West Sussex County Council v Sarah Caroline Russell (2010)

A judge had been entitled to find that a highway authority was in breach of its duty of care under the Highways Act 1980 s.41(1) to a driver who had lost control of her car after driving on to the verge of a road which had not been properly maintained. The judge's 50 per cent reduction of the award of damages on the basis of the driver's contributory negligence for driving at excessive speed in difficult weather conditions could also not be faulted.

The appellant highway authority appealed against an order for damages in favour of the respondent road traffic accident victim (R). R cross-appealed against the 50 per cent reduction in the award for contributory negligence. R had crashed into a tree and suffered serious injuries after losing control of her car while driving on a frosty road. Although R was driving within the speed limit, it was accepted that she was driving too fast for the conditions. She had driven on to the verge on a narrow part of the road where there was a difference in height, or "drop-off", between the carriageway and the verge. The highway authority had resurfaced the road two-and-a-half years previously and had applied topsoil to the verge to raise its level to approximately that of the carriageway. However, the level of the verge had sunk by the time of the accident. R brought proceedings under the Highways Act 1980 s.41(1). A road traffic collision unit officer (N) considered the height of the drop-off to represent a significant hazard to any vehicle that was on the edge of the carriageway. Road safety experts instructed on behalf of both parties agreed with N. The judge found that s.41 applied as the verge was the responsibility of the highway authority and that the highway authority had failed to establish a defence under s.58(1). The highway authority had conceded that the verge was part of the highway and appealed on the grounds that the judge had not held it to be in breach of its duty of care under s.41(1) and that if he had, he was wrong to do so and should not have rejected its defence under s.58(1). The highway authority contended that if the drop-off area was a hazard at all, it was a hazard only for people like R who were driving at excessive speed. It queried whether the statutory obligation was set so high as to require the verge to be maintained at a level which would enable a driver who had lost control of their vehicle to regain the carriageway. R argued that the highway authority's breach of its duty of care was the substantial cause of the accident and that the judge had not identified the speed at which it would have been otherwise than negligent for her to have driven.

HELD: (1) Section 41(1) raised two questions: whether the relevant area was part of the highway and, if so, whether the highway authority had failed to maintain the highway. It was unfortunate that the judge appeared to have only addressed the first question, which was not in issue. However, that did not mean that the error was appealable. The judge had addressed at length the relevant jurisprudence and it was clear that he had held the highway authority to be in breach of its obligation under s.41(1). The expert evidence, to which the judge had referred at some length, drove that conclusion. The effect of that evidence from N and the other experts was inescapable and, even if it had not driven such a conclusion, on any view it entitled the judge to reach his clearly implied conclusion to that effect, Burnside v Emerson (1968) 1 WLR 1490 CA (Civ Div), Jones v Rhondda Cynon Taff CBC (2008) EWCA Civ 1497, (2009) RTR 13 (http://www.lawtel.com/content/display.asp?ID=AC0119495&Context=3841f715f89f47f48d64e7ccda2cb952), Kind v Newcastle upon Tyne City Council (2001) EWHC Admin 616, (2001) 36 EG 179 (CS) (http://www.lawtel.com/content/display.asp?ID=AC0101804&Context=3841f715f89f47f48d64e7ccda2cb952) and Rider v Rider (1973) QB 505 CA (Civ Div) considered. (2) The nature of the works previously undertaken by the highway authority, in particular the raising of the level of the verges to the level of the carriageway, demonstrated its acceptance that it was desirable that their levels should be broadly equivalent. The ease with which N had identified the height of the drop-off and the verdicts of N and the experts regarding the danger it represented provided ample justification for the judge's conclusion that, within the meaning of s.58(2)(d), the highway authority could reasonably have been expected to know that the height of the drop-off was likely to cause danger to users of the road. Also, fixed with that constructive knowledge, it had failed to prove for the purposes of s.58(1) that it had taken such care as was reasonably required to secure that the road was not dangerous for traffic. (3) R had been driving too fast in conditions of which she was well aware and there was no obligation on the judge to enter into speculation regarding the speed at which it would have been otherwise than negligent for her to drive on that stretch of road. Judges were required to do no more than state whether the facts found crossed the threshold set by the law. That R was contributorily negligent had been admitted and the judge's apportionment, which had been reached with the advantages of hearing live evidence and a more intricate enquiry, could not be faulted.

Appeal dismissed, cross-appeal dismissed


For the appellant: Edward Faulks QC, John Norman For the respondent: Derek Sweeting QC, Adam Clemens


For the appellant: Barlow Lyde & Gilbert LLP For the respondent: Russell-Cooke LLP

LTL 12/2/2010

Document No.: AC0123685