Webber & Anor v Devon County Council

Reasonable care under Highways Act 1980, section 150(4), is a broad, objective and common-sense assessment of all relevant circumstances. It includes the foreseeability and likelihood of highway obstruction, the necessary preventative measures, their cost, and the gravity of the likely consequences. A landowner need not guard against a risk that is too remote, even though an exceptional event in fact causes an obstruction. Local knowledge and the previous performance of the land are important. Where the landowner’s positive activity creates or increases the danger, lack of financial means is not itself relevant, although the cost of precautions may be weighed against the seriousness of the risk.

Mr and Mrs Webber appealed against a judgment of His Honour Judge Gilbert QC in Exeter County Court, which held them liable to Devon County Council under section 150(4) of the Highways Act 1980 and in negligence.

Exceptional rainfall had washed soil from the appellants’ arable fields onto a public highway. The Council incurred the cost of clearing the obstruction. The trial judge found that the fields resembled others which had suffered earlier wash-outs and that the appellants had failed to take reasonable care. The appeal concerned whether highway obstruction from these fields was reasonably foreseeable and whether reasonable preventative measures were required.

1. Appeal allowed. The defence under section 150(4) of the Highways Act 1980 was made out, and the negligence claim also failed. Costs were awarded to the appellants in the Court of Appeal and below.
2. Reasonable care under section 150(4) is the care which a reasonable person would exercise in all the circumstances to prevent an owned thing from causing or contributing to an obstruction. Relevant considerations include the foreseeability and degree of risk, the measures required, their difficulty and cost, and the gravity of the obstruction and consequential damage. The list is not exhaustive.
3. Reasonable foreseeability is essential. If the risk is too remote, the owner cannot reasonably be expected to take preventative steps. The exceptional rainfall on 29 May 1999 did not itself establish foreseeability of an obstructive wash-out in ordinary or less exceptional conditions.
4. The objective assessment had to take account of the absence of significant wash-out from the relevant fields for more than 40 years, their failure to wash out when similar fields had done so, the evidence of the authority’s expert, and the practical local knowledge emphasised in the MAFF guide. Those matters meant that a reasonable person would not have foreseen a real risk of highway obstruction except in exceptional circumstances.
5. Although the burden under section 150(4) passed to the appellants once the statutory conditions were established, they discharged it by proving reasonable care. In a case where the owner’s positive activity creates or increases the danger, lack of means is not relevant; nevertheless, the cost or financial impact of precautions may be weighed against the gravity of the risk.

• Court of Appeal (Civil Division): Appeal from the judgment of His Honour Judge Gilbert QC sitting at Exeter County Court, delivered on 3 August 2001. The appeal was allowed with costs here and below.