“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 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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 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.”