Sumner v Colbourne

Highway authority – Duty of care – Negligence – Appellant sued for negligence in connection with road accident – Appellant bringing Part 20 proceedings against highway authorities alleging negligence/breach of statutory duty due to vegetation restricting visibility – County court striking out claim – Appellant appealing – Whether highway authorities owing highway users duty of care in respect of vegetation not itself on or over highway – Whether judge erring in finding no real prospect of establishing small amount of vegetation on or over highway caused accident – Appeal dismissed A cyclist was travelling along the main A494 road when he was involved in a collision with a car driven by the defendant which emerged from an unnamed minor road. The cyclist sustained serious injuries and brought proceedings in negligence against the appellant, who denied liability and alleged contributory negligence. The appellant further contended that visibility at the junction was severely restricted by the presence of vegetation, in particular on a fenced-off parcel of land bordering the junction. He commenced Part 20 proceedings against the respondents, alleging negligence and/or breach of statutory duty in relation to the state of the vegetation and seeking a contribution in respect of any liability he might be found to have to the cyclist. The first respondent council was the highway authority responsible for the minor road. The second respondents were the highway authority responsible for the A494, although most of their functions as such had been delegated to the first respondent. The second respondents also owned the parcel of land at the junction. The county court struck out the claim against each respondent. The judge accepted their argument that the duty of care to highway users to secure the cutting back of shrubs that obstructed the highway or interfered with the view of drivers, was limited to the creation of dangers on the highway and did not apply to land adjacent to it. He rejected the appellant’s argument that the respondents were nevertheless liable because the vegetation projected onto the highway on the basis that the very small amounts on or over the highway, as shown in photographs produced to the court, had not caused the obstruction complained of. Held: The appeal was dismissed. (1) The present case was not an extreme or exceptional case of reduction of visibility. There was plainly a serious visibility problem at the junction, but the precise extent and significance of that problem fell to be determined at trial. There were many equally hazardous junctions in the British road network and the circumstances here were commonplace. There was no sense in which the obstruction to visibility at the time of the accident could be attributed to any positive act by the second respondents. The most that could be said was that there had been a failure to cut back the vegetation so as to prevent it from obstructing visibility at the material time. But such a failure did not give rise to a liability in negligence; and that position was not affected by the fact that the first defendant had carried out maintenance on the vegetation in the past. Even if the second defendants were under a duty of care by reason of their positive act, there was no corresponding basis for the claim against the first defendant. Since the existence or otherwise of a duty of care in circumstances of the kind that arose in the present case had not been established by any previous decision, it fell to the court to apply an incremental approach to decide whether a duty of care should be recognised in this novel situation. That required a consideration of the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions: Stovin v Wise [1996] AC 923, Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 and Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595 followed. (2) respondents had created no expectation as to the extent of visibility at the junction. The factors militating against the existence of a duty of care were very powerful. The imposition of a duty of care on owners of land to ensure that vegetation in their fields and gardens did not affect sightlines on neighbouring highways would be profound. The principle would extend to the erection of buildings, fences and other structures that might affect visibility on the highway. Planning controls and the powers of highway authorities provided a range of public law powers for dealing with those matters in appropriate cases. The court should be slow to supplement them by way of an onerous duty of care in private law. The road network was imperfect and drivers had to take it as they found it. It was notable that the cyclist had not claimed against the respondents himself. If a duty of care were found to exist in the present case, it would be liable to 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 and 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. Those were potentially serious and costly consequences for very little practical gain. It would not be just, fair and reasonable to find a duty of care in the present circumstances: Stovin v Wise [1996] AC 923 followed. (3) The judge was entitled to conclude on the basis of the photographs and for the reasons he gave that there was no real prospect of the appellant establishing at trial that the vegetation on or over the highway, as distinct from the vegetation on the land by the junction, was causative of the accident. Although the precise details of the accident had yet to be established, the areas of uncertainty were not sufficient to invalidate the judge’s approach. Tim Horlock QC (instructed by Horwich Farrelly) appeared for the appellant; Andrew Warnock QC (instructed by Weightmans LLP) appeared for the first respondent; Lloyd Williams QC and Nicholas David Jones (instructed by Blake Morgan LLP) appeared for the second respondent. Eileen O’Grady, barrister Click here to read transcript: Sumner v Colbourne