This case is about the extent to which an authority has a duty to road users to make the environment around the road safe through the Road Traffic Act 1988. We always have the Highways Act for cases about maintenance of the highway itself but this is about the surroundings and management of the highway which could make its use safer.
The Claimant was crossing a three lane carriageway against the traffic lights. There were railings put up by the local borough to stop people crossing at a dangerous point away from the lights.
Her view to her direct left was obstructed by overgrown shrubs planted by the local authority on the railings.
She did not see a car in the carriageway lane immediately next to her as she stepped into the road and was struck by it.
The legal point taken by the Judge at first instance was whether, following the case of Gorringe -v- Calderdale Metropolitan Borough Council [2004] 1WLR1057, [2004] UK HL15, the local authority had any common law duty at all to a road user to make the environment around the highway safe.
In Gorringe, the claimant had hit a vehicle near a dangerous crest of a hill with limited visibility. She had said the local authority should have used their statutory power and public law duty to take steps to promote road safety under section 39(2) of the Road Traffic Act 1988, to provide a warning to motorists to go slowly because of the known hazard. She argued that, had they used their power and duty, that would have co-existed with the parallel common law duty of care to her as a road user.
The House of Lords had rejected that there was any duty of care to individuals that could normally arise from the statutory power and duty under public law in the Road Traffic Act.
And as a matter of policy, if road users used the road unsafely, then the claim should be against them rather than arising from public law duties against the local authority.
At first instance, the Judge in this case thought Gorringe applied and that the local authority had no duty to road users to trim back the shrubs for their safety. He dismissed the case.
However, the Court of Appeal said the Judge had failed to see the distinction between a Gorringe situation and what happened here.
In this case, the Highway Authority had taken a positive action under their powers to set up a crossing facility for the safety of road users. They had then decided, reasonably, to plant shrubs at the crossing.
It was still good law to say that the local authority would not usually be in breach of a common law duty to road users when failing to use their statutory powers and duty to make a road safer.
But once they had taken positive actions they did owe a duty of care to protect road users against reasonably foreseeable consequences of using those powers. The shrubs had grown large enough to obscure the view of road users and they had then negligently failed to cut them back.
Lady Justice Smith accepted that we all cross roads against lights from time to time and in this circumstance there was a high degree of responsibility to ensure that steps taken did not make it unsafe to do so.
Nevertheless, there was a very high degree of contributory negligence which she put at 75 per cent for failure to peer around the shrubs before crossing or waiting for the sign to walk.
Yetkin -v- London Borough of Newham [2010] EWCA CIV 776.