King v Department of the Environment, Transport & the Regions

By a majority, the Court of Appeal held that a highway authority need not design a junction to guard against conduct falling outside the negligence that experience shows to be common. Even if a road layout is arguably defective or marginally outside advisory guidance, liability requires proof that the defect caused the accident. A claimant’s failure to observe clearly visible warning lines, give-way markings, directional signs and the central island may be the sole effective cause, particularly where the claimant knew a roundabout was imminent and could have negotiated it safely. The majority therefore allowed the appeal. Sedley LJ dissented, considering the layout an unnecessary and unacceptable hazard and the trial judge’s finding of causation one with which the appellate court should not interfere.

The claimant was severely injured after riding his motorcycle into the central island of a roundabout designed and built by the defendant highway authority. The High Court found negligent design and causation, while attributing 50% contributory negligence to the claimant. The authority appealed, arguing that neither negligence nor causation had been established and, alternatively, that the claimant’s contribution should have been assessed at 80%. The central issues were whether the high entry angle and lack of deflection constituted negligent design, whether that design caused the accident, and the proper approach to the claimant’s inattention.

1. Disposition. Schiemann LJ allowed the appeal and set aside the High Court’s order. Laws LJ agreed, expressly adopting the reasoning at paragraphs 29 to 35. Sedley LJ dissented and would have dismissed the appeal. The appellant was ordered to pay the respondent’s costs, to be assessed by a costs judge.
2. Duty and breach. The majority treated it as common ground, consistently with London Passenger Transport Board v Upson [1949] A.C. 155, that a designer must guard against the possible negligence of others where experience shows that such negligence is common. The court declined to determine the precise duty of a highway authority where competing design objectives require choices between conflicting considerations. It assumed, without deciding, that the entry angle and lack of deflection might in some circumstances amount to a breach.
3. Causation. The majority held that the accident was caused by the claimant’s failure to register the hazard warning lines, give-way lines, directional signs or the island itself. He knew that he was approaching a roundabout, there was no other traffic, and he could have banked and negotiated it safely. A marginally smaller entry angle would not have prevented the accident because he was not observing the road markings or island. The design was therefore not a cause of the accident. The claimant’s conduct also fell outside the negligence for which a competent road traffic engineer would reasonably be expected to make design provision. The issue of contributory negligence did not need to be decided.
4. Safety audits. The majority held that the judge had erred in treating the audit material as supporting negligent design. The pre-accident passages did not suggest altering the entry angle, while the relevant stage-three audit was produced after the accident. The evidence also showed that approaching traffic speeds had repeatedly been considered.
5. Dissent. Sedley LJ considered that the configuration and surface markings created an unnecessary and unacceptable hazard. The later re-marking demonstrated that the hazard was avoidable, and the trial judge’s evaluative finding was open on the evidence and should not have been displaced merely because another conclusion was possible.

• Court of Appeal (Civil Division): The appeal was allowed and the High Court order was set aside.
• High Court of Justice, Queen’s Bench Division: HH Judge Bruce Coles QC found negligent design and causation, with 50% contributory negligence attributed to the claimant.