Highway authorities' duty of care to cut back vegetation

Introduction

In Sumner v Colborne, Denbighshire CC and The Welsh Ministers [2018] EWCA Civ 1006, the Court of Appeal considered the important issue of whether a local authority, in its capacity as a Highway Authority, owes a duty of care to motorists to cut back vegetation on land adjacent to a highway that obstructs motorists' views. 

In this article James Manning and Roger Carver assess the scope of the duty of care owed in these circumstances, discuss Roger's factually similar case and provide practical guidance for insurance claims practitioners.

Summary of Facts

The Claimant, Mr Sumner, was cycling on the A494 when he was involved in a collision with a vehicle being driven by a Mr Colborne, who emerged from a minor road onto the A494.

The Welsh Ministers ("WM") were the Highway Authority for the A494 and Denbighshire County Council ("DCC") was the Highway Authority for the minor road.

Several years prior to the accident, WM had fenced off a parcel of land that bordered the A494 and the minor road at the junction. Although WM had audited the land and devised a system of maintenance to cut back the vegetation, it failed to actually implement the system, and the vegetation grew to a height and density that impaired Mr Colborne's range of vision.

Mr Colborne denied liability for the collision and commenced Part 20 claims against DCC and WM, seeking an indemnity or contribution on the premise that:

• Yekin v Mahmood [2010] EWCA Civ 776 was a direct precedent or analogous in that DCC and/or WM had created a danger to users of the highway by changing the layout of the land at the junction, by permitting the vegetation to grown to such a height and density that it obstructed his visibility;
• DCC and/or WM were in breach of section 41 of the 1980 Act;
• DCC and/or WM had negligently created a danger because the vegetation had encroached onto or over the highway; and
• DCC and/or WM had assumed responsibility to the Defendant and/or the Claimant when they exercised their statutory powers.

Findings at First Instance

In response to Mr Colborne's Part 20 Claim, WM and DCC both applied to strike the claim against them out. HHJ Pearce heard the applications and struck out Mr Colborne's Part 20 claim because:

• While a Highway Authority has a power under s.154 of the 1980 Act to secure the cutting back of vegetation that overhangs a highway, or obstructs or interferes with the view of drivers of vehicles, WM and DCC owned no duty of care to Mr Colborne to cut back the vegetation – Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] 1 WLR 1057;
• Yetkin was concerned with the duty of care to users of the highway as to the creation of dangers on the highway, not to the creation of dangers on land adjacent to the highway;
• There was no breach of s.41 of the 1980 Act on part of WM or DCC, as there was no actual defect to the fabric of the A494 road or the unnamed minor road;
• There was no real prospect of Mr Colborne establishing that the very small amount of vegetation that was on or over the highway was the cause of the obstruction; and
• WM and DCC had not assumed responsibility to Mr Colborne and/or Mr Sumner when exercising their statutory powers.

Appeal

Mr Colborne appealed on two grounds, namely: 

• whether DCC and/or WM owed him a duty of care with regard to the condition of the vegetation on the land adjacent to the highway; and
• whether the vegetation on or over the highway constituted a danger to him.

Duty of Care

On appeal, the Court again rejected the contention that Yetkin was a direct precedent or analogous, determining that that case was concerned with the creation and maintenance of a crossing facility on the highway, whereas Sumner related to things done, or not done, on land adjacent to the highway.

Further, having considered Robinson v Chief Constable of West Yorkshire (2018) and Caparo v Dickman, the Court found that it would not be fair, just and reasonable to find that a duty of care existed on these specific facts because imposing such a duty would place too great a burden on individual landowners across the country.

Vegetation

The Court determined that HHJ Pearce was entitled to conclude on the basis of the photographic evidence that there was no real prospect of Mr Colborne establishing at trial that vegetation on or over the highway caused the accident.

Claim against Nottinghamshire County Council ("NCC")

In a recent case where we acted on behalf of NCC, Roger Carver secured discontinuance of the claim where the facts were broadly similar to Sumner.

The Claimant, a cyclist, cycled along a path and emerged from a pedestrian access gap in a hedgerow. He was involved in a collision with a motorist. He commenced a claim against both the motorist and NCC. He alleged that NCC was in breach of duty because the hedgerow running alongside the highway impeded his vision as he attempted to cross from a main road to a parallel service road, and also obstructed he motorist's view of the traffic.

In this instance, the crux of the Claimant's case was that the accident was caused by the dangerous condition of the hedgerow, but prior to this issue being determined at trial we persuaded him and his solicitors to discontinue his claim on the ground that it had no real prospect of success.

Comments

While the Court of Appeal's decision in Sumner confirms that local authorities owe no duty of care to road users for obstructions on land adjacent to a highway which restrict or obstruct their visibility, it is important that insurance claims practitioners remember that Yektin remains authoritative: a local authority generally has a duty of care to all road users when exercising its statutory powers and liability will follow if a local authority negligently exercises its powers and creates a danger on the highway.

Practical Considerations

Local authority claims practitioners should consider the following issues when assessing liability in factually similar cases:

• Did the Highway Authority negligently exercise its statutory powers and create a danger?
• Was the source of danger located on the highway itself or on land adjacent to the highway?
• Did the danger cause, or materially contribute to, the accident?

For more information please contact James Manning or Roger Carver

This article may contain information of general interest about current legal issues, but does not give legal advice.