Sebastian Braithwaite v London Borough of Lewisham [2025] EWHC 782 (KB)

[2025] EWHC 782 (KB)Case No KA-2024-000114
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/04/2025
Before
MR JUSTICE COTTER
Between
SEBASTIAN BRAITHWAITEClaimant/AppellantLONDON BOROUGH OF LEWISHAMDefendant/Respondent
Abigail Holt (instructed by N V Legal) for AppellantVaughan Jacob (instructed by D A C Beachcroft) for RespondentHearing Hearing dates: 5 th March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 2 nd April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE COTTER

Introduction

[1]This is an appeal against the order dated 11th November 2024, made by His Honour Judge Saggerson (‘the Trial Judge’), after the trial of a personal injury action on 3rd and 4th June 2024, dismissing the claim. Permission to appeal was granted by the Honourable Sir Stephen Stewart on 16 December 2024.[2]The essential facts were not in dispute.[3]On 20th March 2019 at approximately 10.00pm (so during the hours of darkness), the Claimant/Appellant was proceeding along Dorville Road, London SE12 on his motorcycle. He was going through what he described as “back streets”, due to a lorry causing a blockage on the main road.[4]Although it was dark, the street lighting was adequate (as agreed by the experts in the case) and weather conditions were dry and otherwise reasonable.[5]The speed limit had been 20mph since September 2016.[6]The Appellant decided as a “snap” decision to right turn into a one way road; Leyland Road, and as he did so he rode into an extended area of footway/kerb 75mm high; referred to throughout the trial as a “build-out”, controlling the entry into the road. The Respondent (as the relevant Highway Authority) had put the build out in place in or about 2000. It effectively reduced the access to Leyland Road to half its width at its junction with the busier Dorville Road.[7]At the time of the accident there were two illuminated one-way signs (blue and white) at the junction/entry to this part of Leyland Road. They were positioned at either side of the actual width of Leyland Road (absent the build-out). The kerb at the perimeter was about 6 meters from the western one sign (the right hand sign on approach to the junction).[8]The broken lines across the mouth of the junction were faded.[9]The Judge found that when the build-out was constructed in 2000 it had incorporated four wooden bollards (without reflective strips) in place to help identify “however ineffectively in the dark” the presence of the build-out and to reinforce that Leyland Road was one-way. It was the Appellant’s case (as noted by the Judge) that the wooden bollards had gradually rotted and the stumps removed by the Respondent.[10]The Appellant did not see the build out until he was about to collide with it. It was his case that the build out constituted a dangerous hazard/a trap and the Respondent was liable for the accident.[11]The Respondent denied liability on the basis that the build-out was not a hazard of sufficient seriousness and/or there was sufficient mitigation in place to prevent it from being a hazard and the cause of the accident was entirely the fault of Appellant who was riding too fast and not paying adequate attention to his surroundings.[12]Post-accident, the Respondent changed the layout of the accident-locus and re-positioned the post with the blue and white one-way arrow sign to the edge of the build-out.[13]The Respondent further and radically changed the layout in late 2024 to create a cycle lane. I refused an application made by the Appellant to rely on fresh evidence in respect of the changes made as the evidence was not relevant to the issues which arose on the appeal and would also cut across the principle of finality. Evidence at trial Lay witnesses

Evidence at trial

[14]The Appellant gave oral evidence at trial. No transcript of his evidence was available. However save for the issue of the Appellant’s speed there was little by way of factual dispute at trial.[15]In her grounds of appeal Ms Holt argued that the Appellant had been led into colliding the build out by an “optical illusion” caused by the western/right hand sign (which was positioned on the original kerb and not on the build out). In his skeleton argument Mr Jacob stated that; “Further, (the Appellant) made a last minute decision to turn right into Leyland Road and did not stop before turning right or apply his brakes. (He) gave no evidence that he was tricked by an ‘optical illusion’ or was especially conscious of the One Way signs before making the turn in either his witness evidence or his live evidence at Trial. This is consistent with the last-minute nature of his turn.”[16]In oral submissions he modified this unequivocal assertion given that he did not have access to the transcript; but maintained his submission that there was no evidence that the Appellant was tricked by any optical illusion.[17]At paragraphs 8 and 12 of the Appellant's witness statement he stated; “8. There is now produced and marked “Exhibit SB1” a true copy of a map I have prepared showing my intended route from SE3 0UY to SE9 4TZ marked in blue and the diversion I decided to take into Dorville Road and on into Leyland Road, marked in red.” 9. I remember that there were cars parked along the left side of Leyland Road from near to the start of the junction meaning that I had to enter the road in the centre of the junction. 10. I had never driven down Leyland Road before, to the best of my knowledge, and I was expecting the entrance to this road to be like any other one-way road. 11. In fact, what I did not realise was that there was a kerb and raised area of footway extending half way across the mouth of the junction from my right making the entrance actually very narrow. There are now produced and marked “Exhibit SB2” true copies of photographs taken shortly after the accidence and Googlemap images showing he entrance to Leyland Road. 12. As a result, I only saw the kerb and raised area at the very last instant and could do nothing to avoid it.”[18]Given the Trial Judge made no reference to seeing the western/right hand sign, perhaps not surprisingly, the Judge made no factual finding that the Appellant was misled by the sign. I will return to this issue.[19]Mr Fraser, a senior highways inspector/claims handler gave oral evidence on behalf of the Respondent. Little if anything he described is of importance for this appeal.

Experts

[20]Mr Hill (instructed on behalf of the Appellant) and Mr Hopwood (instructed on behalf of the Respondent), provided reports, compiled a joint statement and gave oral evidence. There were limited areas of disagreement such as whether the build out amounted to a traffic calming measure and/or a road narrowing under section 75 of the Highways Act. As the Judge stated that he “did not consider that there was much between them”. The experts agreed that;(a) Traffic calming measures should be conspicuous.(b) The safety of all types of road users was of central importance in the design and maintenance of measures – in daylight and the dark,(c) (subject to “nuanced differences”) that the safety and conspicuousness of a measure such as a build out was a separate matter of importance from “mere” technical compliance with the applicable regulations or;(d) The standard of lighting was adequate and compliant with applicable standards.(e) The build out was not defective in any way (and not of itself dangerous).(f) The kerb height was not in (any) way contrary to an applicable standard.(g) The granite kerb edging was distinct from the asphalt pathway.(h) The signage and road markings were not open to regulatory criticism.(i) There was no reason in principle why the build out should not have been built.[21]Both experts expressed opinions as to how conspicuous the build out was in the hours of darkness. As the Judge correctly observed the evaluation of this issue was ultimately a matter for the Court.

Judgment

[22]I turn first to the findings of fact made by the trial Judge.[23]The Appellant’s grounds of appeal, which I shall consider in detail in due course, were said to be “based squarely” on the Judge’s findings of fact.[24]As I have already stated the Judge made no factual finding that the Appellant was in any “deceived by an optical illusion” caused by the position of the western/right hand one way sign (as he approached the junction). Indeed the Judge made no finding that the Appellant saw the sign all.[25]I reject with little hesitation Ms Holt’s submission that “elementary psychology” meant that “subconsciously we all assess junctions” and that as a result the Appellant must have seen the sign. As he approached the Appellant may well have(a) Already known that Leyland Road was a one way street (although he had not ridden down it before) and/or(b) Only seen the eastern/left hand sign.[26]As Mr Jacob correctly submitted, if a feature has not actually caused or materially contributed to the accident then any potential breach of duty by the Highway Authority is irrelevant.[27]I should add that, as the experts agreed, there is no obligation to have two one way signs at the entry to a one way road; but two are permitted, so there was no regulatory requirement to have the sign on the west/right of the junction.[28]The Judge made factual findings as to the Appellant’s speed as follows; “12. I do not accept C’s evidence about the speed he was doing. His witness statement says he was riding at 20mph. He told the police he was riding at 30mph (the police too seem to have thought this was a 30mph road). His letter of claim states 20-25mph. In his oral evidence he said his speed was between 18 and 23mph but later suggested it was as low as 15mph. The fact is, I find, that he cannot remember and is not clear in his own mind to which points of his ride the speeds he talks about relate. On the balance of probabilities, despite his injuries, what he told the police at the time – his immediate reaction at the scene – is likely to be the most accurate assessment. I do not accept the criticisms of the police report advanced by Ms Holt. It is likely that a police officer completed the street names which C did not know, but that does not undermine the accuracy and reliability of the substance of what was recorded. 13. This speed (30mph) was the speed C was doing as he approached the turning into Leyland Road over the road humps and past the pedestrian island. He did not slow at the “Slow” sign or for the humps, but only when after the second road hump he noticed the possible right turn into Leyland Road. It is most unlikely, however, that he actually turned at that speed. When he made his late decision to turn into Leyland Road, I conclude he is likely to have taken his hand off the throttle, slowed down as a result, and assessing there was no on-coming traffic, turned into the street without stopping at the centre line of Dorville Road. He does not say himself that he applied the brakes. It is inherently likely in my judgment that in making the turn C would have started to accelerate into the mouth of the junction in order to ride up Leyland Road as if aiming to take a position in that road somewhere towards the centre of the carriageway. It is not possible to be precise about C’s speed as he took the right hand turn but it cannot have been less than 15mph. With acceleration from the centre of Dorville Road into the entry of Leyland Road the speed at the time his front wheel encountered the build-out kerb was more probably between 20 and 25mph.”[29]Having reviewed the Claimant’s case “in more detail” the Judge reached the following conclusions;[35]I reach the following conclusions. 35.1. The build-out was a hazard, and more so in hours of darkness. 35.2 It was a measure that was the result of D’s positive intervention on the carriageway that changed the configuration and layout of the highway. 35.3 However, the build-out was not a trap and the street geography and furniture did not entice carriageway users into a trap or draw them onto the hazard. 35.4. The build-out was reasonably maintained and complied with such regulatory requirements and guidance as were applicable. 35.5. The nature and potential impact of this hazard was no greater or different in character than that presented by hundreds of other traffic calming measures throughout the suburban streets of south-east London, whether they are build-outs, pinch points, chicanes, kerb-controlled cycle paths; bollard-controlled cycle ways; environmental “no-go” areas; reverse angle turnings; “floating” bus stops or carriageway narrowings. 35.6 C, like all road users, must be taken to have appreciated, and I find he probably did appreciate, that he was likely to encounter such measures on the streets where he was riding, particularly in residential streets like Leyland Road which are turnings off busier roads like Dorville Road. 35.7 Any rider approaching the junction intending to turn right needed to take particular care not only with regard to on-coming traffic but to what was likely to be encountered on the carriageway into which they were turning. 35.8 A reasonable rider would expect a residential street like Leyland Road to be less boldly lit than a main road. 35.9. Any reasonably careful rider approaching the turn within the speed limit and slowing down to heed the “Slow” sign, pedestrian island, road humps and hatchings in Dorville Road and reasonably assessing what was in front as they looked into Leyland Road, had a reasonable opportunity to identify the 75cm kerb of the build-out. To that extent it was there to be seen. 35.10. I am satisfied that the careful rider, even on the basis of the darker Hopwood photographs, had such an opportunity and should have been taking special care for the right turn from at least the point in Dorville Road where the pedestrian island is positioned. C was aware of the up-coming turn from just after that point because he cut the corner. He should not have done so. He should have applied his brakes, eased into a position where he could make a proper assessment of the road layout, looked with special care and at least slowed down to well below the permitted speed limit, or stopped. 35.11. I am not satisfied that this build-out constituted a real source of danger for reasonably careful motorcyclists. 35.12. As with most hazards, injury of some sort is reasonably foreseeable. Any kerb presents some risk of tripping, slipping or in the case of wheeled vehicles bumping or scraping over or against them, This, however, does not impose on D a duty to take further positive steps where a real source of danger or a trap has not been created for careful road users. The position may be different where section 41 of the Highways Act 1980 is engaged. 35.13. The fact that I find that there probably had been some relatively minor, unreported incidents over a 20 year period at this junction as mentioned in the hearsay evidence does not turn something that is not a trap into a trap. It is evidence only that not all road users are as careful as they are required to be. 35.14. Similarly, the fact that some changes have been made since C’s accident, such as moving the one-way sign to the centre of the road or the east edge of the build-out, does not mean that the measure was a trap before the improvements. Highway authorities should be encouraged to make changes even for the benefit of less than prudent road users.[36]The accident was caused by C’s own inattention. 37. In my judgment, neither breach of duty nor causation are made out and this claim must be dismissed.’

Issues

[30]Ms Holt submitted that the main question at the heart of the appeal is whether the build out was a dangerous hazard or a trap for a motorcyclist and turning right into the mouth of Leyland Road in hours of darkness. As I have already set out (for the large part) she did not criticize either the Judge’s finding of fact or his analysis of the relevant law; rather given the facts as found and the relevant legal principles she argued that the Judge arrived at a conclusion which was not properly open to him. The Judge should have found that the Respondent had created a trap and a danger for motorcyclists approaching the offending junction at night who were not already familiar with the junction and that all the Appellant’s injuries and losses flowed from the Respondent’s negligence and failure to maintain the said junction pursuant to s41 of the Highways Act 1980. The relevant law[31]As the Judge correctly stated that Claimant’s case is effectively “based on” Yetkin v Mahmood [2010] EWCA Civ 776. He stated;[32]“Ms Holt on behalf of C recognised that D would be liable only if it was proved that D had created a night-time danger or a dangerous trap to motorcyclists by erecting this build-out in the context of the highway geography without adequate warnings or mitigating features. She submitted that such a claim involves a close scrutiny of the facts. So it does.”[33]In Yetkin Lady Justice Smith stated at paragraph 17 of a passage of the speech of Lord Hoffman in Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, [2004] UKHL 15. “…. 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.[34]At paragraph 31 and 32 Smith LJ also considered paragraphs 101 and 102 of Lord Brown's speech in Gorringe. After discussing the right of a road user to sue the highway authority in respect of the condition of the road surface, Lord Brown stated:
“Road users are not, however, entitled to rely upon the highway authority with regard to the various other hazards of road use. They are not entitled to suppose that their journeys will be free from these or that the need for care will generally be highlighted so as to protect them from their own negligence. What I have said thus far is in the context of road accidents involving negligence on the part of at least one of the road users involved. But that is because I find it difficult to contemplate a case in which a road accident could occur without such negligence unless either (a) it results from the physical state of the road (in which case, as already explained, liability will in any event rest upon the highway authority), or (b) the highway authority will, irrespective of any particular statutory power or duty, be liable in a conventional common law negligence action for having enticed the motorist to his fate by some positive act. Assuming that the road user is not to be regarded as negligent, he must inevitably have been misled into ignoring whatever danger precipitated his accident. Although motorists are not entitled to be forewarned of the ordinary hazards of highway use, plainly they must not be trapped into danger.”

Lady Justice Smith stated:

“32. Pausing there, it appears to me that, in that passage, Lord Brown was clearly discussing the position of a road user who seeks to blame the highway authority for causing or contributing to an accident by reason of a failure to exercise a statutory power. He recognised that there would be statutory liability for the condition of the road surface and also ‘conventional common law liability’ for creating a danger by a positive act, (which may well arise as the result of the negligent exercise of a statutory power such as that provided by section 39 of the Road Traffic Act 1988). It is true (and perhaps unfortunate) that when mentioning this latter ‘conventional liability’ Lord Brown used the expression ‘enticed the motorist to his fate’. It seems to me that that was merely colourful language and not in any way intended to suggest that, in an action where it is alleged that the highway authority created the danger, the danger had to amount to an enticement. Nor does the last sentence of that passage suggest that, in order for a ‘conventional’ action to succeed, the claimant needs to show that he has been ‘trapped’ into danger. After this passage, Lord Brown goes on to give several examples of circumstances in which a duty may arise because a power has been exercised in a negligent way. So, the thrust of this passage is that there will be statutory liability for the state of the road surface and common law liability for hazards created by the highway authority but no liability for a failure to exercise the statutory power under section 39 . That that was all Lord Brown intended to say is clear from the opening words of the following paragraph, where he says:”
And “33. For my part, I entirely accept Mr Willems' submission that the judge took these passages from Gorringe out of context and consequently misunderstood them. He thought that they imposed additional requirements on a claimant bringing a conventional common law claim against a highway authority for creating a hazard on the highway. There are no such additional requirements. 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. As the judge found, this highway authority exercised its statutory powers to create a scheme for taking pedestrians safely across this road. That entailed the erection of barriers and the 'sheep pen' which would effectively prevent pedestrians from crossing at any other point than the designated place. It was the authority's intention that pedestrians would rely on the traffic light system but it was entirely foreseeable that some would not do so and would cross without waiting for the lights. It was therefore obviously necessary to give pedestrians 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 which 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. The judge held that that failure was a cause of this accident. It is not suggested that he was not right so to hold. I have no doubt that, in the circumstances of this case, the local authority had a common law duty of care towards the appellant, notwithstanding her own negligence, that that duty was breached and that the breach was a cause of the accident. There was no need for the judge to consider whether the danger created by the bushes amounted to a trap or enticement. It follows in my judgment that the judge erred in dismissing the claim. He should have held that primary liability was established.”[36]Ms Holt, rightly in my view, does not criticise the trial Judges analysis that:
“The duty would be to take such care as is reasonable in all the circumstances to avoid creating by positive intervention constituting a trap or a real source of danger and in that context to minimise the risk of reasonably foreseeable injury to highway users by the taking of reasonable steps to avoid creating the trap or identified real source of danger”; And “A real source of danger is something more than an incidental, minor, routine hazard of the type road users would be expected to encounter and guard against in going about their daily lives. A “real” source of danger is a significant source of danger (as opposed to a fanciful, minimal or theoretical one). A “danger” is the significant risk of an outcome more serious than any road user might normally expect in going about their day-to-day business…The type of intervention required to give rise to a duty is active intervention that creates a real source of danger and reasonably foreseeable injury to an identifiable cohort of highway.”
And

Grounds of appeal

[37]After distillation and clarification the grounds of appeal can be summarised as follows;[38]Ground 1 – the Trial Judge fell into error when applying his factual findings to the legal matrix.[39]Ground 1A- the Trial Judge fell into error in failing to consider whether the build out was a real source of danger to less than reasonably careful motorcyclists and other road users.[40]Ground 2 – the Trial Judge was wrong not to have found that there had been a breach of the duty under section 41 of the Highways Act 1980 to maintain the Highway.[41]Ground 3 – the Judge’s finding that the build-out was “there to be seen” was wrong.[42]Ground 4 – the Trial Judge was wrong to find that exceeding the speed limit by up to 5mph at the time of the collision extinguished all liability given that any duty of care is owed to the less careful driver as well as careful highway users.[43]Ground 5 – the Trial Judge was wrong not to find that the changed layout post-accident equated to a decision/tacit acknowledgement that the layout which pertained at the time of the Appellant’s accident was in fact a hazardous danger and a trap.[44]Ground 6 –the Trial Judge’s contributory negligence findings (in the event that he was wrong as to primary liability) were unbalanced and unfair in determining that the preponderance of the negligence was on the part of the Appellant.

Analysis

[45]I shall deal with each ground in turn and in so doing will make reference where necessary to the Respondent’s submissions. Ground 1 – the Trial Judge fell into error when applying his factual findings to the legal matrix;[46]Ms Holt submitted referred to the Judge’s statement at paragraph 30.5; “A positive intervention that in itself might otherwise be considered as having created a real source of danger may be found not to be a breach of duty if reasonable mitigating steps are introduced that reduce the impact of the intervention (this would include reasonable lighting or clear signage)” (a). In his conclusions the Judge did not deal with the siting of the one-way sign. (b). In allowing the disappearance of bollards and the fading of the white lines, the Respondent was in breach of the duty owed to the Appellant. The Respondent allowed what little positive indication of the presence and position of the junction and build-out as existed at the time of construction of the build-out to deteriorate (the faded road markings) and to disappear (the wooden bollards). (c). The Respondent should have considered applying relatively cheap mitigating factor(s) as they did after the accident. For example, the Respondent could/should have: repositioned the blue/white arrow sign (as they did after the accident – see second photograph above); provided a lit or a reflective bollard; installed a planter incorporating a warning notice; replaced the long-disappeared bollards and added reflective strips. The unchallenged evidence was that such remedial steps would have not cost more than around £500. (d). The Trial Judge criticised the Appellant for “cutting the corner” of the junction in the sense that he drove towards the right side of where he thought the mouth of Leyland Road was. However the Appellant was entitled to plan to ride up the middle of the carriageway of Leyland Road or to one side or the other, in circumstances also where there were parked cars on both sides of the road.

Analysis

[47]The argument that the Judge fell into error because the position of the lit one-way sign to the west/right “was always likely to confuse a motor cyclist” has the clear and obvious difficulty, which I have already set out, that there was no finding that the Appellant was in any way misled by its existence.[48]The Appellant made no mention of this factor in his witness statement, the Judge made no factual finding in relation to the issue and Ms Holt could point to no oral evidence to support such a finding (and there was no attack in the grounds upon the adequacy of the Judge’s factual findings).[49]It was the Judge’s finding as a fact that the street geography and furniture did not entice carriageway users into a trap or draw them onto the hazard. This can only sensibly have followed on from the Appellant not having raised, a fortiori proved on balance of probabilities, that he was in any way enticed/confused by the position of the western/right hand sign. So the argument based on the creation of an optical illusion has no merit.[50]It emerged during oral submissions that the main thrust of ground one was that, given the factual findings, no reasonable Judge could have arrived at the conclusion that the build out was not a real course of danger; specifically given the failure to move the western/right hand sign onto the build out itself or install reflective bollards.[51]After assessment of all the available photographic, witness and expert evidence, the Judge very carefully considered all aspects of the design, condition and environment of the build out before arriving at a highly fact specific evaluative judgment.[52]The relevant factors considered by the Judge were as follows;[53]The build-out was “there to be seen” i.e. not concealed and edged in granite kerb edging, 75 mm high, which was a different colour to the asphalt of the road surface.[54]It was within a 20mph zone and, as the Judge explained, was one species of traffic management measures, amongst many, that populate the suburban streets of south east London (and no greater in significance and character than other common measures). As the Judge observed it can taken to be the case that the presence or potential presence of such measures is well known to all riders/vehicular road users and the Judge found as a fact that the Appellant appreciated that he was likely to encounter such measures particularly in residential streets like Leyland Road which are turnings off busier roads.[55]The Judge was only concerned with a turn right into Leyland Road. Any road user making the necessary approach would have passed over/by the road markings and features which were in place before executing that turn, including road humps, the ‘SLOW’ sign on the carriageway, a pedestrian island and hatchings on either side of the pedestrian island. Any road user approaching the junction to turn within the speed limit, slowing down to heed these features and reasonably assessing what was in front as they looked into Leyland Road had a reasonable opportunity to identify the 75cm kerb of the build-out.[56]As set out above the experts agreed that the standard of lighting was adequate and compliant with applicable standards also the build-out was not defective and not of itself dangerous. Further the kerb height was not contrary to any applicable standard, and the signage and road markings were not open to regulatory criticism. The Judge found that the build out “complied with such regulatory requirements and guidance as were applicable”.[57]The junction was well used (Mr Hopwood said 30 vehicles turning into it during his period of inspection) and there was an absence of any records of vehicular incidents over the 19 years the build out had been in existence (although originally bollards were in place). It is difficult to see how a car catching its wheel on the edge of the build-out e.g. as a result of misjudging the width of the restricted entrance and/or taking the turning too fast (from either direction) could be of significant assistance, if relevant at all.[58]In my view the Judge clearly, and carefully, weighed up the relevant factors and the conclusion reached was plainly one that was open to him. The question to be addressed was not whether the junction could have been made safer e.g. by moving the western/right hand sign as was done some time after the accident; rather whether the build out was a real source of danger at the time. In my view the Judge was fully entitled to reach the view that it was not. He weighed up all the relevant material factors and there was nothing plainly wrong about his analysis. The reality is that Ms Holt cannot identify any fundamental error in the Judge’s approach and she simply disagrees with the conclusion. Ground one must fail.[59]Ground 1A is that the Judge fell into error in failing to consider whether the build out was a real source of danger to less than reasonably careful motorcyclists and other road users.[60]This ground emerged during oral submissions (although there was reference to the less than careful driver in the curiously worded ground 4).[61]As Smith LJ stated in Yetkin at paragraph 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...” Analysis[62]At paragraph 35.7 the Judge stated that any rider approaching the junction intending to turn right needed to take particular care and that (at paragraph 35.9) any reasonably careful rider approaching the turn within the speed limit and slowing down to heed the relevant features and reasonably assessing what was in front had a reasonable opportunity to see the build out. He was satisfied that “the careful rider” had such an opportunity (paragraph 35.10) and in conclusion that: “I am not satisfied that this build out constituted a real source of danger for reasonably careful motorcyclists”.[63]As for the changes made after the accident the Judge stated that “Highway Authorities should be encouraged to make changes even for the benefit of the less than prudent road user”.[64]No reference was by the Judge within his conclusions to the need to consider the less that prudent motorcyclist when assessing the safety of the build out.[65]Mr Jacob submitted that the Judge must have had the less than careful road user in mind when reaching his conclusion as earlier within his judgment he had specifically pointed out that “any (common law) duty (in respect of the introduction of a new danger) is owed to less careful as well as careful highway users” (paragraph 30.8).[66]I cannot agree with Mr Jacob’s submission. The wording within the conclusions is clear and in my Judgment the Judge fell into error by failing to consider the position of the less than carful rider.[67]Given this error it is necessary for me to consider the wider duty afresh whilst staying loyal to the Judge’s factual findings and his unimpeachable analysis in respect of the lack of a real source of danger to reasonably careful motorcyclists. It is not necessary to repeat the factors set out above in that regard.[68]It is necessary to consider what potential lack of care should have been considered. In my view the relevant features were excessive speed and/or inattention.[69]In this case the Judge concluded that the accident was caused by the Appellant’s speed and own inattention when making a late decision to turn right into Leyland Road and “cutting the corner”. He approached the turning at 30 mph and did not slow at the slow signs, but took his hand off the throttle as he turned and then accelerated meaning that at the time his front wheel encountered the build out his speed “was probably between 20-25 mph”. The Judge found that the Appellant was riding “too fast throughout this episode, both on his approach to the turn and as he executed (it) and that:
“At the time he decided to use this turning it is likely he had already made the judgment in his own mind that there were no obstructions in front of him. He paid no heed to the humps, the hatched markings and the pedestrian island and whilst he was not in a hurry, he made a snap decision to turn right as he did without applying brakes or slowing sufficiently to digest the implications of what was ahead of him”
. And “…he was not concentrating as he should have been”.[70]In my judgment if the question as to the existence of a real source of danger is asked with a wider scope of duty to encompass the less than careful rider the conclusion reached by the Judge is unaltered.[71]Realistically, what was required before a rider could miss the existence of the build out at night (as the Appellant did) was a combination of factors.[72]The first is significantly excessive speed on the approach to the junction. It is of some significance that under the Highways (Traffic Calming) Regulations of 1993 and 1999 there is no requirement to warn of the presence of traffic calming work (regulation 3 defines “traffic calming works” as including build outs) on a highway which is in a 20mph zone. The Judge pointed out the fact that the speed limit was 20 mph did not make it safe at all times, in all circumstances, to ride at that speed. As he set out the Judge found that the Appellant ignored the humps, the hatched markings and the pedestrian island. Given the limit it should have been anticipated that road users may approach the junction at or just over 20 mph, despite the presence/effect of the speed hump, island and markings. However, in my judgment what the facts established is that the Appellant approached at 30 mph i.e. very significantly in excess of the speed limit.[73]The second necessary factor was inattention here combined with a late (“snap”) decision to turn right. Alone inattention would be unlikely to be an issue as taken at/about a safe speed there would be time to appreciate during the turning manoeuvre what had been missed and avoid hitting the kerb. As Mr Jacob pointed out the lighting was adequate and any vehicle or motorcycle would have its headlight illuminating the road ahead.[74]In my judgment the Respondent was not obliged construct or maintain this measure on the road with this extent of synergistic elements of lack of care; significantly excessive speed ignoring the measures on the approach including a hump across the road and accompanying inattention, factored in. This combination was not “entirely foreseeable”; per Smith LJ in Yetkin; quite the reverse as the 19 years of its existence at a busy junction without a report of a similar accident underlines. Were a Highway Authority to have to take into account a lack of care to the extent of this combination of features as the potentially actions of a less than careful road user it would mean that it would be very difficult to construct very many traffic calming measures. I have no doubt that had the Judge specifically considered the issue he would have reached the same conclusion. Ground 1A therefore fails.

Ground 2 – section 41 Highways Act 1980

[75]Ms Holt submitted that the Judge was wrong not to have found that there had been a breach of the duty under section 41 to maintain the Highway. That section provides Section 41 – Duty to maintain highways at public expense The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway.[76]Ms Holt submitted that she had not abandoned arguments pertaining to the Respondent’s failure to fulfil their duties under section 41 of the 1980 Act and that the section “…was in play at the hearing, in the skeleton argument and submissions”.[77]In refusing permission to appeal the Judge acknowledged that liability by virtue of breach of section 41 had not been abandoned rather “was pursued but faintly” and stated “In any event, whether based on bollards or signage, I concluded that section 41 was not engaged because it could not be sensibly argued that either (or anything else) could be considered part of the fabric of the highway. To have concluded otherwise would have been a departure from established authority. In any event the accident was not caused by any such alleged breach of statutory but was due to the Claimant’s own fault”. Analysis[78]Starting with the last sentence of the ruling, it was stated in the grounds of appeal and skeleton that the simple argument is/was that the disappearance of the wooden bollards (with stumps subsequently removed and the bollards not replaced after the first record of them having been replaced), combined with the very faded white lines at the actual available mouth of the junction, caused or contributed to the Appellant’s accident. However, the fundamental problem with that argument is that it was not what the Judge found as a fact. Rather he found that more visible white lines or the wooden bollards would not have made a difference given that the cause of the accident was a combination of excessive speed and inattention when executing a late/snap right turn. The grounds do not contain an attack on the Judge’s finding of fact on this issue; so the ground is misconceived.[79]In any event the ground is flawed as a matter of well settled and unequivocal legal principle. During oral argument Ms Holt focussed on the white line and did not make submissions in relation to the bollards. However she could point to no authority to support the proposition that a failure to re-paint a white line at a junction mouth constituted a failure to maintain for the purposes of section 41. This was not surprising and the Judge was clearly correct when he stated that established authority was against Ms Holt’s submission. There is no duty on a highway authority to “maintain” such markings; see Gorringe v Calderdale [2004] UKHL 15 where the unsuccessful argument was that the Highway Authority should have painted the word “SLOW” on the road surface at some point before the crest. There had been such a marking in the past, but it disappeared, probably when the road was mended seven or eight years before the accident. Lord Hoffman stated; “15…The judge decided that, in the absence of a suitable warning painted on the road or carried on a sign, the highway was out of repair. The Court of Appeal unanimously disagreed and I have little to add to their reasons. The provision of information, whether by street furniture or painted signs, is quite different from keeping the highway in repair. In Lavis v Kent County Council (1992) 90 LGR 416 , 418 Steyn LJ said in response to a similar submission that section 41 required an authority to erect a warning sign:
“In my judgment it is perfectly clear that the duty imposed is not capable of covering the erection of traffic signs, and nothing more need be said about that particular provision”. 16.. This observation may be said to be short and to the point but I doubt whether, in the light of the judgment of Lord Denning MR in Haydon's case, there is a great deal more to say. At any rate, I agree with it. “In my judgment it is perfectly clear that the duty imposed is not capable of covering the erection of traffic signs, and nothing more need be said about that particular provision”. 16.. This observation may be said to be short and to the point but I doubt whether, in the light of the judgment of Lord Denning MR in Haydon's case, there is a great deal more to say. At any rate, I agree with it.

Ground 3 – the Judge’s finding that the build-out was “there to be seen”

[80]Ms Holt submitted that “intellectually, this is/was an unhelpful argument advanced by the Respondent and accepted by the Trial Judge”. Given the prevailing circumstances and it being dark, the build out was disguised and difficult to see and “there appears to have been a failure of judicial imagination in understanding how the layout of the junction was perceived by the Appellant as he approached it. Hindsight and studying of (mainly) daylight photographs to understand the junction is a different exercise than the Trial Judge “putting himself in the Claimant’s shoes” and considering what the Appellant would have perceived on the approach to an unfamiliar junction. In that regard, the Trial Judge apparently gave scant attention to the evidence in the video footage that the Appellant provided and considered at trial taken at night within days of the accident. Analysis[81]I struggled to understand this ground and specifically whether it was an attack on the Judge’s finding of fact, or not, or an extension or repeat of ground 1 (as Mr Jacob submitted). In any event it is plain that put in context the finding was that the build out was “there to be seen” (as there was a reasonable opportunity afforded to someone approaching the turn) as opposed to somehow being disguised/concealed/obscured (e.g. a road sign may not be there to be seen if a road users’ view is blocked by foliage). It was an wholly unobjectionable finding. In so far as the argument is that the Judge was wrong to not to have found that the build-out was “disguised” it is devoid of merit. There was no element of disguise at all. Ground 4 – speed[82]Ground 4 was as follows “Does the fact that the Appellant was exceeding the speed limit by up to 5mph (at most) at the time of the collision extinguish all liability on the part of the Respondent? The Trial Judge found that the prevailing speed limit at the junction was 20mph but that the Appellant had been proceeding along Dorville Road at around 30mph before he took his hand off the throttle and slowed to turn into Leyland Road. When he turned however, the Judge found that “it cannot have been less than 15mph” and that it was “more probably between 20mph and 25 mph” [§13, 28]. As the Trial Judge found [§30.8, 33], following the reasoning in Yetkin, any duty of care is owed to the less careful driver as well as careful highway users”.

Analysis

[83]There is and can be no realistic criticism of the Judge’s findings as to fact in relation to speed. It became clear during submissions that the thrust of the ground lay in the final sentence. Following an application to amend the grounds this became part of Ground 1A which I have already considered. This ground adds nothing. Ground 5 – changed layout post-accident[84]Whilst Ms Holt conceded that there was no formal evidence or finding that the Respondent changed the layout of the junction because of the Appellant’s accident, she submitted that the decision to change the layout equated “to a decision that the layout which pertained at the time of the Appellant’s accident was in fact a hazardous danger and a trap…the changes in layout made by the Respondent amount to a tacit acknowledgement that the state of the build-out at the time of the Claimant’s accident in March 2019 were dangerous.”

Analysis

The Judge stated that:

“10.20 Subsequent changes to the road layout and street furniture are not evidence of any breach of duty on D’s part. The lit (west) one-way sign was moved to the edge of the build-out and the junction white lines were repainted.”
And “Any road user in suburban London, be they pedestrian, cyclist, motorcyclist or driver must recognise that the streets are an obstacle course, and they must moderate their behaviour accordingly. Not all hazards are actionable hazards; far from it. The important questions in this case include whether the build-out was a hazard at all, whether the hazard was created by the positive intervention of D and whether it was the sort of hazard that created a real source of danger and foreseeable risk of injury such that the measure should not have been put in place at all or some or further relatively inexpensive mitigating steps should have been taken in respect of the identified danger or some measure adopted that avoided any real source of danger.” And “35.14 Similarly, the fact that some changes have been made since C’s accident, such as moving the one-way sign to the centre of the road or the east edge of the build-out, does not mean that the measure was a trap before the improvements. Highway authorities should be encouraged to make changes even for the benefit of less than prudent road users.”[86]The Judge was correct in his analysis. As Lord Justice Steyn stated in Mills v Barnsley Metropolitan Borough Council [1992] 2 WLUK 76) in respect of what appeared to be an attempt a post accident repair of a pavement “In any event, if there had been a subsequent attempt to repair, it would in the circumstances of this case have told us nothing about the issue of dangerousness”[87]Once an accident has occurred a local authority, or in other types of accident an employer or occupier of premises, may feel compelled to take action. However, beyond informing the issue of practicability (and cost) if, as was not the position in this case, these factors are in issue, any steps have limited relevance to the issue of whether the state of affairs at the material time was in breach of duty or not.[88]Ground 6 – contributory negligence[89]Given that the appeal fails in respect of liability this ground can be taken shortly. Ms Holt submitted that the Trial Judge’s contributory negligence finding of 75% contributory negligence on the part of the Appellant was “unbalanced”. She submitted that, if there was to be any finding of contributory negligence on the part of the Appellant, then the percentage split should be no more than 25%. In this case the danger was not “there to be seen” and the Appellant only became aware of the dangerous “build-out” at the last instant.[90]The first and obvious flaw in this argument is that the reason that the Appellant only became aware of the build out at the last instance is because of his own blameworthy conduct in proceeding at a significantly excessive (and illegal) speed and not paying sufficient attention to the road ahead/his environment.[91]The correct approach to the issue of contributory negligence is well settled. As Lord Denning stated in Davies v Swan Motor Co (Swansea) Limited [1949] 1 All ER 620 CA, there are two aspects of what is just and equitable in apportioning liability under section 1 of The Law Reform (Contributory Negligence) Act 1945 Act, as assessing a Claimant’s share in the responsibility for the damage, being(i) the causative potency of a particular factor and(ii) the respective blameworthiness. The Judge indicated that he had considered both factors and there can be no realistic challenge to his assessment when the Appellant rode into the build out which was, as the Judge stated, “there to be seen” by any reasonably careful road user.[92]For the reasons set out above the appeal fails.

Cited in 1 later judgment