Yetkin v London Borough of Newham

A highway authority which positively creates or maintains a road facility owes all road users a duty to exercise reasonable care. The duty protects careless as well as careful road users. A claimant’s negligence may reduce damages for contributory negligence, but does not extinguish the authority’s duty.

Liability for a hazard created through the negligent exercise of statutory powers does not require proof that the hazard was a trap or enticement. This conventional common law liability is distinct from a claim based merely on an authority’s failure to exercise a statutory road-safety power.

A pedestrian was struck by a car while crossing a three-lane carriageway against the traffic signals. Tall shrubs planted and maintained by the highway authority on the central reservation substantially obscured her view. The trial judge found that the shrubs significantly contributed to the accident, but dismissed the claim because the authority owed her no duty of care. He assessed her contributory negligence at 75% in case that conclusion was reversed.

The pedestrian appealed. The central issues were whether conventional common law liability arose from the authority’s positive creation and maintenance of the crossing facility, and whether the proposed apportionment for contributory negligence was excessive.

1. Appeal allowed. The local authority owed the appellant a common law duty of care. It breached that duty, and its breach caused the accident. The authority was ordered to compensate her for 25% of the resulting damage.

2. The reasoning in Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15 concerned the attempted derivation of a private law duty from the non-exercise of a statutory road-safety power. It did not impose special limitations upon conventional negligence claims arising from positive acts. A person who acts in a way affecting highway safety generally owes road users a duty of reasonable care. A highway authority has no exemption merely because it acts under statutory powers.

3. The authority owed that duty to all road users, whether careful or negligent. It created a controlled crossing whose barriers directed pedestrians through a designated opening. It was foreseeable that some pedestrians would cross without waiting for the signals. Reasonable care therefore required an adequate view of approaching traffic. Planting shrubs which grew large enough to obscure that view, and failing to keep them trimmed, was a negligent exercise of the authority’s powers.

4. The claimant did not have to prove that the vegetation constituted a trap or enticement. Those expressions in Gorringe were contextual descriptions, not additional elements of liability for a hazard positively created by a highway authority.

5. The 75% reduction for contributory negligence was upheld. Apportionment required a broad assessment of the blameworthiness and causative effect of each party’s negligence. The two defaults had roughly equal causative effect, but the pedestrian bore greater blame because she deliberately attempted to cross three lanes without waiting for the signals and therefore assumed a high degree of responsibility for checking that it was safe.

Lady Justice Black and Lord Justice Laws agreed with Lady Justice Smith.

1. Court of Appeal (Civil Division): Allowed the appeal, set aside the dismissal of the claim against the local authority and substituted an order imposing liability for 25% of the damage.
2. High Court: HH Judge Hegarty QC, sitting as a Deputy High Court Judge, dismissed the claim against the local authority on 1 October 2009. He nevertheless assessed the appellant’s contributory negligence at 75% and granted permission to appeal.