England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
H.H.J. McMULLEN, sitting as a deputy judge of the Division
LOWER COURT NO: HQ07X00585

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/02/2010

Lord Justice Wilson:

1. West Sussex County Council, the defendant, appeals against an order made on 25 March 2009 by His Honour Judge McMullen QC, sitting as a deputy judge of the High Court, Queen's Bench Division, by which he entered judgment for Mrs Russell, the claimant, against it and directed that her damages be assessed, albeit subject to a 50% reduction for contributory negligence.
2. The defendant is the highway authority for a highway off which, on 1 March 2004, the claimant, when driving a motor car, drove into a tree and thereby suffered serious personal injuries. She sued the defendant for a failure to maintain the highway under s.41(1) of the Highways Act 1980. The judge held, or rather (such being an issue in the appeal) may have held, that the defendant had failed to "maintain" the highway within the meaning given by law to that verb in the subsection. At all events he turned to consider the defence made available to a highway authority by s.58(1) of the Act, which requires it to prove that it has taken all such care as was reasonably required to secure that the relevant part of the highway was not dangerous for traffic. The judge held that the defendant had failed to establish that defence. Accordingly, subject to the finding of contributory negligence to which I have referred, he entered judgment for the claimant.
3. The defendant appeals on the primary basis that either the judge did not hold it to be in breach of s.41(1) or, if he did, he was wrong to do so. The secondary basis of the appeal is that he should not have rejected its defence under s.58(1). In either event, says the defendant, it should therefore not have been held liable to the claimant at all. Its tertiary, fall-back, position is that he should have set the level of the claimant's contributory negligence at substantially higher than 50%. The claimant cross-appeals on the basis that the judge set the level of her contributory negligence too high and should have set it at only 20%. Neither party challenges the judge's primary findings of fact.
4. On the date of the accident the claimant was aged 48 and lived in Ockley, a village which lies south of Dorking, with her husband and teenage son. At the time of the accident she was driving her son to school in Lancing. The journey takes about 40 minutes. She drove her VW Golf TDi motorcar. Her son was in the front passenger seat. Ockley lies on the A29 road which runs from north to south as far as Bognor Regis. The claimant's preferred route was to take the A29 southwards for about four miles and then, where the A29 intercepts with the A281, which runs west/east, to turn left, go east for a bit and then drive on down to the coast. The accident occurred on the A29, about three miles south of Ockley and shortly before the intersection to which I have referred.
5. It was a frosty morning. As she waited for her son to get ready, the claimant ran the engine of the car in order to heat it and so to defrost the windows. They set off at about 7:45am. As it stretches south towards the intersection the A29 is a relatively straight road and, at that time of the morning, not much traffic goes south but a certain amount, heading no doubt for London, goes north. In the event no other motorcar was involved in the accident. During the few seconds of its sequence, no other car travelling south was either visible in front of the claimant or able to see her car from behind and there was no car travelling north within her sight or within sight of her.
6. At the point at which the sequence of the claimant's accident began, the road bends slightly to the left but not so as to reduce good visibility. The defendant had resurfaced the carriageway in about October 2001 and, apart from the condition of the verge and in particular from the difference in height (known as the "drop-off") between the carriageway and the verge on the claimant's left-hand side, the road was in good condition. It had white lines to demarcate the middle of the road, some continuous and some dotted; and there were continuous white lines on each side of the carriageway, intended to indicate to drivers that they should keep on the carriageway within the lines. At the point at which the accident occurred the width of the entire tarmac carriageway was 6.2m and the width between the white lines on each side of the road was 5.6m. The judge observed that, were a car to be driven down the centre of the carriageway, it had about 0.5m to spare before it went into the verge. On any view the road was fairly narrow by A road standards and there was only a small width of carriageway outside the white lines.
7. Underneath the road at this point and crossing it from west to east is a river. Thus the road acts as a bridge over it. But no incline and accordingly no decline are necessary for the road to act as a bridge. The road-user would realise that he was travelling over a bridge only because of the existence of two brick parapets, built fairly low, on either side of the road, well set back from the road on the far side of the verges.
8. When in October 2001 it relaid the carriageway with tarmac, the defendant applied topsoil to the verges which brought their level approximately up to the level of the carriageway. But anglers fish that river; and it was their practice prior to the accident for them to park their cars on the verge, in particular (so it would appear) on the eastern side of the road, from just north of, to just south of, the bridge. It was not, of course, an authorised lay-by. Indeed the continuous white line on the sides of the carriageway is intended to indicate to drivers not to cross it. But it is the practice of local authorities sometimes to tolerate the unauthorised use of verges as lay-bys for fear that, if precluded from parking there, motorists will park more dangerously elsewhere.
9. The fact is that, between October 2001 and March 2004, the level of the eastern verge sank both by the bridge and to the point south of it where the claimant collided with the tree. The sinking was probably accentuated by the use of the verge by anglers as a place to park their cars. About an hour after the accident (which probably occurred at about 7:53am), P.S. O'Neill (who had become a sergeant by the time when he gave his evidence to the judge) conducted a survey of that part of the eastern verge, and in particular of the height of the drop-off between the carriageway and the verge; he found that its height was variable but measured between four inches minimum to up to one foot maximum and that, while in parts the drop-off sloped or was (to use his word) chamfered, in others it was sheer.
10. The judge found that, at the time when the sequence of the accident began, the claimant was driving at about 45mph. Although she had left Ockley and was thus outside the 30 mph restriction which protects it and although she was driving down a rural road in relation to which the maximum permitted speed was 60mph, she was (as was accepted on her behalf) driving too fast in circumstances in which, as she knew, there had been on that morning a hoar frost or (as it was also described) ice dew. The judge found that, at the time of the accident, the ambient temperature was about 0°. The claimant's expert, Mr Runacres, being a principal consultant to the Transport Research Laboratory and a distinguished expert in matters of road safety, explained that, when a car runs over hoar frost on a road, its tyres often melt it, whereupon – at such a temperature or lower – the water refreezes and forms black ice. The claimant probably skidded on black ice. She skidded somewhat to her left and her nearside front wheel – or both her nearside wheels – left the carriageway and (so the judge found) dropped down on to the edge of the verge, upon which it – or they – momentarily bumped along.
11. P.S. O'Neill found scuff marks on the inside of both of the claimant's nearside tyres. It was agreed between Mr Runacres and one of the defendant's experts that the scuff marks indicated that the nearside wheels of the claimant's car had indeed dropped down off the carriageway and that the inside of the tyres had become scuffed by rotating hard against the drop-off. Nothing turns on the fact that the judge found that "at least … the front nearside wheel" had dropped off, he apparently being less clear that the rear such wheel had also done so. How high was the drop-off at the point where the wheel or wheels had dropped? The experts were agreed that, notwithstanding the sergeant's maximum measurement, the drop-off could not, at the relevant point, have been as much as a foot because the under-carriage of the car would have precluded its nearside wheels from running upright and hard against the drop-off if they had been as much as a foot lower than the offside wheels. In the event the judge found that, at the point when the sequence of the accident began, the height of the drop-off was "almost six inches".
12. Then, of course, the claimant tried to restore the car to the carriageway. But the fact that the inside of her nearside wheels were running hard against a drop-off almost six inches high made the manoeuvre very difficult. In order to regain the carriageway the claimant had to steer violently towards her right and, although she thereby achieved the return of the car to the carriageway, she found herself on the wrong, western, side of the road. Fortunately, as I have said, no car was coming in the opposite direction. Thereupon of course she steered hard left in order to regain her correct side of the road; but – because of her speed – such again was a difficult manoeuvre and unfortunately she overcompensated and steered the car sharply to her left, off the road, across the verge and, tragically, into a tree. The claimant was rendered unconscious and the fire brigade had to cut open the roof of the car in order to extricate her from it. She suffered serious neurological and orthopaedic injuries. The injuries sustained by the son were relatively minor.
13. P.S. O'Neill was a highly experienced and well-qualified member of the Road Traffic Collision Unit of Sussex Police. He found frost on the road and a slippery road surface. It was his view that the height of the drop-off, as measured by himself, represented a significant hazard to a vehicle that for whatever reason had come to the edge of the carriageway. He at once communicated that view to the defendant by telephone. Indeed, on 4 March 2004, no doubt by reference to his findings, Sussex police made a crash intelligence report and, so it would seem, sent it to the defendant. In the report the police stated:

"Road surface has recently been relaid and is in good state of repair but due to the height of the new road surface the drop-off at the roadside is excessive (up to nearly 12 inches in places): it is suspected that the driver of the vehicle lost control of the vehicle to the near side and had to take excessive steering to regain the carriageway, due to the height of the surface in comparison to the grass verge, which in turn led to the loss of control of the vehicle totally, which subsequently collided with a tree."

14. Within a few weeks thereafter the defendant had, by application of further topsoil, raised the level of the verge on the eastern, and perhaps also the western, side of the road approximately to the level of the carriageway. It also placed marker posts at intervals along the edge of the verge in order, successfully so it seems, to prevent anglers and others from continuing to park their cars on the verge. In his analysis of the defendant's liability, however, the judge was correct not to attach any weight to the defendant's swift and successful efforts to preclude recurrence of a similar accident.
15. I first consider the duty of the defendant under s.41(1) and the way in which the judge approached it. The subsection states only that the authority is under a duty "to maintain the highway". The defendant accepted that a verge at the side of a carriageway is part of the highway. It was, however, also common ground that, notwithstanding the terminology of the subsection and the occasional reference in the authorities to the "absolute" nature of liability thereunder, the liability was less than to guarantee the safety of the highway for all users. The classic exposition of the duty is that of Diplock LJ in Burnside v.Emerson [1968] 1 WLR 1490, in which, at 1497A, he addressed the corresponding obligation of a highway authority under previous legislation. He defined the duty to maintain the highway as being "to put it in such good repair as renders it reasonably passable for the ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition". In Jones v. Rhondda Cynon Taff CBC [2008] EWCA 1497, being a decision of this court not cited to the judge, Laws LJ stressed, at [12], that the duty, thus defined, was significantly less stringent than to repair every defect in the highway which might foreseeably cause harm.
16. The judge duly quoted the subsection. He reminded himself of the test which Diplock LJ had propounded. He also noted the decision of Scott Baker J in Kind v. Newcastle-upon-Tyne Council [2001] EWHC Admin 616, in which a complainant unsuccessfully sought to hold a highway authority responsible for making verges reasonably available for the use of walkers, cyclists and horse-riders by extending the metalled carriageway over them. Scott Baker J held that the focus had to be on the condition of the highway as a whole. I do not accept that the mildly curious terminology deployed by the judge in addressing the decision in Kind betrays misunderstanding of it.
17. The judge also referred to the decision of this court in Rider v. Rider [1973] 1 QB 505. The claimant was a passenger in a car which her husband was driving and which collided with a van. The husband had been driving too fast. But the court upheld the judge's finding that the highway authority was, as to two thirds, responsible for the collision. The edge of the tarmac on the road abutted grass verges at a lower level and the edge had been inadequately repaired and in places "bitten off" so as to have become uneven. The trial judge found that the nearside wheels of the car had encountered an indentation on the edge of the tarmac and that such was, as to two thirds, the cause of the husband's loss of control. This court dismissed the highway authority's appeal. Sachs LJ stated, at 514E, that the authority's statutory duty was:

"… reasonably to maintain and repair the highway so that it is free of danger to all users who use that highway in the way normally to be expected of them … Motorists who thus use the highway, and to whom a duty is owed, are not to be expected by the authority all to be model drivers. Drivers in general are liable to make mistakes, including some rated as negligent by the courts, without being merely for that reason stigmatised as unreasonable or abnormal drivers … The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on their highways, and that includes those who make the mistakes which experience and common sense teaches are likely to occur."

18. No criticism is made of the judge in his analysis of the law surrounding s.41(1). The first two of the grounds of appeal relate, however, to his application of that law to the facts. Granted that his judgment was delivered ex tempore on the third day of the hearing, the judge's application of the defendant's obligation under s.41 to the facts of the case was, it has to be said, elliptical. He said:

"25. The first issue is whether s.41 applies. In my judgment it does. The verge is the responsibility of the highway authority: Kind above, certainly this part of the verge immediately adjacent to the drop-off.

26. The next question is whether section 58 provides a defence …"

19. Of course s.41(1) raises two questions, namely whether the relevant area is part of the highway and, if so, whether the defendant, as the statutory authority, failed to maintain the highway as a whole within the meaning of the jurisprudence. At any rate in paragraph [25] the judge appears only to have addressed the first question, which was not in issue. For the defendant had conceded that the verge, thus including the drop-off between the carriageway and the verge, was part of the highway. The issue was in relation to breach within the meaning of the jurisprudence. Paragraph 25 did not address it. This was unfortunate.
20. I cannot, however, subscribe to the suggestion that in that regard the judge fell into appealable error. He had addressed at length the relevant jurisprudence which posed the question whether, after due allowance was made for the likelihood that even normal drivers do not always drive well, the height of the drop-off rendered the highway as a whole not reasonably passable for ordinary traffic without danger. It is clear to me from other paragraphs of his judgment – indeed from its whole structure – that the judge held the defendant to be in breach of its obligation under the subsection. Indeed in my view the expert evidence – to which he referred at some length – drove that conclusion. It was the view of P.S. O'Neill, following his inspection of the site immediately following the accident, that the height of the drop-off represented "a significant hazard" to a vehicle that, for whatever reason, had come to the edge of the carriageway. Mr Runacres agreed: his evidence was that a drop-off of two or three inches would present no problem but that a drop-off within the parameters of height measured by P.S. O'Neill was – again – "a significant hazard" to the users of this road. Furthermore the two experts instructed on behalf of the defendant, namely Mr Hopwood, a highway engineer, and Mr Whitehead, a mechanical engineer with particular expertise in the investigation of road traffic accidents, each separately subscribed to a joint memorandum of agreement with Mr Runacres, the contents of both of which were significant. In particular, in their joint memorandum, Mr Runacres and Mr Hopwood agreed that the difference in level between the verge and the road surface constituted "a potential hazard" to road users. It was the defendant's contention both before the judge and before us that a hazard which was only "potential" did not achieve the level of danger necessary in order to amount to a breach of the subsection. In my view the judge addressed that point well in the following sentences:

""Potential" is crystallised when an event or a sequence of events occurs and the purpose of having a verge is to allow for the exceptional case of a car going off the road. Take a simple example: a trench, a ditch or a gutter, a foot deep, immediately abutting the metalled plane, would be a potential hazard and would actually be dangerous because it is foreseeable that a car, for one reason or another, may cross the unbroken white line."

Nor do I accept that the judge's use of the concept of foreseeability in the latter sentence of that passage betrays the error of approach identified by Laws LJ in Jones, cited above.

21. In a highly attractive submission Mr Faulks QC reminds us that this is a rural road; that the white lines on each side have been painted there by the defendant in order to indicate to drivers that they should not exceed them; and that topsoil in the verges will inevitably sink down below the level of the carriageway and will represent an inherently soft surface, particularly in winter (as indeed found on the day of the accident by P.S. O'Neill). But in particular Mr Faulks stresses that the height of the drop-off would not have represented a danger to drivers who were pulling off the carriageway in order, whether for fishing or otherwise, to park or halt. If the drop-off was a hazard at all, says Mr Faulks, it was a hazard only for those, like the claimant, who were driving at excessive speed. Rhetorically he asks: is the statutory obligation set so high as to require the maintenance of a verge at a level which will enable the carriageway to be regained by the driver of a car which, out of control, has dropped down on to it? The answer to that question is in my view squarely located in the judgment of Sachs LJ in Rider, cited and quoted above. I do not see how Mr Faulks can, by these points, escape the plain effect of the evidence of P.S. O'Neill and of the experts; and were I to be in error in having concluded that their evidence drove a conclusion that the defendant was in breach, it on any view entitled the judge to reach his clearly implied conclusion to that effect.
22. I turn to the defence under s.58(1) of the Act. The subsection provides that it is a defence:

"… to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."

Subsection (2) provides that, for the purposes of the defence, the court shall in particular have regard to:

"(a) the character of the highway, and the traffic which was reasonably to be expected to use it;

(b) the standard of maintenance appropriate for a highway of that character and used by such traffic;

(c) the state of repair in which a reasonable person would have expected to find the highway;

(d) whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway;

…"

23. There is, in my view, not much to be said in favour of the existence of a defence for the defendant under the first subsection. The nature of the works undertaken by the defendant in 2001, in particular its raising the level of the verges to the level of the carriageway, demonstrated its acceptance that it was, to put it at its lowest, desirable that their levels should be broadly equivalent. In this regard the defendant again stresses that topsoil will inevitably sink down, particularly if compressed by the unauthorised parking of cars. It relies upon the absence both of any reported accident at the site and of any recorded complaint about the state of the verge in general or about the height of the drop-off in particular. Its evidence was that routine inspections of that road were conducted monthly by two of its officers, travelling down it at no more than 30mph. Its area Highways Manager gave evidence that, even had the height of the drop-off been identified by the officers (which it was not), the defendant would have categorised it as a defect to be addressed only if and when other works had to be undertaken at the site. In my view, however, the ease with which P.S. O'Neill identified the height of the drop-off and the verdict of himself and the experts as to the danger which it represented provided ample justification for the judge's conclusion that, within the meaning of s.58(2)(d), the defendant could reasonably have been expected to know that the height of the drop-off was likely to cause danger to users of the highway and that, fixed with that constructive knowledge, it had failed to prove, for the purposes of the first subsection, that it had taken such care as was reasonably required to secure that the highway was not dangerous for traffic, i.e. by again raising the level of the verge.
24. Another ground of appeal relates to the judge's treatment of the causation of the accident. In his final substantive paragraph his treatment of it was on any view clear and consonant with his conclusion: for there he stated that "the two factors causing the accident were the state of the road and the state of the driving". It is, however, an earlier paragraph of the judgment upon which Mr Faulks alights. There the judge had said that the claimant "might have been all right had the drop-off or the descent to the verge not been as severe as it was". Had he said that the claimant "would have been all right …" the judge's own treatment of causation would (concludes Mr Faulks) indeed also have been all right. But, so the argument runs, it is entirely insufficient for the conclusion to have been that, had the drop-off been less high, the claimant might have been all right. Yet surely the judge was there only saying – was he not? – that, had the drop-off not been dangerously high, the claimant might not have suffered any sort of accident at all but that, alternatively, she might in that event have suffered some sort of accident. The central task of the judge was of course to address the causation of the injuries actually sustained by the claimant, not of some possibly minor accident of an entirely hypothetical kind. In that former respect his conclusion, as ultimately set out, was not only entirely clear but in my view inevitable. For it was recorded by Mr Runacres and Mr Whitehead in their memorandum of agreement that:

"7. It is agreed that the "drop-off" that was present at the nearside edge of the carriageway would have made it much harder for any driver to have regained the carriageway and to have retained control of their vehicle. That is, when compared to a situation where the verge is level with, or slightly higher than, the carriageway edge.

8. Therefore, it is agreed that the "drop-off" at the carriageway edge probably contributed significantly to the outcome of the incident."

25. I turn to the rival complaints about the proportion of the claimant's contributory negligence favoured by the judge. As both counsel accepted before us, it is hard to expatiate on an issue of this kind. Although, on behalf of the claimant, Mr Sweeting QC contends that her car skidded only marginally off a relatively narrow carriageway and that the defendant's breach of duty thereupon made its substantial contribution, the fact is that, in conditions of which she was well aware, the claimant was driving significantly too fast. Mr Sweeting complains that the judge never identified the speed at which it would have been otherwise than negligent for the claimant to have proceeded down that stretch of road. In my view there was no obligation upon him to enter upon such dangerous speculation. We judges have many burdens but at least our duties require us to do no more, unless we wish to do so, than to state whether the facts which we have found cross, or fail to cross, the threshold which the law has set for us. That to a limited extent the claimant was contributorily negligent was admitted, even before the judge. Mr Sweeting wishes to argue that, were the claimant's speed to have been only slightly higher than that of a reasonably careful driver, the attribution to her of responsibility for her injuries should have been very much less than that to the defendant. But I cannot fault the judge's ultimate apportionment, reached with all the advantages of exposure to live evidence and of a more intricate enquiry than we can conduct.
26. Mr Faulks tells us that the judge's determination has provoked considerable disquiet among highway authorities about the standard of maintenance required of them. It would go too far to say that the judge's determination, which, as already appears, should in my view be upheld, turns on its own facts. But determinations of this character are extremely fact-sensitive. This is a decision about the height of a drop-off between a carriageway and a verge in all the circumstances of this case, including the relative narrowness of the road (even though it was an A road), its relative straightness and thus the encouragement to speed which it represented, its wooded environs, conducing in particular to shade, to damp and to the sinking of top-soil on its verge, and the further effect on the level of the verge caused by its use as an unauthorised lay-by, such use being clearly visible from the condition of the ground even when not actually so used.
27. For the above reasons I would dismiss both the appeal and the cross-appeal.

Mr Justice Henderson:

28. I agree.

Lady Justice Arden:

29. I also agree.