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Damned if you do but not if you don't?
26 July 2010
The Court of Appeal judgment in Yetkin v London Borough of
Newham has increased the ambit of claims against highway
authorities and may encourage them to sit on their hands to avoid
future claims.
Following the decision in Goodes v East Sussex, a
highway authority’s statutory duty to maintain the highway has been
confined to defects in the fabric of the highway itself. But, can a
highway authority be liable for the negligent exercise of its
statutory powers in respect of the highway? According to the Court
of Appeal in the case of Yetkin v London Borough of
Newham, the answer will always be yes.
Mrs Yetkin was a pedestrian who crossed the road at a light
controlled junction and was hit by a car. The trial judge found
that she had crossed against a red light and so absolved the
motorist of any liability. He also found that the sightline between
Mrs Yetkin and the motorist had been impeded by the presence of
bushes that Newham had planted by the road side. However, the trial
Judge considered that Newham was not liable to Mrs Yetkin because
she was neither a reasonably careful pedestrian nor had she been
“trapped” by Newham into the danger. Mrs Yetkin appealed.
The Court of Appeal held that Mrs Yetkin’s case was not
comparable with the House of Lords decision in Gorringe v
Calderdale in which Mrs Gorringe had alleged that Calderdale was
liable for her accident because it had failed to re-paint a ‘SLOW’
sign on the road. The House of Lords found that Calderdale was not
liable for something it could have, but had not, done.
In Yetkin, the Court of Appeal held that it was dealing with the
negligent exercise of a power, as opposed to the non
exercise of a power as in Gorringe. The Court of Appeal ruled
that Newham owed a duty of care to all road users, whether the road
user was negligent or not, and that although the overgrown shrubs
had not ‘trapped’ Mrs Yetkin into having her accident, Newham was
still liable. Mrs Yetkin was held to be 75% responsible for her
accident as she had crossed whilst a red light showed.
The Court of Appeal’s judgment could lead to some striking
results. If the trial Judge had found that the motorist rather than
the pedestrian had crossed against the red light, there would be
nothing to prevent the motorist from making a similar recovery
against Newham on the basis that the sightline was impeded.
Following the judgment, Mrs Yetkin will continue to have to bear
a high proportion of contributory negligence for her injuries and
Newham has the prospect of a recovery against its contractors who
were responsible for pruning the bushes. But, even so, the
extension of liability onto a highway authority in such
circumstances is unwelcome.
So, in these times of straitened finance, what should a highway
authority do when faced with whether to exercise its statutory
powers with regard to the highway – for example by prettying up the
highway with planting? As the case law currently stands, you are
unlikely to acquire a liability for failing to exercise statutory
powers but, once exercised, you will acquire a liability if you are
found to have exercised those statutory powers negligently, even if
the road user was also negligent.
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