Case briefing: Sumner v Colborne, Denbighshire County Council & The Welsh Ministers
In a useful case for Highway Authorities and other landowners the Court of Appeal has once again confirmed its dislike of claims by motorists who have suffered road traffic accidents who then seek to shift the blame for the RTA onto the Highway Authority for obstructed sightlines.
The facts in the latest case were quite extreme. The Defendant driver was exiting right from a minor road onto the A494 near Ruthin, North Wales and collided with a cyclist who was proceeding on the main road. The cyclist suffered serious injuries. It was accepted that the driver's visibility as he looked right was heavily impaired by vegetation growing at the junction, almost none of which was on the highway itself. The stopping sight distance for the driver to his right was just 18 metres when it should have been at least 122 metres according to national standards.
The vegetation was growing on land at the junction owned by the Welsh Ministers ("WM") who were also highway authority for the main road. The County Council was the highway authority for the minor road.
WM had not actually planted the vegetation but they did own the land and they had allowed it to grow. They had also identified the need to maintain it. Indeed a safety audit 5 years before the accident had stated that visibility for vehicles exiting the junction was substandard and the sightline would deteriorate further if the vegetation was not cut back regularly. Even seemingly worse, maintenance works were recorded just a few days before the accident but the Court held that the record was plainly erroneous – bearing in mind the height and density of the vegetation at the time of the accident and the fact that the Council cut it back afterwards (The Council neither owned the land at the junction nor had planted the vegetation, but most of WM's highway functions were delegated to it through service agreements).
So the facts were perhaps not promising to defend the claim. But there remained the major legal issue as to whether a duty of care was owed at all. Was a duty owed to highway users in respect of the vegetation on the land which was not actually on or even significantly overhanging the highway (a small part was overhanging - see below). Indeed WM and the Council had already had the claims against them struck out and this was the Defendant driver's appeal.
The First Instance Decision
The judge below had had no difficulty striking out the claims on the following grounds:-
- There was plainly no breach of the Section 41 Highways Act duty to maintain the highway
- There was no possible claim for the negligent failure to exercise a statutory power under Section 154 to cut back vegetation, following the landmark House of Lords cases of Stovin v Wise, 1994 and Gorringe v Calderdale MBC, 2004.
- Nor did the case of Yetkin v Mahmood, Court of Appeal, 2010 help the Defendant driver. In that case a pedestrian was on a central reservation and about to cross a dual carriageway. She stepped out into the further carriageway without waiting for the lights to change and was hit by a car. She claimed that overgrown vegetation on the central reservation had obscured her view. Surprisingly the Court of Appeal upheld her claim against LB Newham although it held her own negligence to have been 75%. The judge below had distinguished Yetkin on the basis that it related to a different scenario: to the creation of dangers on the highway not to the creation of dangers on land adjacent to the highway and insofar as there was any vegetation overhanging the highway it was a very small amount and not causally relevant.
Defendant Driver's Appeal
In essence the Defendant driver argued on appeal that a distinction between hazards on the highway – as in Yetkin – and hazards on adjacent land – was artificial, absurd and unfair. For example if sight lines were obstructed by smoke from a farmer's fire, whether there was a duty of care or not would depend upon which way the wind was blowing.
The Court of Appeal's Decision
The Court of Appeal upheld the dismissal of the claims, for the following reasons:-
- It was true that the junction had a serious visibility problem, but there are many junctions at least as hazardous on the British road network. Following the Stovin case, drivers must take the highway network as they find it.
- The only positive act creating the hazard was by WM fencing in the vegetation, not actually planting it and there was no positive act creating the hazard by the Council at all.
- Yetkin was not precedent for a duty of care since it related only to hazards on the highway.
- The Court noted that it had not been referred to a single other decided case where an owner of land adjoining the highway had been held to owe a duty of care to highway users in respect of vegetation on the land – as opposed to cases involving more direct obstructions of the highway, or cases where a person was initially on the highway but had then left it and was injured by hazards on the adjoining land.
- The Court considered if it should extend the law from the Yetkin scenario to include hazards lying adjacent to the highway, not just on the highway. It concluded it should not. There was no sense of "trap" or expectation of normal visibility. It was obvious that visibility was restricted at the junction and the reasons not to extend the duty were strong:
- Farmers would have to consider sightlines when planting crops, as would homeowners when tending their gardens
- Such a duty would unnecessarily add to and complicate existing planning controls in terms of the erection of buildings, fences etc
- Such a duty would only ever apply to a positive act which had created a dangerous situation so a subsequent landowner could never be liable, which underlines how unsatisfactory such a duty would be
Finally, the Court of Appeal confirmed the dismissal of the Defendant's driver's final argument that even, if there was no duty in respect of vegetation lying adjacent to the highway, some of it was actually overhanging the highway itself so, just as in Yetkin, the claim should succeed on that basis. The Court held that the judge had been entitled to conclude that there was no real prospect that this part of the vegetation had had any material effect.
Fundamentally the Court of Appeal has confirmed its dislike of drivers' insurers seeking to defray the cost of RTAs onto the public purse and the likely development of an industry of visibility experts to advise those who own land adjoining the highway. As the Court concluded "These are potentially serious and costly consequences for very little practical gain". We are left with the Yetkin decision where sightlines were impaired by an obstruction actually on the highway. But even there, highway authorities can take some comfort from the Court of Appeal's rather narrow description of Yetkin as relating only to the creation and maintenance of a crossing facility. At a time when local authorities face the consequence of widening duties in some areas – such as relating to foster parenting, local authorities will welcome this decision.