West Sussex County Council v Russell

A highway authority’s duty under section 41(1) of the Highways Act 1980 requires the highway to be reasonably passable for ordinary traffic without danger caused by its physical condition. It does not require every foreseeable defect to be repaired or guarantee safety for every user. The assessment is fact-sensitive and concerns the highway as a whole, including a verge forming part of it. Drivers need not be treated as model drivers: the authority must cater for the normal run of drivers, including foreseeable mistakes. A dangerous drop-off between carriageway and verge may breach section 41 even where the immediate danger arises when a vehicle leaves the carriageway. The section 58 defence requires proof of the care reasonably required in all the circumstances. The matters in section 58(2), including constructive knowledge that the condition was likely to cause danger, are relevant to that assessment.

The claimant suffered serious injuries when her car skidded on black ice, left the carriageway of the A29 and collided with a tree. The carriageway had a substantial drop-off to the adjoining verge. She brought proceedings against the highway authority under section 41(1) of the Highways Act 1980.

His Honour Judge McMullen QC entered judgment for the claimant, subject to a 50 per cent reduction for contributory negligence, and directed that damages be assessed. The authority appealed on breach, the section 58(1) defence and the apportionment of responsibility. The claimant cross-appealed, contending that her contributory negligence should be assessed at 20 per cent. The central issues were whether the highway had been properly maintained, whether the statutory defence was established, and whether the 50 per cent apportionment should be altered.

1. Appeal and cross-appeal dismissed. The judgment for the claimant, subject to a 50 per cent reduction for contributory negligence, was upheld.
2. Section 41(1) raised two questions: whether the relevant area formed part of the highway and whether the authority had failed to maintain the highway as a whole in the legal sense. The authority conceded that the verge and the drop-off formed part of the highway. The applicable duty was to keep the highway reasonably passable for ordinary traffic at all seasons without danger caused by its physical condition. It was materially less stringent than a duty to repair every defect which might foreseeably cause harm, applying Burnside v Emerson [1968] 1 WLR 1490 and Jones v Rhondda Cynon Taff CBC [2008] EWCA 1497.
3. The drop-off was a significant or potential hazard to vehicles reaching the edge of the carriageway. The court rejected the argument that it mattered only to drivers who were already driving too fast or that the authority need not maintain a verge capable of being safely regained by an out-of-control vehicle. The authority had to make provision for the normal run of drivers, including those who made mistakes which experience and common sense showed were likely to occur, applying Rider v Rider [1973] 1 QB 505.
4. The section 58(1) defence failed. Having regard to the character and condition of the road, the evidence of the police officer and experts, and the authority’s constructive knowledge under section 58(2)(d), the authority had not proved that it had taken the care reasonably required to secure that the highway was not dangerous for traffic. Re-levelling the verge was the appropriate precaution.
5. The accident was caused by two factors: the state of the road and the claimant’s driving. The claimant was driving significantly too fast in icy conditions. The trial judge was not required to speculate about the precise speed at which her driving would cease to be negligent, and the appellate court would not disturb his apportionment, reached with the benefit of hearing the evidence.
6. The decision was highly fact-sensitive. It concerned the height of the drop-off in the circumstances of this road, including its narrowness, relative straightness, wooded surroundings, damp and shaded conditions, sinking topsoil and use of the verge as an unauthorised lay-by.

• Court of Appeal (Civil Division): [2010] EWCA Civ 71. The authority’s appeal and the claimant’s cross-appeal were dismissed. The High Court judgment was upheld.
• High Court, Queen’s Bench Division: His Honour Judge McMullen QC, sitting as a deputy judge, entered judgment for the claimant, subject to a 50 per cent reduction for contributory negligence, and directed assessment of damages.