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No extension of duty for control of roadside vegetation

Gabriel Fay reviews this sensible and useful decision for highway authorities and other landowners. In Sumner v Colborne, Denbighshire County Council and The Welsh Ministers, the Court of Appeal rejected an attempt by a motorist to impose a duty of care on the highway authority and landowner to prevent roadside vegetation from impairing visibility for road users. Read more  

Sumner v Colborne, Denbighshire County Council and The Welsh Ministers Court of Appeal 4.5.18

The Defendant (Mr Colborne) was joining a major road, the A494, from a minor road, when he collided with a cyclist causing serious injuries.  The Claimant cyclist (Mrs Sumner) issued proceedings against Mr Colborne for personal injury.  Mr Colborne in turn brought additional proceedings against both Denbighshire County Council (the highway authority) and Welsh Ministers (owner of the land abutting the highway) arguing that the land owned at the junction had been left without maintenance resulting in extensive vegetation growing which obscured and restricted visibility for drivers joining the A road.  It was indicated that livestock once controlled the growth of the vegetation in that area but as a result of improvement works at the junction some years previously, the parcel of land was fenced in and the vegetation had grown unabated. Denbighshire County Council and the Welsh Ministers successfully applied to strike out the proceedings against them on the basis that they owed no duty to road users to maintain the vegetation in order to ensure good visibility at the junction.

The Appeal

Sir Stephen Richards and Singh LJ dismissed the Defendant driver's appeal against the striking out of his claims against the additional parties. 

Power v duty

It has long been settled law that a power endowed on a highway authority to carry out works, such as in this case under Section 154 of the Highway Act 1980, does not impose a duty.  Referring to both the cases of Stovin v Wise [1996] HL and Gorringe v Calderdale MBC [2004] HL, the Court of Appeal restated that bringing a claim by arguing negligent failure to exercise such a power must clearly fail.

The courts have always been very slow to find negligence for omissions as opposed to positive acts.  The Defendant had argued that the improvement works carried out at the junction by Welsh Ministers was the positive act.  He further argued that Denbighshire County Council had been negligent as the highway authority for not having managed the vegetation in such a way as to not restrict motorists' view of the major road from the minor side road.

The Court of Appeal rejected these arguments and noted that there were no analogous cases that could be referred to. Accordingly should the Court find in favour of the Defendant's appeal, it would be extending the law of negligence.  As such, the Court was bound by the guidance in Caparo Industries Plc v Dickman [1994] HL as summarised in Robinson v Chief Constable of West Yorkshire Police [2018] HL , namely that to find a duty which has not previously been decided by the courts, the court must consider the following:

  • the harm must be reasonably foreseeable as a result of the defendant's conduct;
  • the parties must be in a relationship of proximity; and
  • it must be fair, just and reasonable to impose liability.

In considering the test for extending the duty in negligence the Court was of the view that it was not just, fair or equitable to do so.  There are clear policy considerations that come through in the judgement. To impose such a duty would apply it to all landowners who owned land adjacent to the highway.  This may prevent them from erecting buildings and fencing and may mean that farmers would need to assess sight lines when planting crops.

Conversely, to not extend the duty would not prevent claimants from recovering from drivers who necessarily had compulsory insurance.  However, landowners may well not hold public liability insurance.  Furthermore, it would "…encourage…a marked growth in the business of providing expert advice to landowners on the implications of vegetation and structures on their land for visibility on the adjoining road network."  The Court considered these to be "…costly consequences for very little practical gain."

The facts and outcome of this case need to be distinguished from the scenarios where an authority plants vegetation on the highway (Section 96(6) Highways Act 1980, Yetkin v Mahmood and another [2010] CA and also those where vegetation overhangs the highway from adjacent land, British Road Services v Slater [1964]. In both of these situations, there is already an established duty to manage the vegetation so that it does not pose an unacceptable nuisance or risk to roads users.

Comment

This is a very sensible and helpful case from the Court of Appeal. Should the appeal have been successful, it would have resulted in an extensive and onerous duty on landowners whose land abuts the highway. The case also provides clear guidance on the distinction between the duty to manage vegetation on or over the highway as against management of vegetation on land adjacent to it.

Contact

For further information please contact, Gabriel Fay, Chartered Legal Executive, D +44 20 7645 4540, gabriel.fay@dwf.law

 

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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