Visibility for highway users – what is required?

A landowner owed no duty of care to a highway user in respect of vegetation on its land that impaired visibility but where the vegetation was not on…

Sumner (Claimant) v Colborne (Defendant) and Denbighshire CC and Welsh Ministers (Third Parties) [2018] Court of Appeal – 4 May 2018

Summary

A landowner owed no duty of care to a highway user in respect of vegetation on its land that impaired visibility but where the vegetation was not on or over the highway.

Facts

On 15 June 2014, the claimant cyclist was severely injured on the A494 when he collided with the defendant motorist who was emerging from a minor side road. The Welsh Ministers (WM) were the highway authority for the main road. The council was the highway authority for the minor road. WM owned the land at the junction and had carried out improvement works in 2007 which involved creating a fenced-in area of vegetation of approximately 20 square metres. The vegetation in this area grew so as to restrict visibility at the junction. The driver brought contribution proceedings against the council and WM on the basis that they had negligently created a danger to users of the highway by changing the layout of the junction (a positive act) in such a way as to allow vegetation to grow and obstruct visibility. The council and WM successfully applied to strike out the proceedings. The defendant driver appealed. 

Court of Appeal

The appeal was dismissed for the following reasons:

  • The improvement work was carried out by WM. This was the alleged positive act. The council’s alleged failure to cut back the vegetation could not give rise to a liability in negligence (per Stovin v Wise [1996] and Gorringe v Calderdale [2004]).
  • In respect of the claim against WM there was no previous authority on the point and the court therefore adopted the incremental and analogous approach laid down in Robinson v Chief Constable of West Yorkshire [2018].
  • The closest analogous case of Yetkin v LB Newham [2010] involved the positive introduction of offending vegetation on the highway. By contrast, the instant case related to vegetation located on land adjacent to the highway.
  • There were ‘powerful’ factors militating against the existence of a duty of care:

    1. Imposition of such a duty would have a profound effect as all landowners would need to consider highway visibility when deciding where to plant trees/shrubs or erect buildings/structures.
    2. There are planning and highways powers to deal with such matters and “the court should be slow to supplement them by way of an onerous duty of care in private law”.
    3. Such a duty would present practical difficulties since only the landowner who carried out the positive act could have a potential liability but ownership of the land may have changed.

Per Lord Hoffman in Stovin, the road network is imperfect and drivers must take it as they find it and exercise appropriate care.

If a duty was held to exist “it would encourage a marked growth in claims by drivers’ insurers for contributions from owners of land adjacent to the highway in cases where visibility was an issue”.

Comment

This is a very important judgment both for landowners generally and specifically for local authorities given their frequent status as both highway authorities and owners of adjacent land. Far from being an incremental development in the law, the duty contended for would have amounted to a significant extension to the law of negligence. It would also have applied to any landowner, occupier, contractor or other party carrying out the requisite positive act. The judgment also provides clarification of the Yetkin judgment, helpfully confirming that the relevant principle is restricted to positive negligent acts which create a hazard on or over the highway.

Weightmans LLP acted for the Council and its insurers, Zurich Municipal.

For further information about Weightmans LLP or to discuss any of the issues in this update, please contact Peter Wake, Head of Local Government Litigation (0151 242 6866, peter.wake@weightmans.com).

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