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Cite as: [2018] 3 All ER 1049, [2019] QB 430, [2018] WLR(D) 275, [2018] EWCA Civ 1006, [2019] 2 WLR 145, [2018] WLR (D) 275, [2018] RTR 26, [2018] PIQR P16

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		Neutral Citation Number: [2018] EWCA Civ 1006
		Case No: B3/2016/4090

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CHESTER DISTRICT REGISTRY
His Honour Judge Pearce
[2016] EWHC 2541 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL

04/05/2018

B e f o r e :

LORD JUSTICE SINGH
and
SIR STEPHEN RICHARDS
____________________

Between:

	Roy Sumner	Claimant
	- and -
	Michael Colborne	Defendant / Part 20 Claimant / Appellant
	- and -
	(1) Denbighshire County Council (2) The Welsh Ministers	Part 20 Defendants / Respondents

____________________

Tim Horlock QC (instructed by Horwich Farrelly Solicitors) for the Appellant
Andrew Warnock QC (instructed by Weightmans LLP) for the First Respondent
Lloyd Williams QC and Nicholas David Jones (instructed by Blake Morgan LLP) for the Second Respondent
Hearing date : 24 April 2018
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Stephen Richards :

Introduction

This appeal arises out of a road traffic accident in daylight on 15 June 2014. The claimant was cycling along the A494 road heading away from Ruthin when he was in collision with a Rover motor car driven by the defendant as it emerged from an unnamed minor road on the claimant's left. The claimant sustained serious injuries in the accident. He brought proceedings in negligence against the defendant, who denies liability and alleges contributory negligence.

The defendant further contends that visibility at the junction was severely restricted by the presence of vegetation to his right, in particular on a fenced-off parcel of land bordering the A494 and the minor road at the junction. He commenced Part 20 proceedings against Denbighshire County Council ("the Council") and the Welsh Ministers, alleging negligence and/or breach of statutory duty in relation to the state of the vegetation and seeking a contribution in respect of any liability he might be found to have to the claimant. The Council was the highway authority responsible for the minor road. The Welsh Ministers were the highway authority responsible for the A494, though most of their functions as highway authority had been delegated through various service agreements to the Council. The Welsh Ministers also owned the parcel of land at the junction, having acquired it for improvement works carried out by them in 2007-2008.

On applications by the Council and the Welsh Ministers for a strike-out and/or summary judgment on the Part 20 claim, His Honour Judge Pearce struck out the claim against each of them and gave judgment in their favour. The present appeal is brought by the defendant against the judge's order.

The main issue in the appeal is whether the Council and the Welsh Ministers owed users of the highway a duty of care in respect of vegetation on the land at the junction (i.e. vegetation not itself on or over the highway) that impaired visibility for users of the highway. A secondary issue is whether the judge should have found there to be real prospect of the defendant establishing at trial that a small amount of vegetation on or over the highway itself was causative of the accident.

The facts in greater detail

As I have said, the Welsh Ministers acquired the land at the junction for the purpose of carrying out improvement works there. Originally the land was part of a larger field and was fenced where it bordered the A494 and the minor road. On the inside of the fence was a drainage ditch which ran along the line of the A494 up to the minor road and then under the minor road. The improvement works carried out in 2007-2008 involved the running of the ditch along a stone channel and then its diversion into an enclosed culvert from a point about six metres away from the minor road, with an area of vegetation replacing the ditch between the start of the culvert and the minor road. The fence bordering the roads was retained but an additional fence was built on the field side of the channel, so as to create a fenced-in area of vegetation of about twenty square metres. Prior to the improvement works, the area could be grazed by livestock, though there is no evidence as to whether it was in fact so grazed. As a result of the improvement works, it was no longer accessible for grazing by livestock.

The need to maintain the vegetation so as to prevent it restricting visibility at the junction was identified in safety audits carried out for the Welsh Ministers. We were not provided with documentation relating to the safety audits but we were told that a June 2009 audit (following completion of the improvement works) referred to "problem … visibility from the minor road … Visibility both right and left for vehicles exiting the junction is substandard. Visibility to the right will be further restricted if the vegetation in the sight line is not cut back regularly". In consequence, work of cutting back the vegetation was included within normal cyclic maintenance operations carried out by the Council (acting in this respect as the delegate of the Welsh Ministers). Work of maintenance on the vegetation was recorded as having been carried out on 10 June 2014, only a few days before the accident, but the record was plainly erroneous. At the time of the accident, the vegetation was of a height and density that restricted visibility to the right for drivers emerging onto the A494 from the minor road. It was cut back by the Council following the accident.

More specifically, the state of the vegetation was described as follows in an expert report by a Mr Hopwood, quoted by the judge below:

"At the time of the accident, the vegetation had reached a height of 1.4 or 1.5 metres. This is above the eye height for the drivers of most cars and therefore, in my opinion, was dangerous. In addition to its height, the vegetation was relatively dense being an area of about six metres deep."

The point was illustrated by photographs taken by the police immediately after the accident and showing "a driver's eye level view towards Ruthin" (i.e. looking to the right towards the A494 from the minor road) at, respectively, 4 metres, 3 metres, 2 metres and 1 metre before the junction and at the junction mouth.

How soon the defendant could have seen the claimant cyclist and how much time they would each have had to react before the accident are matters for determination at trial and would depend not just on the extent of the vegetation but also on factors such as the claimant's speed and position on the carriageway of the A494, which should have taken account of a road sign warning of the junction, a "slow" notice on the surface of the carriageway, and the fact that the A494 was bending to the left as viewed by the claimant on his approach to the junction. An extreme example of the possible effect of the vegetation on visibility is, however, given in a further passage in the expert report quoted by the judge (with the judge's own interpolations):

"The available view at the junction. Given that the speed limit of the A494 was 60 miles an hour, to ensure safety the view to the right from the junction [that is to say, the view that Mr Colborne would have had in the direction from which Mr Sumner was cycling] should have had a stopping sight distance of at least 122 metres and as much as 200 metres [subject to which one of two different standards that are referred to is applied]. Either way, at the time of the accident the stopping sight distance was about 18 metres which was way below, i.e. just 15 per cent, of what either national standard indicates."

We were not shown those national standards but we were informed that they are likely to be standards that would apply today if a new junction were being designed. Clearly many roads in this country, especially in rural areas, have origins going back many decades if not centuries, so that junctions will not comply with modern design standards.

The judgment below

The judge referred first to the duty under section 41 of the Highways Act 1980 to maintain the highway. It is unnecessary to say anything further about that, however, because the defendant does not appeal against the striking-out of his claim under that section.

The judge referred next to the power under section 154 of the Highways Act 1980 to secure the cutting back of shrubs etc. that obstruct the highway or interfere with the view of drivers of vehicles. He pointed to the constraints upon bringing a claim based on the negligent failure to exercise such a power: see Stovin v Wise [1996] AC 923 and Gorringe v Calderdale MBC [2004] 1 WLR 1057. He said that those cases left open the question of liability for the negligent exercise of a power, and by way of example he cited a passage from the speech of Lord Hoffman in Gorringe at para 13:

"An individual who suffered damage because of some positive act which the authority had done to make the highway more dangerous could sue for negligence or public nuisance in the same way as he could sue anyone else."

The judge noted that that principle was well demonstrated by the decision of the Court of Appeal in Yetkin v Mahmood [2010] EWCA Civ 776. Yetkin concerned an accident on a dual carriageway with a central reservation on which the highway authority had planted various shrubs, bushes and plants. There was a pedestrian crossing controlled by traffic lights, with a designated area (described as a "sheep pen") on the central reservation through which pedestrians had to pass. The claimant had crossed safely to the central reservation. She then stepped out into the further carriageway without waiting for the lights to change in her favour. She was hit by a car and suffered serious injury. She brought proceedings against the highway authority, alleging that it had breached its common law duty to her as a road user by planting and/or failing to maintain properly the vegetation on the central reservation which had obscured her view of oncoming traffic. The Court of Appeal found in favour of the claimant.

In her judgment in Yetkin, with which the other members of the court agreed, Smith LJ quoted para 13 of Lord Hoffmann's speech in Gorringe in full and commented on it as follows:

"17. This passage is important in my view even though the case we are concerned with is not about a failure to maintain the highway. It is important because it recognises that, long before there was any private law duty of highway maintenance on a parish or highway authority, that authority could be liable to a road user on exactly the same basis as any other person whose positive actions affected the safety of the highway and caused damage. Such a liability could arise in a great variety of ways, not limited to the physical condition of the road surface or the placing of obstructions on the roadway. Restricting visibility by creating clouds of smoke was one type of activity which could give rise to liability. It would matter not whether the action was taken by an adjacent landowner burning off stubble, a private individual setting a bonfire on the verge or similar actions undertaken on behalf of the parish. The common law recognised a duty on any person not to create a hazard on the highway which would affect the safety of road users. The extent of the duty would be a matter of fact and degree; the common law has only ever imposed a duty to do what was reasonable (or avoid doing that which was unreasonable) in all the circumstances."

Later in her judgment, having considered further passages from Gorringe, Smith LJ stated:

"25. I do not think that Lord Hoffmann could have made it more plain that Gorringe's case … was not concerned with cases where the public authority has done something positive which has or may have given rise to a common law duty of care. The House of Lords was saying nothing to gainsay the well-established law that a person who does an act which affects the safety of the highway will generally owe a duty of care to road users and if there is a breach of that duty liability will follow. It is impossible to contend that Lord Hoffmann intended to lay down any new rules or conditions about the extent or scope of the duty of care of a highway authority which creates a hazard on the highway."

Applying that approach, Smith LJ found liability in Yetkin itself on the following basis:

"33. … This highway authority owed a duty to all road users (whether careful or negligent) to use reasonable care in the manner in which it exercised its powers when it created and maintained the crossing facility …. It was the authority's intention that pedestrians would rely on the traffic light system but it was entirely foreseeable that pedestrians would not do so and would cross without waiting for the lights. It was therefore obviously necessary to give pedestrians a good view of the carriageway. The planting of vegetation in the raised beds of the central reservation is obviously a reasonable exercise of the authority's powers but to plant shrubs that will grow so large as to obscure the view and then not to ensure that they are trimmed back is a negligent exercise of those powers …. I have no doubt that, in the circumstances of the case, the local authority had a common law duty of care towards the claimant, notwithstanding her own negligence, that that duty was breached and that the breach was a cause of the accident."

The defendant's central contention before the judge in the present case was that the Welsh Ministers and/or the Council could be found liable in negligence on a basis similar to that in Yetkin, as having created a danger to users of the highway by changing the layout of the land at the junction in such a way as to allow vegetation to grow and obstruct visibility unless properly maintained. In rejecting that contention, the judge accepted the argument of the Part 20 defendants that the relevant duty of care to users of the highway related to the creation of dangers on the highway, not to the creation of dangers on land adjacent to the highway:

"In my judgment, for the defendant to succeed on the argument that either Part 20 defendant or both Part 20 defendants are liable in negligence for having failed to maintain a situation that they had dangerously created would require the defendant to show that the danger that had been created was a danger which projected onto or at least over the highway. I say so for the following reasons: if landowners adjoining the highway were liable for what they did on their land which did not in fact infringe onto the highway, it seems to me it is highly surprising that there are no reported cases to that effect. Secondly, it seems to me that the judgment of Lady Justice Smith in Yetkin, whilst possibly not directly considering the factual distinction that arises in this case, in general terms supports the interpretation relied upon by the Part 20 defendants that liability only arises for a danger on the highway, not a danger next to the highway. Thirdly, it seems to me that the imposition of liability in the circumstances contended for by the defendant would impose a burdensome duty on landowners which would substantially affect the way that they could use land. Again, for the third time, I refer to Mr Jones's point about how farmers use and crop land. There is force in that argument. Equally, it would give rise to the possibility that somebody building a building on their own land might thereby become liable in negligence to a road user whose line of vision was affected by that. That seems to me undesirable. Fourthly, it seems to me that the argument that there is a responsibility on road users to use a necessarily imperfect road network safely through their management of their vehicles militates strongly against extending, as it seems to me it would be, the duty of care from dangers literally on the highway to those adjacent to the highway."

The defendant argued further that, even if the principle of liability for negligently creating a danger to users of the highway related only to dangers actually on the highway, he could still rely on the principle because there was some projection of the vegetation onto the highway. The judge rejected that argument on the following basis:

"As far as the contention that, in fact, the vegetation here complained of was on or over the highway, I accept the factual contention that some of the vegetation visible on photographs 3 and 4 is on or over the highway. However, in my judgment, taking any sensible analysis of the situation, it seems to me that very little of the vegetation is on or over the highway and on the analysis of the case in Mr Hopwood's report, including as to the density of the vegetation, it seems to me that there is no real prospect of the defendant showing that it was the very small amounts of vegetation that were on or over the highway, rather than the general dense vegetation that was clearly on the second Part 20 defendant's land, that was the cause of the obstruction here."

A yet further argument of the defendant, that in their exercise of statutory powers the Part 20 defendants had assumed a responsibility to the defendant and/or the claimant, was rejected by the judge as going against the line of authorities, including Stovin and Gorringe. The argument is not pursued on the appeal.

The main issue: duty of care

Was the judge right to accept the argument of the Part 20 defendants that they were under no relevant duty of care as regards the state of the vegetation on the land at the junction?

The correct approach to the question whether a duty of care exists is summarised conveniently in the judgment of Lord Reed in Robinson v Chief Constable of West Yorkshire Police [2018] 2 WLR 595, at paras 21-30. It is sufficient to quote a few passages:

26. Applying the approach adopted in the Caparo case [Caparo Industries plc v Dickman [1990] 2 AC 605], there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients …. Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to reconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority) ….

27. It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond these principles in order to decide whether a duty of care should be recognised. Following the Caparo case, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority. The drawing of an analogy depends on identifying the legally significant features of the situations with which the earlier authorities were concerned. The courts also have to exercise judgement when deciding whether a duty of care should be recognised in a novel type of case. It is the exercise of judgement in those circumstances that involves consideration of what is 'fair, just and reasonable' ….

29. Properly understood, the Caparo case thus achieves a balance between legal certainty and justice. In the ordinary run of cases, courts consider what has been decided previously and follow the precedents (unless it is necessary to consider whether the precedents should be departed from). In cases where the question whether a duty of care arises has not previously been decided, the courts will consider the closest analogies in the existing law, with a view to maintaining the coherence of the law and the avoidance of inappropriate distinctions. They will also weigh up the reasons for and against imposing liability, in order to decide whether the existence of a duty of care would be just and reasonable …."

For the defendant, Mr Horlock QC submits that the decision in Yetkin as to the existence of a duty of care is either a direct precedent which should be followed as such or it provides a close analogy and inappropriate distinctions would arise if a duty of care is not accepted in the present context. He submits that this is an extreme case of reduction of visibility, arising out of the positive act of one or other of the Part 20 defendants in changing the use of the land by the junction in such a way as to create a recognised risk to visibility unless the vegetation were maintained thereafter. The hazard existed on the land (subject to the secondary issue concerning the small amount of vegetation on or over the highway) but, as was reasonably foreseeable, it affected the safety of users of the highway. The judge's distinction between hazards on the highway and hazards on adjacent land affecting users of the highway is artificial and would produce absurd and unfair consequences. The particular circumstances should be taken into account in determining breach and causation rather than the existence of a duty of care. If the accident in this case were found to have been the result of poor visibility at the junction and without carelessness on the part of the defendant, the claimant should be able to recover from a party who introduced that hazard at the junction.

Those submissions prompt some preliminary observations. First, I do not think that the issue should be approached on the basis that this is an extreme or exceptional case of reduction of visibility. There was plainly a serious visibility problem at this junction, but the precise extent and significance of that problem would fall to be determined at trial (see paras 7-9 above). Moreover, I have no doubt that there are many equally hazardous or more hazardous junctions on our roads, a point which ties in with observations by Lord Hoffmann in Stovin about the British road network, quoted later in this judgment. As submitted by Mr Lloyd Williams QC for the Welsh Ministers, the circumstances here are commonplace.

Secondly, the only positive act to which the growth of vegetation on the land at the junction could be said to be attributable is the work described at para 5 above, creating a fenced-in area of vegetation of about 20 square metres. That work was carried out by the Welsh Ministers, not by the Council. Although work of cutting back the vegetation was included thereafter in the Council's maintenance operations, in no sense could the obstruction to visibility at the time of the accident be said to have been the result of a positive act by the Council. The most that could be said against the Council is that it failed to cut back the vegetation so as to prevent it from obstructing visibility at the material time. But it is clear from Stovin and Gorringe that such a failure does not give rise to a liability in negligence; and that position is not affected by the fact that the Council had carried out work of maintenance on the vegetation in the past (see Lord Rodger in Gorringe at para 87). Accordingly, even if the Welsh Ministers were under a duty of care by reason of their positive act, there is no corresponding basis for the claim against the Council. This point, raised by the Council in a respondent's notice, justifies the striking out of the claim against it irrespective of whether the judge was right as regards duty of care, to a fuller consideration of which I now turn.

I do not accept the submission that Yetkin is a direct precedent as to the existence of a duty of care in the present case. It was concerned specifically with the creation and maintenance of a crossing facility on the highway, and the observations of Smith LJ have to be read in that context. It is true that she referred in general terms in para 17 to the liability of a highway authority to a road user on the same basis as any person "whose positive actions affected the safety of the highway and caused damage", but later in the same paragraph she expressed the point in terms of a duty "not to create a hazard on the highway which would affect the safety of road users" (my emphasis), and the examples she gave all related to hazards on the highway. So too in para 25 she referred to the "well-established law that a person who does an act which affects the safety of the highway will generally owe a duty of care to road users", but she went on to say that Lord Hoffmann in Gorringe did not intend to lay down any new rules or conditions about the extent or scope of the duty of care of a highway authority "which creates a hazard on the highway" (again my emphasis). Gorringe was likewise a case about conditions on the highway itself, in particular about the duties of a highway authority with regard to the painting of warning signs on the road surface.

By contrast, the positive act relied on in the present case related to things done on land adjacent to the highway, not on the highway, and the vegetation complained of was on that land and not on the highway (subject to the secondary issue which I will deal with separately). To put it another way, the vegetation obstructing visibility was located off the highway, albeit it affected the view from one part of the highway to another part of the highway (in this case from a minor road to a major road, but the principle under discussion would apply equally to a host of situations on the road network). It is probably wrong to refer to the vegetation as being in itself a "hazard", but in any event its effect on the safety of the highway arose solely from its particular location on land off the highway.

It will be apparent that the duty of care contended for by Mr Horlock does not depend on any special position of the highway authority but would apply in the same way to any owner of land adjacent to the highway. It would also presumably apply to any occupier, contractor or other party doing a positive act on such land; but it is preferable to avoid additional complexities and to examine the position simply by reference to the owner of land. Counsel have been unable to find any decided case where an owner of land adjoining the highway has been held to owe a duty of care to highway users in respect of vegetation on that land or indeed in respect of any comparable circumstance.

Mr Warnock QC, for the Council, drew our attention to a number of authorities concerning claims in nuisance and/or negligence by users of the highway against an adjacent landowner, but none of them is directly in point. In Holling v Yorkshire Traction Co. Ltd. [1948] 2 All ER 662, a manufacturer of coke was found liable in nuisance and negligence in respect of an accident caused by the discharge of smoke and steam across a road. As Oliver J put it at page 664F-G, "[the manufacturer's] artificial fog has no business on the road at all"; and, so far as negligence was concerned, it would have been simple to post a man at each end of the area affected to warn approaching vehicles as soon as a discharge was imminent. Noble v Harrison [1926] KB 332 concerned a claim in nuisance in respect of a tree overhanging the highway and the decision was limited to that issue.

There are two cases, or classes of case, identified by Mr Warnock where an adjacent landowner has been held liable to highway users for the creation of a danger fully contained on his own land, but both involve a person leaving the highway and coming upon a danger on the adjacent land; and I accept the submission that they are sufficiently far removed from the circumstances of the present case as to provide no real assistance. In Barnes v Ward (1850) 9 CB 392 a landowner was found liable in public nuisance to a plaintiff who strayed off the highway at night into an unfenced pit which the landowner had excavated on his own land at the highway's edge. Maule J, delivering the judgment of the court, referred to a number of similar cases involving unfenced drops. He concluded at page 956:

"The result is – considering that the present case refers to a newly-made excavation adjoining an immemorial public way, which rendered the way unsafe to those who used it with ordinary care – it appears to us after much consideration, that the defendant, in having made that excavation, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road; for, the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway."

In Crane v South Suburban Gas Company [1915] 1 KB 33 a utility company was found liable in negligence and nuisance when a fire pail placed on unenclosed land adjacent to the highway was accidentally knocked over by a passer-by, spilling molten lead onto a child and causing her injury. In dismissing an appeal, Avory J said at page 35 that he would have preferred to base the decision on the ground that "what the defendants were doing was a nuisance in the sense that they were doing something on or adjacent to the highway of a character which was dangerous unless steps were taken to guard persons using the highway from the danger". Lush J observed at page 37 that "[w]ith regard to a highway the obligation is not to create a nuisance on it, and adjacent land is for this purpose on the same footing as the highway itself", citing Barnes v Ward as one of the authorities in support of that proposition.

It seems to me in the light of those various authorities that the existence or otherwise of a duty of care in circumstances of the kind that arise in the present case has not been established by previous decision and that it falls to us to apply the incremental approach summarised in Robinson v Chief Constable of West Yorkshire Police to decide whether a duty of care should be recognised in this novel situation.

As regards analogies, Yetkin comes closest on its facts and gives some support to the defendant's case. Mr Horlock mounted an attractive argument that it is artificial to draw a distinction between hazards on the highway itself and conditions on land adjacent to the highway that affect the safety of the highway: why should it make a difference, for example, that smoke from stubble burning in a field adjacent to the highway obscures visibility by blowing onto the highway or obscures it around a bend of the highway or at a junction without actually blowing onto the highway? and why should a duty of care depend on which way the wind is blowing at any particular time? Mr Horlock also sought to rely by way of analogy on paras 42-43 of Gorringe where, referring to "the difficult case of Bird v Pearce [1979] RTR 369", Lord Hoffmann said that he "would certainly accept the principle that if a highway authority conducts itself so as to create a reasonable expectation about the state of the highway, it will be under a duty to ensure that it does not thereby create a trap for the careful motorist who drives in reliance upon such an expectation". Mr Horlock submitted that a careful motorist has a reasonable expectation that visibility will not be restricted to the extent that by emerging from a minor road he takes his life in his hands, as he suggested was the position here. I see no force in that submission. What the Part 20 defendants did in this case created no expectation as to the extent of visibility at the junction and created no trap; the fact that visibility was limited at the time of the accident would have been obvious to any careful driver.

When it comes to weighing up the reasons for and against imposing liability in a case such as this, the factors militating against the existence of a duty of care are in my view very powerful.

First, as Mr Warnock QC submitted on behalf of the Council, the imposition of a duty of care on owners of land to ensure that vegetation in their fields and gardens did not affect sightlines on neighbouring highways (at least where they had themselves planted that vegetation or had allowed its growth by positive acts such as the erection of fencing) would be profound. Farmers would need to consider visibility on the highway when deciding where to plant crops, hedges and trees, and when to harvest, prune or fell them. Similar issues would arise in relation, for example, to the planting of shrubs, hedges or trees in urban and suburban gardens. And whilst the present case concerns vegetation, the principle would extend to the erection of buildings, fences and other structures that might affect visibility on the highway. Planning controls and the powers of highway authorities provide a range of public law powers for dealing with these matters in appropriate cases. The court should be slow to supplement them by way of an onerous duty of care in private law.

One feature of the duty contended for would limit its practical impact, but in a way that underlines its unsatisfactory nature. The duty would apply only to a landowner whose positive act had created the situation giving rise to the visibility problem. If the land were then sold, a later owner would not be liable, since that owner would not have done the positive act and, as is acknowledged, would not be liable in negligence for a failure to maintain the vegetation or otherwise to remove the source of the visibility problem. Whether a claim could still be brought against the original landowner is something best left on one side.

A further important consideration is that, as spelled out by Lord Hoffmann in Stovin, the road network is imperfect and drivers must take it as they find it. Stovin concerned an accident at a junction that was known to be dangerous because the view was restricted by a bank of earth on adjoining land. The council had put forward to the landowner a proposal for tackling the problem but had not pursued the matter. The House of Lords held by a majority that the council was not under a common law duty of care to persons who suffered loss by reason of failure to exercise its statutory power. Lord Hoffmann gave the main speech for the majority. At page 958C-E he said this:

"In a case like this, I do not think that the duty of care can be used as a deterrent against low standards in improving the road layout. Given the fact that the British road network largely antedates the highway authorities themselves, the court is not in a position to say what an appropriate standard of improvement would be. This must be a matter for the discretion of the authority. On the other hand, denial of liability does not leave the road user unprotected. Drivers of vehicles must take the highway network as they find it. Everyone knows that there are hazardous bends, intersections and junctions. It is primarily the duty of drivers of vehicles to take due care. And if, as in the case of Mrs Wise, they do not, there is compulsory insurance to provide compensation to the victims. There is no reason of policy or justice which requires the highway authority to be an additional defendant."

Similar considerations apply to this case; and whilst there remains the possibility that the defendant will be found to have taken due care and that the claimant will not therefore be able to recover compensation from him, it is notable that the claimant himself has not claimed against the Council or the Welsh Ministers: that claim has been brought only by the insured defendant. One may add that if a duty of care were found to exist in the present case, it would be liable to encourage a marked growth in claims by drivers' insurers for contributions from owners of land adjacent to the highway in cases where visibility was an issue (and such owners would not necessarily have public liability insurance) and a marked growth in the business of providing expert advice to landowners on the implications of vegetation and structures on their land for visibility on the adjoining road network. These are potentially serious and costly consequences for very little practical gain.

For those reasons the judge was in my view right to accept the Part 20 defendants' case that they were under no relevant duty of care. It would not be just, fair and reasonable to find a duty of care in circumstances of the kind that existed here.

The secondary issue: vegetation on or over the highway

The secondary issue is a short one. As set out at para 16 above, the judge found that "there is no real prospect of the defendant showing that it was the very small amounts of vegetation that were on or over the highway, rather than the general dense vegetation that was clearly on the second Part 20 defendant's land, that was the cause of the obstruction here". Mr Horlock submitted that that was not a tenable conclusion. The photographs show that some of the vegetation protruded over the highway (in fact, over the pavement to the side of the road), and more towards the point where the defendant was emerging from the minor road. Its effect on the defendant's view may depend on matters yet to be established at trial, such as how far towards the middle of the road the claimant was and at what point it was reasonable for the defendant to look to the right. There will be relevant evidence from the claimant and the defendant, and reconstruction evidence as to the precise circumstances of the accident. The effect of the protruding vegetation cannot confidently be determined from the photographs alone.

I am not persuaded by those submissions. In my view the judge was entitled to conclude on the basis of the photographs and for the reasons he gave that there was no real prospect of the defendant establishing at trial that the vegetation on or over the highway, as distinct from the vegetation on the land by the junction, was causative of the accident. It is true that the precise details of the accident have yet to be established, but the areas of uncertainty are not sufficient to invalidate the judge's approach. The photographs showed enough for the purpose of deciding the issue on a summary basis.

Conclusion

I would dismiss the appeal.

Lord Justice Singh :

I agree.