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Yetkin v London Borough of Newham, Court of Appeal, 13 July 2010

20 July 2010
The issues

Highways – road traffic – Gorringe v Calderdale MBC – highway authority’s power – Road Traffic Act 1988 Section 39 (2).

The facts

On the 13th February 2004 Mrs Yetkin was knocked over by a car driven by Mr Mahmood whilst she crossed the southbound carriageway of the High Street, Stratford in the London Borough of Newham. She sued Mr Mahmood and the Highway Authority. The Judge dismissed her claim against both Defendants. The Claimant Appealed in respect of the Judge’s decision relative to the Highway Authority.

The High Street, Stratford was part of the A11. At this point it was a dual carriageway with 6 lanes. In each direction was a bus lane and two lanes for other carriages. Not far from the junction with Cam Road was a pedestrian crossing controlled by traffic lights. It was split into two crossings, one for each carriageway. There was a central reservation in the middle. It was bounded by railings, save for access to the crossing points. At the time of the accident the central reservation consisted of a raised flowerbed planted with shrubs, bushes and plants of different shapes and sizes. The shrubs adjacent to the railings bordering access to the southbound carriageway were thick and quite tall. A pedestrian’s view of the road was restricted to the left. It was particularly obscured in respect of the view of traffic approaching from the left in the outer lane of the three (the first to be crossed). Mrs Yetkin set off across the southbound carriageway shortly after 9pm without waiting for the traffic lights to change in her favour. She was struck by Mr Mahmood’s car travelling in the outside lane. She alleged that at the time she crossed the road the lights were green in her favour and red against Mr Mahmood. The Judge rejected that allegation. As against the Local Authority she maintained that the Authority had planted or maintained the shrubs so as to create a hazard, restricting her view. The Judge found that the bushes interfered with her view and that if they had not been there she would probably not have stepped into the road when she had done. The Judge however dismissed the claim against the Local Authority because he took the view that it did not owe a duty of care to pedestrians such as Mrs Yetkin.

The Claimant Appealed.

The decision

In Gorringe v Calderdale Metropolitan Borough Council the Claimant had alleged that given that the Authority had a statutory power and a public law duty to take steps to promote road safety pursuant to Section 39 (2) of the Road Traffic Act 1988, that there was a parallel common law duty of care which in that case included the provision of a warning at the accident site. The House of Lords rejected that proposition.

This case was different from Gorringe. In Gorringe, the complaint was that the Highway Authority had failed to exercise its statutory powers. In this case, the complaint was that the Authority had exercised its powers but had done so negligently, thereby creating a danger for pedestrians using the crossing. In Gorringe, Lord Hoffman had said specifically that the Appeal was concerned only with an attempt to impose upon a Local Authority a common law duty to act based solely on the existence of a broad public law duty and that the House of Lords in that case had not been concerned with cases in which public authorities had actually done acts or entered into relationships or undertaken responsibilities which gave rise to a common law duty of care. In such cases he had said the fact that the public authority acted pursuant to a statutory power or public duty did not necessarily negative the existence of a duty. It was impossible to contend that Lord Hoffman had intended to lay down any new rules or conditions about the extent or scope of the duty of care of a Highway Authority which created a hazard on the highway. The passages relied upon by the Judge at first instance from Gorringe had been taken out of context and misunderstood. The Judge had taken a view that those passages imposed additional requirements on a Claimant bringing a conventional law claim against a Highway Authority for creating a hazard on the highway. There were no such additional requirements. The Highway Authority owed a duty to all road users, whether careful or negligent, to use reasonable care in the manner in which it exercised its powers when it created and maintained the crossing facility.

In this case, the planting of vegetation in the raised beds of the central reservation was a reasonable exercise of the Authority’s powers. To plant shrubs which would grow so large as to obscure the view and not to ensure that they were trimmed back was a negligent exercise of those powers. That failure was a cause of the accident. The Local Authority had a common law duty of care towards the Claimant, notwithstanding her own negligence; that duty was breached; the breach was a cause of the accident.

Appeal allowed with an Order that the Authority be held liability to compensate the Claimant for 25% of the damage caused in this accident, the Claimant’s contributory negligence being assessed at 75%.

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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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