A highway authority must maintain the highway so that it is free of danger to all users including those who make common mistakes. (Russell v West Sussex CC)

Russell v West Sussex County Council [2010] EWCA Civ 71

Background

At about 7.53 am on 01.03.10, the Claimant had crashed into a tree suffering serious injuries after losing control of her car on a frosty road. The Defendant had resurfaced the carriageway in about October 2001 and, apart from the condition of the verge and in particular from the difference in height (known as the "drop-off") between the carriageway and the verge on the claimant's left-hand side, the road was in good condition. There were continuous white lines on each side of the carriageway and, at the accident location, a car driven down the centre of the carriageway had about 0.5m to spare before it went into the verge.

Underneath the road at this point is a river and the verge was used as a lay-by by anglers. Between October 2001 and March 2004, the level of the verge sank both by the bridge and to the point south of it where the Claimant collided with the tree. Police found that the height difference was 4 – 12 inches and that, while in parts the drop-off slope was "chamfered", in others it was sheer.

Trial Judge’s decision

The Judge found that the Claimant had been driving at about 45mph. Although she was in a 60mph zone, she accepted she was driving too fast as she knew there had been a hoar frost or ice dew. The ambient temperature was about 0°. She probably skidded on black ice causing one or both nearside wheels to leave the nearside carriageway onto the "dropped off" verge. Because of the drop, to regain the road, the Claimant steered hard to her right which put her on the wrong side of the road. She thus steered hard left but overcompensated and left the road on her nearside and hit the tree. After the accident, the verge was raised to the level of the road and steps taken to prevent parking on it.

The Claimant contended that there was a failure to "maintain" the highway so a breach of s.41 Highways Act 1980. It was conceded that the verge was part of the highway. A road traffic collision unit officer considered that the height of the drop-off represented a significant hazard to any vehicle that was on the edge of the carriageway, with which the Claimant’s expert agreed. The Defendant’s experts accepted it was a "potential hazard.

The trial Judge found that s.41 applied and that the Defendant had failed to establish a defence under s.58(1). He found the Claimant 50% contributorily negligent.

The Defendant appealed on grounds that: (1) the Judge had not specifically found it to be in breach of its duty of care under s.41(1); (2) if he had, he was wrong to do so; and (3) if there was a breach, he should not have rejected its s.58 defence because, if the drop-off was a hazard at all, it was a hazard only to those driving at excessive speed. The Claimant cross appealed against the 50% deduction.

Court of Appeal decision

The appeals were dismissed. The Judge had not made an express finding that the Defendant had failed to maintain the highway in breach of s.41, but he had addressed the issue at lengthand it was clear that he had held the Defendant to be in breach of its obligation under s.41(1). He was entitled to make that finding. The test was set out by Sachs LJ in Rider v Rider. A highway authority’s duty is:

"…reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them… The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur."

The Defendant rhetorically asked if the statutory obligation is set so high as to require the maintenance of a verge at a level which will enable the carriageway to be regained by the driver of a car which, out of control, has dropped down on to it? The Court considered that the evidence from the police officer and the experts that the drop off was a "significant hazard" entitled the judge to reach his clearly implied conclusion to that effect.

As regards a s.58 defence, the nature of the works undertaken in 2001, in particular raising the level of the verges to the level of the carriageway, demonstrated the Defendant’s acceptance that it was desirable that their levels should be broadly equivalent. The Defendant stressed that topsoil will inevitably sink, particularly if compressed by the unauthorised parking of cars and that there were no reported accidents at the site or complaints about the state of the verge, despite routine monthly inspections. The area Highways Manager gave evidence that, even had the height of the drop-off been identified, the Defendant would have categorised it as a defect to be addressed only if and when other works had to be undertaken at the site.

However, the ease with which the police officer identified the height of the drop-off and the verdict of himself and the experts as to the danger which it represented, provided ample justification for the Judge's conclusion that the Defendant could reasonably have been expected to know that the height of the drop-off was likely to cause danger to users of the highway and that, fixed with that constructive knowledge, it had failed to prove that it had taken such care as was reasonably required to secure that the highway was not dangerous for traffic, i.e. by again raising the level of the verge.

In relation to the Claimant’s cross appeal, she had been driving too fast in conditions of which she was well aware and there was no obligation on the Judge to speculate the speed at which she could have driven without being negligent. The Claimant had admitted contributory negligence and the Judge's apportionment, which had been reached with the advantages of hearing live evidence and a more intricate enquiry, could not be faulted.

Simon Cradick, Partner
T: 029 2038 5464
E: simon.cradick@morgan-cole.com