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Yetkin v Mahmood & London Borough of Newham
5 October 2009
The Claimant suffered serious injury whilst attempting to cross
a traffic light controlled pedestrian crossing along the High
Street, Stratford in East London. She claimed she had started to
cross the road when the lights were green in her favour and that
the First Defendant, Mr Mahmood had driven through the crossing
when the lights were red against him.
The claim against the local authority
The Claimant also brought a claim against the Second Defendant,
the London Borough of Newham as the Local Authority for the area
and the Highway Authority responsible for the road in question. She
alleged that the Council was in breach of a common law duty of care
to persons using the highway in that shrubs planted close to the
kerb on the central reservation had become so overgrown as to
obscure the view of any approaching motorist or any pedestrian
attempting to cross the carriageway and as such constituted a trap
or hazard on the highway.
The decision against the driver
With considerable regret, having regard to the seriousness of
the injuries suffered by the Claimant, His Honour Judge Hegarty QC
found that the accident occurred because the Claimant stepped out
from behind the bushes when the lights were red against her and
when the First Defendant was so close as to give him no opportunity
to avoid her.
He went on to find however, that the accident would probably
have been avoided if the Council had not planted bushes or shrubs
in that position, or had not let them become overgrown and that the
true explanation for the accident was because the bushes in the
central reservation concealed the Claimant from the First Defendant
and impeded her view so that she stepped out into the road when it
was unsafe for her to do so and gave neither herself nor First
Defendant any real chance of avoiding the collision which then
occurred.
The case against the local authority
The Claimant maintained that the Council had assumed a duty of
care towards pedestrians using the crossing and that it was in
breach of that duty by reason of the obstruction created by the
overgrown shrubs and bushes in the central reservation. The claim
in negligence was essentially based on non-feasance and alleged, in
effect, that the Council had done nothing to eliminate a
foreseeable danger on the highway.
The case was defended on the basis that the Council did not owe
any duty of care to pedestrians using the crossing, either in
relation to the positioning of the central reservation, the
planting or subsequent maintenance of any shrubs and bushes and
that in any event, the evidence did not justify a finding of a
causative link between the presence and condition of the bushes and
the accident. Further, that even if there had been a duty upon the
Council, it was denied that the Council was in breach of that
duty.
Gorringe revisited
The Council relied upon the decision in Gorringe v
Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, in
which the House of Lords rejected the imposition of a duty of care
on a public authority merely because it has failed to exercise its
statutory powers or duties. In that case, it was alleged the
Highway Authority was in breach of statutory duty under sections 39
and 41 of the Highways Act and negligent at common law by failing
to repaint a "Slow” road marking, warning of a hidden sharp bend.
It was held that this did not form part of the authority's duty to
maintain the highway and as there was no clear and obvious danger
to road users arising out of the road layout the council were under
no duty to take other preventative measures.
The House of Lords in Gorringe accepted that a local authority
could be liable for breach of a duty towards road users if it had
for example, created a danger upon the highway. HHJ Hegarty held
that it remains good law that where a Highway Authority, in the
exercise of its statutory powers and duties, creates a danger to
users of the highway which would not otherwise have been present,
it may well be held to owe a duty of care to any users of the
highway who suffer damage by reason of the danger in question. It
does not necessarily follow however, that a public authority will
be held to owe a duty of care to persons using the highway in every
case where it creates such a danger on the highway.
Gorringe held that a motorist is not entitled to be forewarned
of the ordinary hazards of highway use. However, the Council in the
present case contended that the principle went further and that a
duty of care would only arise if the danger created by the highway
authority was one which would create a foreseeable risk of injury
for the reasonably careful motorist or pedestrian, where for
example the Highway Authority had “enticed” a highway user to his
fate or “trapped” him into danger.
Accordingly, whether it was found that it was the motorist or
the pedestrian who had failed to comply with the traffic lights,
any danger created by the shrubs and bushes on the central
reservation was or ought to have been obvious to the careful
pedestrian and the careful driver respectively. In that sense, it
was submitted that it was not a “trap” of the kind referred to in
Gorringe.
Whilst the Judge considered that the presence of the bushes and
shrubs was, as a matter of fact, a significant cause of the
accident, he did not consider that it could fairly be regarded as a
“trap”: it was an obvious danger for someone attempting to cross
the carriageway from the central reservation.
On the evidence, the Judge found that the pedestrian had
attempted to cross the road whilst the lights were still showing
green in the driver’s favour. In doing so, she could not have
properly addressed the obvious danger presented by the shrubs and
bushes in the central reservation.
No duty at common law
HHJ Hegarty concluded that the Council did not owe a duty of
care to either pedestrians such as Mrs Yetkin or motorists such as
Mr Mahmood in respect of the overgrown condition of the shrubs and
bushes in the central reservation.
Following the trial on liability, His Honour Judge Hegarty QC
sitting in the High Court in Manchester handed down his judgment on
1st October 2009 dismissing the claims against both the driver and
the Council.
Yetkin was clearly a difficult decision for the Court but it
necessarily follows and provides a further illustration of the
application of Gorringe in illustrating the limited extent of the
duty of care a local authority owes to users of the highway at
common law.
Browne Jacobson acted on behalf of the London
Borough of Newham
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