England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EXETER COUNTY COURT
(His Honour Judge Gilbert)

		Royal Courts of Justice Strand London WC2 Friday, 19th April 2002

1. LORD JUSTICE KEENE: This is an appeal against the judgment of His Honour Judge Gilbert QC sitting at Exeter County Court and delivered on 3rd August 2001. In his judgment the judge found for the County Council in its capacity as highway authority in its claim against Mr. and Mrs Webber, who own and occupy Higher Radway Farm in Devon. That farm is about one hundred acres in extent, and it includes a number of fields on a south facing hillside above a public highway known as Teign View Road, Bishopsteignton. The judgment below accurately and helpfully summarizes what gave rise to the claim:

"On 29th May 1999 there was a violent rain storm of exceptional severity in the immediate area of Higher Radway Farm following which approximately 400 tonnes of silt and topsoil were washed on to Teignview Road, partly as a result of a run-off of water carrying soil and debris from the defendants' fields 'C' and 'D' and partly as a result of run-off from elsewhere. The highway was blocked to traffic. The claimant, as highway authority, had a statutory duty by section 150(1) of the Highways Act 1980 to remove the obstruction and the cost of so doing was £46,993.94, of which it is agreed between the parties, subject to liability, that the portion of the cost attributable to removing the soil and other material belonging to the defendants should be fixed at £30,000."

2. The Council claimed against the defendants under section 150(4) of the 1980 Act, which empowers the authority in such circumstances to recover from the owner of the obstructing "thing" the expenses incurred in removing the obstruction. That subsection also provides a defence for the owner in certain circumstances. Section 150(4), insofar as material to this case, reads:

"Where they are under a duty to remove an obstruction under subsection (1) above, a highway authority may -

(c) recover from the owner of the thing which caused or contributed to the obstruction, . . . the expenses reasonably incurred as respects the obstruction in carrying out the duty and in exercising any powers conferred by this subsection, but so that no such expenses are recoverable from a person who proves that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction."

3. Alternatively, the Council brought its claim in negligence based on an alleged failure to take reasonable steps to prevent soil being eroded from the defendants' land onto the highway. The judge duly noted that under the statutory provision, once the claimant establishes that it is under a duty to clear the obstruction and that the defendants were the owners of a thing which caused or contributed to the obstruction, neither of which was in dispute in the case, the burden passed to the defendants to prove that they took reasonable care to secure that the thing in question did not cause or contribute to the obstruction, failing which they are liable for the cost. In contrast, the burden of proof in a negligence claim remains on the claimant throughout. The defence raised was that reasonable care was taken, reasonable in all the circumstances, especially having regard to the minimal risk of wash-out from the field in question.
4. The fields from which soil and other material were washed onto the highway on this occasion in May 1999 were designated on plans used during the trial as fields C and D. In his careful judgment Judge Gilbert noted that there had not been significant wash-out from those two fields over a period in excess of 40 years, but there had been significant wash-out from two nearby fields designated A and B, both in 1989 and on two occasions in 1994. He found that it was only after those two further events in September and November 1994 that Mr. Webber accepted that he had to cease using fields A and B for arable use if wash-out of those fields and damage therefrom to adjoining property was to be avoided in future, and that unless he did so the risk would remain. Steps were in fact taken after those episodes to prevent wash-out from fields A and B. Some steps were taken after the 1989 episode but they failed to prevent the episodes in 1994. The judge found that, notwithstanding the exceptional rainfall, the rain which fell on fields A and B in May 1999, by which time they had been put down to set aside, ran off without washing out any more than an insignificant amount of soil. He also accepted that, had fields C and D been to grass or set aside in May 1999, the exceptional rain which fell that day would have passed over them without significantly washing out the soil and therefore without creating the obstruction complained of. He found that the fact that they were kept in arable cultivation, and were in such cultivation in May 1999, having recently been sown with linseed, was a significant contributory cause of the wash-out which occurred on the 29th day of that month. The judge went on to conclude as follows:

"I am satisfied on the evidence that the risk of wash-out in heavy rain from fields 'C' and 'D', if those fields were in arable cultivation, was reasonably foreseeable having regard to the similarity of the slopes of 'C' and 'D' to 'A' and 'B', having regard to the relative soil structures of those fields and having regard to the fact that there had been three significant wash-outs of fields 'A' and 'B' in the previous ten years, even in less severe rain than fell in May 1999.

Further, I am satisfied, having heard the evidence of the first defendant, that he himself was aware of the similarity of the slopes of fields 'C' and 'D' to fields 'A' and 'B' (he said in evidence, 'They are very similar slopes'), that he was also aware of the similarity of the soil structures (again, in evidence he said that 'A' is heavier than 'C'), that he was aware of the risk of wash-out from fields 'C' and 'D' in heavy rain if they remained under arable cultivation and that he was aware that the only safe way to avoid that risk was to put those fields down to grass, but that he chose not to do so because of the loss of income and financial viability of his farm which he believed would result."

5. So the judge concluded not merely that it was foreseeable that there would be wash-out from fields C and D in heavy rain, but also that Mr Webber was aware of that risk. Consequently, the judge found that the defendants had failed to prove that they had taken reasonable care to prevent the soil contributing to the highway obstruction, with the consequence that they were liable under section 150 of the Highways Act. He also found for the highways authority in negligence. The defendants now challenge that judgment.
6. Mr. Browne QC on their behalf emphasizes that the evidence was that the rainfall on 29th May 1999 was truly exceptional. Broadly speaking, this was a one in 200 year event. There is no issue as to that. The mere fact that significant wash-off of soil did occur on this occasion does not mean that the highway obstruction was reasonably foreseeable, such foreseeability being a necessary ingredient in the concept of 'reasonable care' in the defence under section 150(4). It is submitted that it was not reasonably foreseeable that there was a real risk of significant soil wash-out from fields C and D in heavy rain. Attention is drawn to a MAFF guide to farmers and consultants about erosion risks from arable land. That guide identifies slope, soil and rainfall as enabling a categorisation of land by the degree of risk. On the face of it, arable land with this average slope, this soil and this annual rainfall would come into the high or very high risk category. But Mr. Browne stresses that the guide itself emphasizes experience and local knowledge as modifying factors. He points to the references in the guide to the practical experience with the land, such matters, for example, as whether rills of water form during heavy rain. Thus, he said, the reasonable farmer would, while acknowledging the similarity of the slopes and soil of these two fields to those of fields A and B, where the past incidents of wash-off had occurred, had noted that in the last 40 years at least there had been no significant wash-off from fields C and D, that they had not washed off even in 1989 and 1994 when fields A and B had suffered wash-off, and that all the practical evidence was that the risk here was low rather than high. Mr. Browne notes that the expert witness called by the highway authority, Dr. Parkinson, accepted at trial that the blocking of buddle holes on a road uphill of the defendants' land had increased the flow of water across the land. When he was cross-examined, Dr. Parkinson could not say that there would have been erosion in conditions short of those which existed on 29th May 1999; that is to say, with a storm of a 200 year return date, and with the blocked buddle holes as well.
7. Reliance is also placed on the fact that Dr. Parkinson, in an earlier report after wash-off from fields A and B, made no reference to any risk that would exist in respect of fields C and D. It is said that, if the risk in respect of those fields was so obvious, that is a most surprising omission. Reference is also made to the fact that the highway authority served a section 151 notice after the 1989 incident in respect of fields A and B requiring preventative measures to be taken by the land owner. Nothing was done in respect of fields C and D, and consequently it is argued that if the County Council officers had felt that there was any risk in relation to fields C and D, they would have served notices in respect of those fields as well. All that goes, it is said, to show that no one foresaw the risk of wash-off from fields C and D and that the risk was not reasonably foreseeable.
8. Mr Browne also challenges the judge's finding that Mr. Webber was actually aware of the risk. By reference to transcripts of the evidence, it is argued that all that Mr. Webber was aware of was a theoretical risk and not one of any significance. Reliance is placed also on the cost to Mr. Webber of putting the two fields down to grass as the judge concluded he should have done. Fields A and B were already out of arable cultivation, and the result of putting fields C and D also to grass would have meant that about half the farm holding would have been so affected. It is said that the evidence shows that this might have rendered the farm unit uneconomic. At one point Mr. Browne, relying on this court's decision in Holbeck Hall Hotels Limited v Scarborough Borough Council [2000] QB 836, argued that one has to have regard to the ability of the owner of the thing to pay for such precautionary measures. But he did accept in argument that that is not determinative of what is to be seen as reasonable care. Rather, he contended that the cost of the measures and their financial effect on the owner is one factor to be weighed against the degree of risk and the gravity of the potential consequences of the risk. Finally, it is argued on behalf of the defendants that they did take certain steps which reduced any risk of wash-off by switching from winter to spring cultivation. I am bound to say that, in the light of the other evidence given by Mr Webber, it does not appear that those steps were taken deliberately with the intention of reducing any risk of wash-off. In any event, taking all those matters together, it is contended that the judge was wrong to conclude that the defendants had not taken reasonable care in all the circumstances.
9. For the highway authority Mr. Tolson QC accepts that reasonable foreseeability of damage is part of the concept of reasonable care under section 150(4) and also that cost in an objective sense of any preventative measures is relevant. However, he resists the argument about the owners' means based on the Holbeck Hall Hotels decision. That case, he says, in this respect is really dealing with the duty of care and with cases of non-feasance, whereas here one is concerned with positive activity by the landowner which has given rise to or contributed to the risk. Generally, as might be expected, the authority relies on the reasoning of the trial judge. Emphasis is placed on the similarity of slope and soil between these fields and those which had suffered the earlier incident. So it is argued that the obstruction of the highway was reasonably foreseeable. Given those similarities, Mr and Mrs Webber, it is said, should have sought advice at least about fields C and D. The MAFF guide would characterise the risk as high or very high. Moreover, Mr Webber was admittedly aware that there was a risk and yet he took no steps to evaluate it. The judge found as a fact that Mr. Webber took no care. That cannot be regarded as reasonable care. As for the financial impact of putting these fields to grass, Mr Tolson notes that various lesser measures could have been taken without causing undue hardship, as Mr. Webber conceded.
10. As will have been clear from my summary of the arguments advanced on behalf of the parties, the law in this case is not significantly in dispute, even though there is a remarkable absence of authority on the point insofar as it arises under section 150 of the Highways Act. Indeed, there is little authority generally on section 150(4). The case of Williams v Devon County Council (1967) 65 LGR 119 was a decision on this particular provision, or at least the predecessor of this provision, but it does not assist on what is meant by "reasonable care". None of the efforts of counsel on either side have been able to discover any more authority than that to which I have referred.
11. Reasonable care, however, is a concept well known to the law. It is the care which a reasonable person, in a case such as the present one, would have exercised in all the circumstances to prevent the thing owned by him from causing or contributing to an obstruction of the highway. It therefore involves a consideration of all the relevant circumstances. Those will include whether the risk of causing or contributing to such an obstruction of the highway was reasonably foreseeable or not, because if it is not the owner of the thing cannot be expected to take steps to secure that no obstruction arises. The measures necessary to avoid the risk materialising will be relevant. The concept of reasonable care will often involve considerations such as the difficulty and cost of such measures, the degree of risk of an obstruction of the highway occurring, and the gravity of the obstruction and any attendant damage likely if the risk materialises. That is not intended to be an exhaustive list.
12. It does not seem to me that the Holbeck Hall decision has much relevance in this situation where the landowner is himself carrying on an activity which creates or adds to the danger. True it is that the activity of arable farming is in no sense non-natural or abnormal in the countryside, but it is nonetheless a positive activity which the owner has chosen to engage in. In those circumstances, his lack of means to prevent a risk which he has created or increased should not be seen as a relevant factor. On the other hand, the relationship between the cost or financial impact of any preventative measures on the one hand and the gravity of the risk on the other is relevant in determining what is reasonable.
13. Reasonable care under section 150 is to my mind intended to be a broad common sense test. One gets some confirmation of that in the current context from the fact that under the next section, section 151, the highway authority has power to serve a notice requiring the owner or occupier of land adjoining a highway to execute works to prevent soil being washed off and obstructing the street, and any appeal against such a notice, which would also involve a consideration of what works were reasonable in the circumstances, goes to the magistrates' court. That also indicates that a broad approach to reasonable care is intended.
14. Reasonable foreseeability of damage is of basic importance because if the risk is too remote the landowner cannot be expected or required to take steps to guard against it. He will have taken reasonable care in any event in that situation. It is also important to recognize that risks vary from the remote to the grave. In that context I find it difficult to see how, on the evidence, the judge could have come properly to the conclusion that Mr Webber was actually aware of the risk of wash-out of soil from these fields in heavy rain (see the judgment at page 9B). The transcripts do not support a conclusion in those terms. Mr. Webber did indeed concede that he knew that there was a risk in effect with any sloping land. But that answer was not given on the basis that it was a risk at times of heavy rain. One is always reluctant to depart from such a finding by the trial judge. But the context does indicate that Mr Webber was doing no more than acknowledging a risk, with the emphasis on the "a". Elsewhere the witness was at pains to say that he did not anticipate any significant wash-off from these fields.
15. I return therefore to the question of reasonable foreseeability as an objective test. At first blush, the judge's reasoning seems impeccable: similar slopes and soils to fields A and B, earlier wash-off incidents in respect of those latter fields during the previous 10 years, and therefore the conclusion is drawn that it was reasonably foreseeable that fields C and D would experience wash-off in heavy rain. But there are significant factors which point the other way. Fields C and D, despite those similarities to fields A and B, had not experienced significant wash-off at the times when fields A and B had suffered such wash-off. Evidently they were not as vulnerable as fields A and B. There had been no incident of significant wash-off from fields C and D in over 40 years, as Mr. Webber well knew. Of course, there might be heavier rainfall on occasions than happened in 1989 and 1994, the years when fields A and B suffered and fields C and D did not. But the crucial question then is: would such predictable heavy rainfall be likely to produce an obstruction of the highway from fields C and D? Was such a consequence reasonably foreseeable? The events of 29th May 1999 do not assist on that because it is agreed on all sides that those were exceptional circumstances. Mr. Tolson does not suggest on behalf of the authority that those events of May 1999 by themselves indicate that wash-off obstructing the highway from these two fields was reasonably foreseeable. But even the authority's expert witness, Dr Parkinson, could not assist on this. I have referred already to his answer given in cross-examination to the effect that he could not say that there would have been soil erosion from these fields in conditions short of those experienced on 29th May 1989. There is no cogent evidence that such obstructive wash-off would occur or would be likely to occur in less exceptional circumstances than those of May 1999. On such evidence how could the reasonable person foresee obstruction of the highway in other than exceptional circumstances? That is added to, to a modest degree, by the absence of any anxiety or concern expressed in the past about these two fields, either by the highway authority or by Dr. Parkinson, despite their involvement in the earlier incidents. There is one earlier letter referring to Field D, but on a proper reading of that letter it is not expressing concern about the situation in Field D.
16. One readily acknowledges the form of categorisation of risk by the MAFF guide when referring only to slope, soil and rainfall as factors, but there is bound to be a great variety of local circumstances up and down the country affecting all three of those factors, and indeed within individual fields and parcels of land. That is why the guide also stresses the practical considerations of local knowledge and experience. When those are brought into the picture here, I can only conclude that a reasonable person would not have foreseen any real risk of wash-off obstructing the highway from those two fields in other than exceptional circumstances, such as occurred on 29th May 1999.
17. That really is an end to the matter. Whether Mr. Webber could have taken relatively cheap measures to reduce any risk or whether putting these fields to grass would have had a disproportionate effect on his livelihood becomes neither here nor there. He could not be expected to anticipate such highway obstruction because of wash-off from these fields in other than exceptional circumstances. He therefore was not required to take preventative measures. In my judgment, the burden of showing that reasonable care had been taken was discharged in this case by the defendants and their defence under section 150(4) was properly made out. It follows that the claim in negligence against them must also fail. In those circumstances and for those reasons I would allow the appeal.
18. MR. JUSTICE SUMNER: I also pay tribute to the careful judgment of His Honour Judge Gilbert QC. It was full with clear findings of fact. On the question of liability I agree with the judgment of Keene LJ and have nothing to add.
Order: Appeal allowed with costs here and below.