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damned if you do but not if you dont?

19 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 authoritys 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 Yetkins 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 Appeals 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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