Court of Appeal: No duty of care on council to control roadside vegetation


Roadside vegetation: No duty of care

The Court of Appeal has rejected an attempt by a cyclist to impose a duty of care on central or local government to prevent roadside vegetation from impairing visibility for road users, saying there would “potentially serious and costly consequences” in doing so “for very little practical gain”.

Sir Stephen Richards said the impact of imposing a duty of care on owners of land to ensure vegetation in their fields and gardens did not affect sightlines on neighbouring roads would be “profound”.

He went on: “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.”

The Court of Appeal heard in Sumner v Colborne and others [2018] EWCA Civ 1006 that Roy Sumner was cycling along the A494 from Ruthin in Wales when he was by a car emerging from a minor road.

Michael Colborne, the driver, denied liability, and alleged contributory negligence, saying his visibility was “severely restricted” by vegetation in a fenced-off parcel of land bordering the road, owned by the Welsh government. Denbighshire County Council was responsible for the minor road.

His Honour Judge Pearce, sitting as a High Court judge in Chester, struck out Mr Colborne’s part 20 negligence claim against the council and the Welsh government.

Sir Stephen said “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 “the factors militating against the existence of a duty of care are in my view very powerful”.

He said it was notable that the claim had been brought only by the insured defendant, and not the claimant.

“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.”

Sir Stephen added that there was “no real prospect” of the defendant establishing that the vegetation was “on or over the highway” as distinct from on the land by the junction.

He dismissed the appeal. Lord Justice Singh agreed.




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