22/02/2022
This recent appeal is the latest in a chequered history of claims brought against public authorities purely on the basis of the positioning, make-up and structure of public utilities.
The circumstances
The circumstances of the claim are tragic. On 16 May 2017 a vehicle was driving along a highway near Redruth in Cornwall. The highway bordered Stithians Reservoir. Unfortunately the vehicle left its lane, crossed the opposite lane and a grass verge, and then went through a wire fence. The vehicle then went down a stone-faced bank into the reservoir. Tragically the driver was killed.
The claim was brought by the estate of the driver. The Defendants were South West Lakes Trust ('SWLT') and South West Water Limited ('SWWL') (in their capacity as occupiers of the reservoir, and the bank between it and the fence), and Cornwall Council as Highway Authority.
The claim against SWLT and SWWL was brought on the basis that they ought to have been aware of the risk of vehicles leaving the carriageway, in particular in light of other incidents which had apparently happened in that area in October and November 2014. In their defences, SWLT and SWWL pointed out that there had not been any previous accidents where a vehicle had entered the reservoir; in the other incidents the fence had been damaged but the cars did not travel through it.
A separate line of argument was pleaded against CC on the basis that the highway had been designed, constructed and adopted without any sufficient assessment of the risks posed to motorists negotiating the left hand bend of the highway, ie that they might end up in the reservoir if they left the road.
An application was made by the Defendants to strike the claim out. The Judge hearing the application dismissed the claim in its entirety, and the Claimant appealed.
Appeal
The appeal in the claim against SWLT and SWWL related to whether the Judge was right to conclude that neither organisation owed a duty of care to road users under the Occupiers’ Liability Act 1984. The appeal relating to CC considered whether CC were liable to the Claimant on account of defective design of the road.
Occupiers Liability Act 1984
The appeal under the Occupiers Liability Act 1984 failed. The Court of Appeal agreed with the first instance Judge that SWLT and SWWL owed no duty of care to road users under the 1984 Act. The reservoir was not inherently dangerous to road users; any danger to road users arose by virtue of their vehicle coming off the highway, and not due to the state of the reservoir.
Claim against the Highway Authority
However, the appeal was part allowed so that one aspect of the claim against CC could continue.
The Court of Appeal agreed with the first instance Judge that an allegation relating to CC’s failure to exercise its powers and erect a crash barrier on the bend should be struck out, as a Council will not ordinarily be liable for failing to exercise its statutory powers.
However the Claimant’s argument that the design of the bend was negligent was allowed to continue. The Court of Appeal concluded that if CC had constructed a highway with a bend which was more acute than that recommended by prevailing standards, then it could potentially be liable for creating a danger (as opposed to failing to exercise statutory powers to remove a danger, which would not give rise to a cause of action).
Comment
It remains to be seen what degree of scrutiny the design of the highway is given, and whether the case will in fact be pursued against CC on this limited basis.
For the claim to succeed, the Claimant will still have to show that the design of the bend was negligent, and that this caused or contributed to the accident, and the Court of Appeal highlighted that there would inevitably be a “substantial” reduction for contributory negligence on the driver’s part in any event.
If you would like to discuss this topic in more detail, please contact Roger Carver, Associate.
