences for very little practical gain”. Also, it was stated that it “… would not be just, fair and reasonable to find a duty of care in circumstances of the kind that existed here”.