Can a landowner be held responsible for not cutting back vegetation on land adjacent to a highway that obstructs motorists’ views? Sumner v Colborne Denbighshire CC and The Welsh Ministers [2018] EWCA Civ 1006 considered.

Mr Sumner was cycling along a major road when a motorist (Mr Colborne) emerged from a minor road and collided with him, causing him serious injuries.  The cyclist sued the motorist.  The motorist brought contribution proceedings against the highway authority that owned the land (the Welsh Ministers) and the separate highway authority that maintained it (Denbighshire County Council) on the basis that he could not have avoided the accident because vegetation from the land adjacent to the highway (also owned by the Welsh Ministers) had severely restricted his visibility.

At first instance the claim against both highway authorities was struck out.  On appeal, the main question was whether the authorities owed highway users a duty of care in respect of vegetation on the land at the junction (ie. vegetation adjacent to and not itself on or over the highway).

In making its decision, the Court followed the incremental approach adopted by Lord Reed in Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595, at paragraphs 21-30.  Here, when deciding whether a duty of care arises in novel cases, “the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions.  They will also weigh up the reasons for and against imposing liability, in order to decide whether a finding of a duty of care would be just and reasonable”.

Among other cases, the court considered Yetkin v Mahmood [2010] EWCA Civ 776 where liability had been held to exist for vegetation planted by the highway authority on a central reservation, which had obscured the view of oncoming traffic.  However, Yetkin was different because that it related to vegetation planted on the highway, not on land that was adjacent to it.

The Court were not provided with a report of any decided case where an owner of land adjoining the highway had been held to owe a duty of care to highway users in respect of vegetation on that land or indeed in respect of any comparable circumstance.  In fact, the case of Noble v Harrison [1926] KB 332 was considered where an adjoining landowner was not held liable for a tree overhanging a highway when it fell and caused damage to a vehicle.

Further, following Robinson the Court found that the factors against imposing a duty of care here were powerful.  The Court considered that:

• Placing a requirement on landowners adjacent to the highway to ensure that they did not affect the sight lines on the highway would be profound. Planning controls and the powers of highway authorities to deal with such matters already existed. The court should be slow to supplement them by way of an onerous duty of care.
• Further, because it was established case law that the duty could only be imposed following a positive act, the duty would stay only with the original landowner who created the visibility problem. If the land was sold, the new landowner would not be held liable.  This highlighted the unsatisfactory nature of the duty.
• Finally, in Stovin v Wise [1996] AC 923, Lord Hoffman made it clear that the road network is imperfect and it is the primary duty of drivers to take care, and take the road as they find it, including hazardous bends, intersections and junctions. The Court held that it was not in a position to dictate to the highway authorities what an appropriate standard of improvement would be.  This was a matter of discretion for the authority.

For the reasons above, it was not considered fair, just and reasonable to find a duty of care in circumstances such as this.

This case illustrates well I think the checks and balances in place as the law develops incrementally on a case-by-case basis, which is of course how our common law system operates. It follows that, for now, for a duty of care to be imposed in non-maintenance based highway claims, a claimant will need to show that the danger which led to the accident was caused by a positive act of the defendant, and that the danger was on, rather than adjacent to, the highway.