Sumner v Colborne & Ors

A common-law duty of care does not ordinarily arise merely because vegetation or another condition on land adjoining a highway affects visibility for road users. The duty recognised for positive acts creating hazards on the highway does not automatically extend to off-highway conditions. In a novel duty case, the court must proceed incrementally by analogy with established authority, while considering legal coherence, practical consequences and the reasons for and against liability. Public-law powers and the imperfect road network weigh against imposing an onerous private-law duty on adjoining landowners. Failure to exercise a statutory power to cut back vegetation does not itself found negligence liability. A claim may also be struck out where the evidence gives no real prospect that vegetation on or over the highway, rather than adjacent vegetation, caused the accident.

The claimant, a cyclist, was injured when struck by a car emerging from a minor road. The driver brought Part 20 claims against Denbighshire County Council and the Welsh Ministers, alleging negligence and breach of statutory duty concerning vegetation which restricted visibility at the junction. The High Court struck out the claims and entered judgment for the Part 20 defendants in [2016] EWHC 2541 (QB). The driver appealed, challenging the finding that no relevant duty of care was owed in respect of vegetation on adjoining land and the conclusion that vegetation on or over the highway had no real prospect of being causative.

Sir Stephen Richards gave the leading judgment, with Lord Justice Singh agreeing. The appeal was dismissed.

1. Applicable approach. The question of duty was governed by the incremental approach summarised in Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595. Since the precise situation had not been determined by authority, the court considered the closest analogies, legal coherence, the avoidance of inappropriate distinctions, and the reasons for and against recognising liability.
2. Adjoining land. Yetkin v Mahmood [2010] EWCA Civ 776 was not a direct precedent. It concerned a crossing facility and vegetation on the highway. Likewise, Gorringe v Calderdale MBC [2004] 1 WLR 1057 concerned conditions on the highway itself. The present case concerned vegetation on land adjoining the highway, and any duty would apply equally to private landowners, occupiers and contractors.
3. Policy and statutory powers. Extending liability to vegetation, buildings, fences or other structures on adjoining land would impose a substantial and uncertain burden on landowners. Planning controls and highway authorities’ public-law powers addressed such matters more appropriately. The imperfect road network and the primary responsibility of drivers to take care also weighed strongly against liability. A failure to exercise a statutory cutting-back power did not create negligence liability, and previous maintenance did not alter that conclusion. The Council was therefore entitled to judgment independently of the position of the Welsh Ministers.
4. Causation and summary judgment. The judge was entitled to conclude from the photographs and available evidence that there was no real prospect of proving that the small amount of vegetation on or over the highway, rather than the dense vegetation on adjoining land, caused the accident.
5. The order striking out the Part 20 claims was upheld.

1. Court of Appeal (Civil Division): The appeal was dismissed on 4 May 2018. Sir Stephen Richards gave judgment and Lord Justice Singh agreed: [2018] EWCA Civ 1006.
2. High Court, Queen’s Bench Division: His Honour Judge Pearce struck out the Part 20 claims against the Council and the Welsh Ministers and gave judgment in their favour: [2016] EWHC 2541 (QB).