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Yetkin v Mahmood and 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 authoritys 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 drivers 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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