Factual and Procedural Background
This appeal arises from an order made by HH Judge Hegarty QC on 1 October 2009 at the Civil Justice Centre, dismissing the claim of the Plaintiff for damages for personal injuries sustained in a road traffic accident on 13 February 2004. The Plaintiff was struck by a motor vehicle driven by the Defendant while crossing the southbound carriageway of a dual carriageway road in The City. The Plaintiff sued both the Defendant and the Local Authority as the Highway Authority. The appeal concerns only the judge's decision regarding the Local Authority.
The road in question is a six-lane dual carriageway with a pedestrian crossing controlled by traffic lights, split into two stages separated by a central reservation enclosed by railings, known colloquially as a "sheep pen." The Local Authority had planted shrubs and bushes in the central reservation, which restricted pedestrians' view of oncoming traffic, particularly on the southbound carriageway.
On the night of the accident, the Plaintiff reached the central reservation but crossed the southbound carriageway without waiting for the pedestrian signal to change in her favour and was struck by the Defendant’s vehicle, which was lawfully traveling in the outer lane.
The Plaintiff’s primary allegation was that she crossed when the pedestrian signal was green and the traffic signal was red for the Defendant, which the judge rejected. The alternative claim was that the Local Authority’s planting and maintenance of the shrubs created a hazard by restricting pedestrian visibility, breaching the Local Authority’s common law duty of care.
The judge found that the shrubs significantly obstructed the Plaintiff’s view and contributed to the accident, inferring liability on the Local Authority for creating a hazardous state. However, the judge dismissed the claim on the basis that the Local Authority did not owe a duty of care to pedestrians in these circumstances. The judge also found the Plaintiff to be 75% contributorily negligent, a point on which permission to appeal was granted.
Legal Issues Presented
- Whether the Local Authority owed a common law duty of care to pedestrians such as the Plaintiff in respect of the hazardous condition created by the overgrown shrubs in the central reservation.
- Whether the judge erred in his assessment of contributory negligence apportioned to the Plaintiff.
Arguments of the Parties
Appellant's Arguments
- The judge misinterpreted the speeches of Lords Hoffmann and Brown in Gorringe v Calderdale Metropolitan Borough Council, taking them out of context and thereby making an error of law.
- Neither Lord Hoffmann nor Lord Brown intended to impose new limitations on the duty of care owed by a highway authority in the negligent exercise of its statutory powers.
- The Local Authority had a common law duty of care arising from its positive acts in creating and maintaining the crossing facility, including the planting of vegetation.
- It was foreseeable that some pedestrians would not wait for the traffic signals, so it was necessary to ensure that the vegetation did not obstruct pedestrian visibility.
- The judge’s 75% apportionment of contributory negligence was too severe, and a more favourable apportionment (e.g., 50%) should be considered.
Respondent's Arguments
- The Local Authority relied primarily on Gorringe v Calderdale Metropolitan Borough Council, arguing that no common law duty of care arises from the negligent exercise of statutory powers unless special limitations are met.
- These limitations include that the duty arises only towards reasonably careful road users, not careless or negligent ones, and that the duty is limited to avoiding traps or enticements into danger.
- The danger posed by the shrubs was obvious and did not constitute a trap, and the Plaintiff’s own negligence was the primary cause of the accident.
- Therefore, the Local Authority owed no duty of care to the Plaintiff in respect of the overgrown shrubs.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 |
Establishes that a highway authority’s failure to exercise statutory powers does not generally give rise to a common law duty of care; distinguishes between failure to act and negligent exercise of powers. |
The court examined the speeches of Lords Hoffmann and Brown in detail, clarifying that Gorringe did not limit the duty of care arising from positive acts by a highway authority that create hazards. |
| Stovin v Wise [1996] AC 923 |
Addresses whether failure to exercise a statutory power can give rise to a common law duty of care; establishes preconditions for such a duty including irrationality in non-exercise of the power. |
The court considered the majority and minority views in Stovin and concluded that failure to exercise statutory powers does not generally create a duty, but this is distinct from duties arising from positive acts. |
| Larner v Solihull Metropolitan Borough Council [2001] RTR 469 |
Considered liability of a highway authority for failure to paint warning signs; Court of Appeal adopted minority view in Stovin. |
The court rejected the minority approach and reaffirmed that no common law duty arises from failure to exercise statutory powers. |
| Phelps v Hillingdon London Borough Council [2001] 2 AC 619 |
Example of a case where a common law duty of care arose due to the relationship and conduct of the authority. |
Used to illustrate that common law duties can arise from the authority’s conduct or relationships, distinct from statutory powers. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the speeches of Lords Hoffmann and Brown in Gorringe, situating their observations within the context of the distinction between failure to exercise statutory powers and negligent exercise of those powers. It was clarified that the House of Lords in Gorringe did not intend to limit or alter the well-established common law duty of care owed by a highway authority when it creates a hazard through positive acts.
The court emphasized that the Local Authority’s planting of shrubs was a positive act in the exercise of its statutory powers to create a pedestrian crossing. While the planting itself was a reasonable exercise of power, allowing the shrubs to grow so as to obstruct visibility constituted negligence. The Local Authority owed a duty of care to all road users, including negligent pedestrians, to exercise reasonable care in such acts.
The judge’s reliance on the concepts of “trap” or “enticement” was found to be misplaced, as these terms were used in Gorringe to describe failures to act rather than positive acts creating hazards. The court held that the duty of care was not limited to protecting only careful road users, but extended to all users.
Regarding contributory negligence, the court upheld the judge’s 75% apportionment to the Plaintiff, reasoning that the Plaintiff made a conscious decision to cross against the traffic signals and bore a high degree of responsibility for her safety. The Local Authority’s negligence and the Plaintiff’s conduct were both causative factors, but the Plaintiff’s decision to cross unsafely justified the substantial apportionment of blame.
Holding and Implications
The court ALLOWED THE APPEAL and substituted the order to hold the Local Authority liable for 25% of the damages caused in the accident.
The direct effect is that the Local Authority bears partial liability for the accident due to its negligent maintenance of the pedestrian crossing vegetation. The decision clarifies that a highway authority owes a common law duty of care to all road users, including negligent pedestrians, when it creates a hazard through positive acts in the exercise of statutory powers. No new precedent was set beyond reaffirming established principles distinguishing duties arising from positive acts and those from failures to act.