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Russell v West Sussex County Council, Court of Appeal, 12 February 2010

5 March 2010
The issues

Highways – road traffic – Highways Act 1980, Section 41 – Highways Act 1980, Section 58 – Statutory Defence – Highway Authority’s duty to motorist.

The facts

On the 1st March 2004 the Claimant drove her car into a tree and suffered serious personal injuries. On a frosty morning she drove her Golf TDi motorcar on the A29, 3 miles south of Ockley, a village south of Dorking. At the point at which the sequence of the Claimant’s accident began, the road bent slightly to the left, but no so as to reduce good visibility. The carriageway had been resurfaced in October 2001. The road was in generally good condition. It had white lines down the middle of the road, some continuous and some dotted, and there were continuous white lines on each side of the carriageway, intended to indicate to drivers that they should keep on the carriageway within the lines.

When the carriageway was re-laid, the Defendant Authority had applied top soil to the verges, which brought their level approximately up to the level of the carriageway. The carriageway crossed a river near the point of the accident, and anglers who fished that river used to park their cars on the verge, particularly on the eastern side of the road, although it was not an authorised lay-by. Between October 2001 and March 2004, the level of the eastern verge sank, both by the bridge and to the point south of it, where the Claimant collided with the tree. The sinking was probably worsened by the use of the verge by anglers as a parking place.

When measured by P.S. O’Neill, the height of the drop-off between the carriageway and the verge was variable, but measured between 4 inches minimum to 1 foot maximum and whilst in some parts the drop-off was sloped, in others it was sheer.

The Claimant was driving at about 45mph. Although the speed limit was 60mph, it was accepted that she was driving too fast in the circumstances, given that there had been a hoar frost that morning. The Claimant probably skidded on black ice a little to her left and her near side front wheel, or both her near side wheels left the carriageway and dropped down onto the edge of the verge. The Claimant tried to get the car back onto the carriageway against a drop-off at that point of about 6 inches. She steered violently towards her right and got the car back on the carriageway but found herself on the wrong side of the road. She steered hard left but because of her speed overcompensated and took the car off the road, across the verge and into a tree. Her son’s injuries were relatively minor but she suffered serious neurological and orthopaedic injuries.

Within a few weeks after the accident the Defendant, by use of further top soil, had raised the level of the verge on the eastern and perhaps also the western side of the road to the level of the carriageway and also placed marker posts at intervals along the edge of the verge in order to prevent anglers from continuing to park their cars there. The Judge at first instance found that the Defendant Authority was in breach of Section 41 and that it had failed to make out its Defence under Section 58.

The Defendant Authority Appealed to the Court of Appeal.

The decision

The verge at the side of the carriageway was part of the highway. However, in respect of the verge, the liability was less than to guarantee the safety of the highway for all users. The duty was, as was said by Diplock LJ in Burnside v Emmerson “to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition”. As had been emphasised by the Court of Appeal in Jones v Rhondda Cynon Taff CBC, the duty was significantly less stringent than to repair every defect in the highway which might forseeably cause harm.

The Judge at first instance had reminded himself of the decision of the Court of Appeal in Rider v Rider to the effect that the Highway Authority had to provide not merely for model drivers but for the normal run of drivers to be found on the highway, including those who made mistakes which experience and common sense taught were likely to occur. According to the evidence of P.S. O’Neill and the Claimant’s expert, the drop-off represented a significant hazard to a vehicle which had come to the edge of the carriageway. The Defendant’s expert had agreed that the drop-off constituted “a potential hazard” to road users. Taking into account the decision of the Court of Appeal in Rider v Rider, whether or not the evidence of the experts and P.S. O.Neill drove a conclusion that the Defendant was in breach, it in any event entitled the Judge to reach his implied conclusion to that effect.

As to the statutory Defence, the Defendant relied on the inevitability of top soil sinking and the absence of any reported accident at the site or any reported complaint about the state of the verge in general or the height of the drop-off. Routine inspections were conducted monthly by two of its officers travelling at no more than 30mph. Its Area Highways Manager had said that even if the height of the drop-off had been identified (which it had not been), the Authority 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 P.S. O’Neill identified the height of the drop-off and his view and that of the experts as to the danger which it represented, provided sufficient justification for the Judge’s conclusion that within the meaning of Section 58(2)(d), 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. Fixed with that constructive knowledge it had failed to prove for the purposes of the first sub-section that it had taken such care as was reasonably required to secure that the highway was not dangerous for traffic by raising the level of the verge.

The Judge had correctly identified two causes of the accident, the state of the road and the state of the Claimant’s driving. His apportionment of 50% contributory negligence could not be faulted.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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