Lovell (Nee Geraghty) v Leeds City Council [2009] EWHC 1145 (QB)

[2009] EWHC 1145 (QB)

Case No U20090962

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Leeds Combined Court

The Court House

1Oxford Row

Venue Leeds

LS1 3BG

Date 22/05/2009

Before

THE HONOURABLE MR JUSTICE TUGENDHAT

Between

Lara Lovell (nee Geraghty)Claimant

Leeds City CouncilDefendant

Mr Howard Elgot & Miss Leila Benyounes (instructed by DWF solicitors) for Claimant

Mr Mark Turner QC &Mr Simon McCann (instructed by Berrymans Lace Mawer LLP) for Defendant

Hearing Hearing dates: 22 April - 7 May and 18 May

Judgment

Mr Justice Tugendhat :

[1]The Claimant asks for an indemnity or contribution to be made by the Defendant Leeds City Council (“LCC”) in respect of damages and costs paid to Mr Mead in settlement of a claim for negligence brought by Mr Mead against the Claimant. Mr Mead’s claim was for damages for personal injuries suffered as a result of an accident (“the accident”) that occurred on 15 October 1997 when he was a passenger in a car being driven by the Claimant. The Claimant’s claim against LCC is brought pursuant to the Civil Liability (Contribution) Act 1978 (‘the 1978 Act’). In substance this claim is brought, not by the Claimant, but by the Claimant’s insurance company exercising its rights of subrogation. This is what I have been told by counsel for the Claimant. It would have been obvious from the papers in any event. The fact that the claim is brought by subrogation may not be relevant to any issue that I have to decide. But it helps to explain the long time period over which the matter has stretched.

TOPOGRAPHY

[2]In order to understand the facts it is necessary to have in mind the relevant topography. The A61 is a two lane road which runs south from Harrogate into Leeds. At Alwoodley Gates, on the northern outskirts of Leeds, there is a junction (“the junction”). The junction has four arms. At that point the A61 is called the Harrogate Road. The road to the west of the junction is called Alwoodley Lane. The same road to the east of the junction is called Wigton Lane. About 1.4kms, or a mile, to the north of the junction, near Wikefield Farm there is a bend in the A61 (the “blind bend”). This bend turns to the left, when viewed from the position of southbound traffic. In the state of the weather and the foliage at the relevant time, it was not possible for a southbound driver to see any traffic past the blind bend. About half way between the blind bend and the junction there is an S bend, turning first to the right past Millfield farm, and then to the left.

[3]On the A61 at a point about 188 metres to the north of the junction LCC built a roundabout (“the roundabout”) that opened for traffic in May 1997. It had three arms which were in use. The arms to the north and the south are the A61. The arm to the east gave access by a private road to the new greenfield site opened in September 1997 (“the new site”) for the Leeds Grammar School (“LGS” or “the school”). That was the only access to the school. All traffic entering the school came from the A61. It all returned to the A61 on leaving the school. While some vehicles entering the school in the morning would remain there for some hours (for example, vehicles used by staff), most of the vehicles would pause briefly to drop off boys at the school and proceed back to the roundabout. There was a fourth arm to the west of the roundabout, prepared for a Park and Ride development that was not in operation in 1997. The fourth arm can therefore be ignored.

[4]LGS is a well known fee paying school for boys. Before the move in 1997 it had been located at an urban site about five miles to the south, in the Woodhouse area of Leeds (“the existing site” or “the old site”), conveniently sited for the business centre of the city. The majority of the boys attending the school lived in areas in the northern part of Leeds. So they lived to the south of the new site, and to the north of the old site. The new site was more conveniently located for the boys’ homes.

[5]A key element of the re-location project was said to be the intention of Leeds University, who owned the new site, to acquire the existing site, and thus to provide the University with much needed expansion space.

THE ACCIDENT AND THE CLAIMS

[6]At about 0855 on the morning of 15 October 1997 the claimant was driving a Peugeot 106 car southbound on the A61 road towards Leeds. Immediately south of the blind bend there was the end of a queue of traffic. When she rounded the bend, the Claimant attempted to brake and steer to the offside of the queue. As she did so the wheels of her car locked and her car skidded onto the northbound carriageway. There it struck a Ford Sierra which was being driven in the direction opposite to her own. There is no suggestion that the driver of the Ford was in any way at fault.

[7]Mr Mead’s injuries included paraplegia. He commenced proceedings against the Claimant in 1998. On 5 September 2003 the Court made an order by agreement between Mr Mead and the Claimant in respect of Mr Mead’s claim. The relevant terms included that the Claimant would pay Mr Mead £1,672,500 in full and final settlement of his claims for damages and interest and that the Claimant would pay Mr Mead’s costs.

[8]The present proceedings were started nearly two years later, on 25 July 2005. The Claimant alleges that the Defendant was in breach of a duty of care owed to Mr Mead and liable in respect of the same damage suffered by him in respect of which the Claimant was liable. The basis of the claim is that the Defendant was the Highway Authority in respect of the road where the accident occurred and that it was the planning authority in respect of the development of the new site for the school.

[9]The allegation made by the claimant against the Defendant in these two capacities is that it was negligent, alternatively in breach of duty, alternatively that it had caused a public nuisance, because the queue of stationary traffic, which the claimant was seeking to avoid when she swerved to the right, was what the Claimant contends was an obvious safety hazard created by the defendant. At the time of the accident on 15th October 1997 the school had been open on the new site only for the few weeks of the term beginning 5 September.

[10]The claim is confined to an indemnity or contribution in respect of the sums paid in settlement of Mr Mead’s claim against the Claimant. The Claimant herself suffered significant injuries. Fortunately, she has largely recovered. She has made no claim against LCC in respect of her own injuries.

[11]This claim against LCC could be commenced as late as it was because of the special two year limitation period applying to claims under the 1978 Act (see Limitation Act 1980 s.10(1)). By 2005 a claim by the Claimant herself against LCC for damages would have been long since time barred. But in 1998, when Mr Mead brought his action against her, the Claimant could in principle have brought a claim against LCC, both for the indemnity or contribution she now seeks, and for damages in respect of her own injuries. And Mr Mead could have joined LCC as a defendant in the action he brought against the Claimant. I say this, not to suggest that any of these other claims should have been brought, but to explain the context in which this claim came to be brought, and now tried, some 12 to 15 years after the events to which it relates. Given that no claim was made against LCC before 2005, it is understandable that there is no evidence that there was any investigation in 1997 as to the cause of the queue of traffic at the blind bend at the time of the accident. In particular, since the hazard complained of is not just that there was a queue on the A61, but that the queue was just round a blind bend, there was no enquiry as to why the queue had reached that point at that time of the morning.

[12]However, from the time when the school opened in early September, queues had started to form in the mornings on the A61 north of the roundabout. There was much complaint from the public about these queues, and LCC did investigate why they were forming. These investigations started well before the accident and continued for months after it, but were not related to the accident. Also, there were investigations in later years about the functioning of the road network serving the school, in particular in about 2005 when there was a proposal that the Leeds Girls High School move to the same site as, and merge with, LGS, as it later did. Information derived from these investigations, unrelated to the accident, has formed much of the basis for the allegations made against LCC in these proceedings.

[13]The case against LCC relates to alleged acts and omissions which are not confined to the date of the accident in 1997. The enquiry goes back a further three years to 1994, covering the period during which the roundabout was designed and then built, and when the capacity of the junction was considered in the context of the proposed new development by LGS.

[14]LCC denies that it caused the accident or committed any wrong. It contends that the accident was caused entirely by the Claimant driving too fast and failing to keep a proper lookout.

THE LAW

[15]The relevant provisions of the 1978 Act are:

“1 Entitlement to contribution (1) Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise).... (4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage … shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided, however, that he would have been liable assuming that the factual basis of the claim against him could be established… 2 Assessment of contribution (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question....”

[16]The liability in respect of Mr Mead’s damage alleged in the present case is a liability in the tort of negligence. The requirements for liability in negligence are, as is well known, four: there must be a duty of care recognised by law, breach of that duty by the defendant, a causal connection between the defendant’s careless conduct and the injury and damage, and the particular kind of injury and damage to the particular claimant must be not so unforeseeable as to be too remote.

[17]In the present case there is no dispute that a highway and planning authority may owe a duty of care to a road user, including a passenger such as Mr Mead. There is some difference between the parties on the formulation of that duty, but in the light of the findings I make in this judgment it is not necessary for me to resolve the differences between the parties on the law.

[18]The main dispute between the parties is as to whether LCC were in breach of that duty and, if they were, whether that breach caused or contributed to the accident, and if so, whether the injury damage to Mr Mead was foreseeable.

[19]There are a number of duties imposed by statute upon highway authorities, including duties to maintain the highways (Highways Act 1980 s.41(1)). And there are public law duties to carry out measures to prevent accidents (Road Traffic Act 1988 s.39(2) and (3)). But it is not under any of these that the present claims is, or could be, brought. This claim is brought at common law.

[20]There is no dispute between the parties that at common law highway and other public authorities may do acts, or enter into relationships, or undertake responsibilities, which give rise to a common law duty of care. In Gorringe v Calderdale MBC

[2004] UKHL 15

;

[2004] 1 WLR 1957

;

[2004] 2 All ER 326

at [38], [43] Lord Hoffmann put it this way:

“…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.”

[21]An example relied upon by the Claimant is Kane v New Forest DC

[2001] EWCA Civ 878

. The Court of Appeal held that the claimant had a powerful case that the defendant had assumed a responsibility to those who might use the footpath to see that it was not open until a danger was removed: see paras [23], [28]-[29]. In that case the defendant planning authority applied for summary judgment against the claimant. It had given permission for a footpath that ended on the inside bend of a main road where vegetation reduced to 10 metres a driver’s ability to see anyone emerging from the path. The claimant’s case was that the defendant was aware of the danger created by the path, but failed, when granting planning permission, to impose a condition forbidding the opening of the footpath until the sightlines had been improved.

[22]In the present case there is no dispute that LCC undertook to design and build the roundabout under an agreement with LGS made pursuant to the Highways Act 1980 s.278.

[23]For LCC it is submitted, first, that dangers for which a highway authority may be liable do not include ordinary hazards of highway use. Second it is submitted that the existence of significant blame on the part of the motorist will preclude a finding of liability against the highway authority. Mr Turner relies in particular upon the follow passage from para [102] in the speech of Lord Brown in Gorringe where he states that “… motorists are not entitled to be forewarned of the ordinary hazards of highway use”. Mr Turner also refers Lord Brown’s comment in para [102] on Bird v Pearce where he says “the suggestion there that the highway authority itself created the danger appears to me irreconcilable with the conclusion that one of the drivers was himself two-thirds to blame for the accident”. In para [101] Lord Brown had already said:

“Road users, …, are entitled to rely upon the state of the road's surface and accordingly the primary liability for any loss resulting from a breach of the section 41 [of the Highway Act 1980] duty rests on the authority. 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.”

[24]There are other passages in the speeches in Gorringe which are of assistance. At para [36] Lord Hoffmann said:

“Nor does it follow that the council should be liable to compensate third parties whom careless drivers have injured. The drivers must take responsibility for the damage they cause and compulsory third party insurance is intended to ensure that they will be able to do so: compare Stovin v Wise at p 958.”

[25]As to the standard to be applied, again there is no issue of law before me that it is the Bolam test applicable in claims for professional negligence. It is set out in Bolitho v City and Hackney HA

[1998] AC 232

, 240G: were the acts or omissions complained of within the range open to reasonably competent traffic engineers in the period 1994 to 1997?

EVENTS BEFORE 15TH OCTOBER 1997

[26]On 22 November 1993 LGS made their outline planning application for the development at the proposed new site. They submitted, amongst other material, a Traffic Impact Study prepared by Frank Graham Consulting Engineers Ltd (“Frank Graham”). LCC requested further consideration of the traffic impact.

[27]On 4 May 1994 solicitors for the golf club adjacent to the proposed new site for the school wrote to LCC. The golf club were opposed to the proposed development. The letter enclosed a report from consultants instructed on behalf of the golf club. It was prepared by Mr Townsley of Halcrow Fox. Mr Townsley gave evidence of fact in support of the Claimant’s case. By May 1994 LCC had indicated that traffic flows passing the site were higher than those quoted by Frank Graham. Mr Townsley concluded that the proposed development would cause demonstrable harm in traffic and road safety terms.

[28]On 7 June 1994 Frank Graham submitted to LCC a Supplementary Traffic Impact Study dated May 1994. This document contains some 26 pages of detailed discussion of statistics which are set out in about 60 pages of Appendices. There are analyses of the travel arrangements at the existing site, in the morning and the afternoon, and of the corresponding arrangements to be expected at the new site. Consideration is given to the impact of the new travel arrangements upon the junction and upon the means of access to the new site from the A61. Statistics showed that about 27% of the pupils lived in the same postal district as the new site (LS17), and that 58% lived in the three postal districts nearest to the new site (LS8, LS16 and LS17).

[29]It is noted that the school was proposing to extend a bus service which it organised for boys to arrive at and leave the school. Car and bus were the two modes of transport expected to be used by almost all the boys, and the split between the modes (“the modal split”) was one of the main points of discussion. The impact upon the existing traffic flows at the junction was tested with the use of software known as OSCADY2 (Optimised Signal Capacity And DelaY Version 2). At that time it was also proposed that access to the school from the A61 be by signal controlled junction and that too was tested with OSCADY. There was also discussion of the access drive into the school, and the parking facilities to be incorporated into the proposed development.

[30]The conclusion of the Supplementary report was that improvements to the junction would be required for it to have the capacity to cope with the morning peak traffic, and that there was no significant detrimental impact on existing traffic.

[31]Mr Hacker was at that time the Chief Engineer for LCC in Highway Management in the Department of Highways and Transportation. He recorded criticisms of the Supplementary Report at the time. Frank Graham had suggested that the model split in the morning at the existing site, namely 68% car borne, would reduce to 20% for the new site. Mr Hacker noted that he did not consider such a reduction was realistic. He also noted that if the assumption as to the modal split was incorrect, that raised questions as to how sensitive the OSCADY calculations were to “say 70/30, 60/40, 50/50 splits”. The Claimant alleges that those tests were not carried out when they ought to have been. He also noted his view that the suggested alteration to the junction was unrealistic, namely, banning right turns from the A61 southbound into Alwoodley Lane from A61 north.

[32]On 7 July 1994 the school prepared a summary of the results of a survey conducted to discover the means of transport likely to be chosen for travel to and from the new site. The writer concluded that the likely use for the morning was 66% by car and 33% by car. The figures for walking and “not clear” made up the balance of 1%. The Claimant contends that the survey was seriously flawed.

[33]At about this time, as Mr Hacker stated in evidence, agreement was reached with LGS representatives that future assessment of the highway implications of the scheme would be based on the assumption that 46% of pupils would travel to and from school by car. He could not remember when or how that agreement was reached, and no documents have been shown to me relating to it. He explained in evidence that the modal split of 46% by car reflected the surveyed conditions as the existing site for the afternoon. Those who collected children from school in the afternoon were not likely to be doing so in the course of commuting to or from work, whereas those taking children to school in the morning at the existing site were likely to be on their way to work nearby. He did not expect so many parents to be going to the new site on their way to work, because it was so much further from the business district of the city. The Claimant contends that that decision was outside the range of decisions open to a professional in Mr Hacker’s position.

[34]A number of documents dated 8 July 1994 record reservations about the school’s calculations. A meeting was held with representatives of the school at which LCC stated that a roundabout was required for access to the school from the A61 instead of a signalised junction. Frank Graham prepared drawings which they sent to LCC on 13 July.

[35]On 14 July 1994, in a memorandum to the Department of Planning, Mr Hacker gave the comments of his department upon the school’s application. These included that “the proposed roundabout … will only just accommodate the school traffic without causing undue delay or queues for other traffic on the Harrogate Road in the peak hours”. He identifies the morning peak hour at 0730 to 0830, with 40% of the pupils arriving between 800 and 0815. He notes matters to be addressed at the detailed Application Stage, including the need for adequate provision for parents to park and to drop off pupils within the school grounds. The internal arrangements within the school grounds are an issue in the present action: LCC contends that the defects in those arrangements are what caused, or may have caused, the queue which gave rise to the accident.

[36]On 20 July, at the meeting of the Planning Committee, questions were raised as to the traffic that would be generated, and as to what guarantees could be given on the modal split. It was resolved that the determination of the application be deferred pending further consideration of the highways and road traffic implications of the proposed development.

[37]In August the golf club submitted a document headed Further Critique of Traffic Implications dated July 1994. Mr Townsley concluded that there would be significant overloading at the proposed access to the school and at the junction. He considered there was no basis for assuming a modal split for the new site different from that at the existing site for the morning. He considered that parents would still drop their children off as part of their commuter trip. He also observed that the increased bus service was supposition.

[38]On 2 September 1994 the Planning Committee considered a report of the Director of Planning on the application and resolved that the application be approved in principle and deferred and delegated to the Director of Planning for approval subject to conditions, and that the application be referred to the Secretary of State for the Environment. The decision of the Secretary of State not to intervene was notified on 21 December 1994.

[39]On 18 January 1995 Bryan G Hall, Consulting Civil and Transportation Planning Engineers (“BGH”), notified LCC that they had been appointed to act on behalf of the school in respect of highway matters relating to the proposed development. The letter enclosed computer analyses of the junction and the roundabout. They had used OSCADY for the junction and software known as ARCADY3 (“Assessment of Roundabout Capacity and Delay”) for the roundabout. Both these items of software are Crown copyright, being produced by the Transport Research Laboratory, which was then an agency of the Department of Transport. They are used to model capacities, queue lengths and delays at junctions and roundabouts. The letter records that it had been agreed by Mr Lloyd for LCC that the information which BGH would submit would be based on assumptions which included that the traffic likely to be generated by the school on the new site would be at its greatest between 0730 and 0830, and that the morning modal split would be 46% by car. Mr Lloyd worked in Mr Hacker’s department, and reported to him. He provided a statement, but in the event was not called to give evidence.

[40]On 27 January 1995 Mr Lloyd sent a memo to Mr Falconer in the department of Urban Traffic Control Signals at LCC. Mr Lloyd enclosed plans from both Frank Graham and BGH, and the analysis of BGH, inviting Mr Falconer’s comments. Mr Falconer was not called to give evidence.

[41]On 6 March 1995 Mr Falconer replied to Mr Lloyd’s memo of 27 January. One comment that he made was: “[BGH]’s Oscady is flawed, in that the saturation flow they have chosen for the two lane inbound approach is approximately 1200 pcus/hr high i.e. should be 2400 not 3600”. “The two lane inbound approach” is a reference to the part of the A61 southbound immediately to the north of the junction, at which point the single southbound lane divides into two lanes. “Pcus” are passenger car units. A passenger car is one unit on this scale, and a larger vehicle may be two units. Mr Hacker stated in evidence that he could not now say when that memo was received, or whether BGH’s model was re-run. If it was re-run, there is no documentary reference to that fact. At this time LCC and representatives of the school were preparing for the contract under which work to the junction and the construction of the roundabout was to be carried out.

[42]On 2 May 1995 LCC granted outline planning permission. An agreement was entered into between the school and LCC under s.106 of the Town and Country Planning Act 1990.

[43]On 22 December 1995 the two parties entered into an agreement under s.278 of the Highways Act 1980 under which the school agreed to pay LCC for the design and construction of the roundabout and for improvements to the junction.

[44]On 17 September 1996 LCC’s Department of Highways and Transportation carried out a Stage 1/2 Safety Audit for the proposed new roundabout and junction improvements. A report recorded that a problem anticipated in relation to the roundabout was that queuing could be anticipated, particularly at the morning peak hours. The report added:

“shunts with waiting vehicles are likely if inadequate precautions are not taken”

. It is alleged for the Claimant that a stage 3 Safety Audit ought to have been, but was not, carried out.

[45]On 11 May 1997 the works to make the roundabout were substantially completed.

[46]The school opened at the new site on 5 September 1997. There were a number of complaints from members of the public about congestion near the school during the period immediately after the opening.

[47]On 10 September 1997 LCC issued the following:

“Media Statement regarding traffic congestion on the A61 near to the new Leeds Grammar School site A council spokesman said: ‘Our highways officers are aware of the problem. They will be monitoring the situation closely over the next fortnight with the aim of introducing whatever improvements in signalling prove necessary. We will immediately be modifying the timing of the current traffic lights to make some small short-term improvements. The problem seems to be caused by school buses and rat-runners turning right onto the A61 from Wigton Lane and blocking Leeds bound traffic”

. A council spokesman said:

[48]On 11 September 1997 a lady complained that the exit from the school on to the A61 was difficult and she claimed that it had taken her half an hour. There was a story in the press under the title “Traffic rumpus hits new school”. A driver was quoted as complaining that there had been queues “back towards Harewood lights”, but the date and time of the alleged queue is not now ascertainable.

[49]On 16 September 1997 Mr Hacker wrote to Councillor J M Brown referring to “considerable delays and queues both at the new roundabout and also at the improved … junction”. He added:

“The number of school trips being made by car, as opposed to school bus, is very much greater than those forecast by the School at the planning application stage …”

[50]It is not now clear what was the basis for that statement. No record is to be found amongst the contemporaneous documents of a traffic count supporting that statement.

[51]On 17, 18 and 22 September 1997 the Highway Design Section and the Department of Highways and Transportation of LCC prepared proposals for additional works and road markings to be carried out, and signs to be erected warning of queuing traffic. LCC’s case is that these signs were not in place before the accident, but that a different sign put up by contractors was in place. The Claimant’s case is that the sign warning of queues was put up after the accident.

[52]On 25 September 1997 the Department of Highways and Transportation of LCC recorded statistics of traffic using the four arms of the junction at quarter hour periods in the morning and evening peak hours.

[53]On 29 September 1997 LCC issued a further press statement. As before, it attributed the problem to “rat-runners turning right onto the A61 from Wigton Lane and blocking Leeds bound traffic” and suggested that the problem would be considerably reduced if children came to school by bus rather than by car.

[54]On 29 September the West Yorkshire Highways, Engineering and Technical Services Joint Committeerecorded counts of traffic at the junction. There are handwritten unattributed records of traffic counts at the roundabout at the morning peak period dated September 1997.

[55]There is a four page document headed “Leeds Grammar School – Opening Traffic Difficulties – September 1997” which bears no more precise date or indication of authorship. In evidence Mr Hacker thought that it had probably been prepared by him and colleagues of his. The document records the current conditions, the school’s intention and options for the immediate future. One point made in relation to current conditions is that traffic was queuing back from the junction north along the A61 and through the roundabout, thereby obstructing traffic turning right into or out of the school. Reference is made to traffic counts undertaken by both the school and by his own department. The document then goes on to state that the school was generating “some 25% more car traffic than estimated at the outset”. The reason given for this is that “apparently only 14 buses are effectively operating at the school and not the 30 originally planned for”. There is also a reference to a fare increase, and to people “dropping off”, meaning that children were alighting from cars outside the school grounds. The traffic counts referred to do not appear to support the 25% figure.

[56]On 1 and 9 October 1997 Mr Hacker attended meetings to discuss the problem, first with councillors and the police, and then with the school.

[57]On 10 October 1997 the Senior Group Engineer Accident Studies in the Department of Highways and Transportation prepared a memorandum assessing the benefits and risks associated with a proposal to ban right turns by southbound traffic at the junction.

[58]On 14 October Mr PC Jackson, an official of the Department of Highways and Transportation, prepared a memorandum on the traffic problems observed in the region of the school and the junction over the two weeks commencing 30 September 1997. This document describes queues at various locations. It contains the first reference to a queue on the A61 extending north from the junction to the blind bend. In fact the reference is to a queue up to the A61/Fortshot Lane junction, which is to the north of the blind bend.

[59]There are a number of events after the accident on 15 October which relate back to the preceding period.

[60]On 16 October 1997 PS Milburn, Weetwood Road Traffic Commander, West Yorkshire Police, wrote to LCC. He referred to the accident and stated that “some months ago” he had spoken to officers in the Traffic Management and Design Department concerning the roundabout. He wrote: “On that occasion I raised concerns about traffic tailing back from the roundabout in the direction of Harrogate and Harewood, particularly during the morning peak period. I warned that unless some action was taken, either to alter the arrangements at the roundabout or to make adequate provisions in respect of warning signs along Harrogate Road indicating the possibility of tail backs, that a serious road traffic accident would occur”.

[61]PS Milburn gave evidence. It is not surprising that after the passage of so many years he was unable to identify when and to whom he had spoken, or in what terms. At the time the letter was written the school had been open only for about five weeks. If he had given a spoken warning “some months” before, then whatever had prompted him to speak was not a problem related to the school. But as other evidence shows, there were queues on the A61 before the school opened.

[62]There was prepared in Mr Hacker’s department a report dated 17 October 1997 upon traffic and transport conditions at the junction. In evidence he stated that it was prepared with the assistance of colleagues in his department. The stated purpose of the report was to seek the approval of the Highways and Transportation appointed members sub-committee for the introduction of further measures designed to reduce congestion at the junction. The report does not refer to the accident of 15 October. Under the heading Current Conditions the report records that the situation during the morning peak period remained unacceptable. It adds that immediate action had been taken to advise motorists of the queues and to adjust the timing of the signals and this may be related to the information about the accident given to LCC by PS Milburn. The six most notable problems are listed, the second being that traffic was queuing back from the junction along the A61, through the roundabout, thereby obstructing traffic turning right into and out of the school. It is stated that the conditions result from the traffic generation from the school being greater than predicted. It is suggested that the root cause of the high traffic generation was the lower than expected use being made of the bus services to the school. After the passage of time, it is not now possible to ascertain the basis of the suggestion in this document that the traffic was greater than predicted. 15th OCTOBER 1997

[63]The traffic signs in place at the time were as follows. There were chevrons in the middle of the A61 as it rounded the blind bend, and to the north of the bend. There were also continuous white lines, about a metre apart, on each side of the chevrons. The whole carriageway, including the two lanes and the chevrons in the middle is about 9m wide. There were other chevrons on panels attached to vertical posts on the west side of the road indicating that it was a sharp bend (ARMCO safety fences). To the north, before the bend, there was a standard road sign warning that there was a bend, and a panel underneath it reading “REDUCE SPEED NOW”. The word “SLOW” was painted on the road some distance to the north of the bend. There is an issue as whether there was a traffic sign that the traffic ahead might be stopped in a queue. I shall consider this below, and at this stage assume that it was not there.

[64]The weather was wet or damp with fog or mist. It is agreed that the sightline was 36 metres round the blind bend.

[65]The Claimant describes the circumstances leading up to the accident as follows. At the time she was aged 27 and had been driving for some ten years. The car she was driving was a courtesy car lent to her by a garage while her own was being repaired. She had been driving it for about a week. On the day in question she left home at about 8.15 in the morning. She picked up two passengers. The first sat in the front passenger seat and the second, Mr Mead, sat in the rear. She was displaying dipped headlights. The traffic ran freely south of Harewood and she was travelling slower than normal because of the weather. She estimated her speed on the straight stretch of road before the bend at about 45 or 50 miles per hour. She states that there was no traffic immediately in front of her, but she could see the lights of a vehicle at some distance in front of her which she could not specify. That vehicle or those vehicles were not interfering with her progress. She was aware of cars immediately behind her. She had travelled along this road regularly for over a year and was aware that traffic did build up and create a backlog at the new road layout outside the new site of the LGS which, as she knew, had been opened for traffic earlier that year. In fact she had developed the practice of travelling into Leeds a little later than usual in the expectation that traffic would have cleared by that time.

[66]She had never come upon stationary traffic at the bend in the road where the accident occurred. The road was straight and on a downhill gradient before the bend. She knew that the bend was fairly sharp and about half way down the hill. As she approached it she recalls no traffic in front of her. She states that she slowed down in advance of the bend to around 40mph. Then she states the following: “As I came round the bend I was immediately confronted by stationary traffic, only about 4-5 metres away from me. My first vision was of a car with bright rear lights which had driven off the road - half on half off - onto the grass verge on my left. My first reaction was to steer to my right to avoid the stationary traffic. … I cannot remember what happened next”.

[67]As already noted, at that time of the year, and in that weather, it was not possible for a driver in the position of the Claimant to see across the hedge and verge on the nearside of the road to the stretch of the road ahead on which the traffic was queuing.

[68]The car behind the Claimant’s was a Renault driven by Mr Kirby. He had prepared a statement dated 27 September 2001 at the request of solicitors representing the Claimant to defend the proceedings brought against her by Mr Mead. He stated that around 8.45 am that morning traffic was heavy and he was following the Claimant’s car at speeds varying between 50 and 60 mph. He stated that there was traffic to the front and to the rear of their two cars. They were travelling at about 50 mph down the hill towards the bend where the accident occurred. As he made his way round the bend he saw the Claimant’s car’s brake lights come on.

[69]The car in front of the Claimant’s swerved to the left. It was a Vauxhall Cavalier driven by a Mr Ritchie. He did not give evidence. He came to a halt half on and half off the road on the nearside of a stationary lorry.

[70]In cross examination the Claimant said that she did not see Mr Ritchie’s car until it was too late. She denied that she was not paying attention. But she again gave the estimate that she was 4-5 metres away when she saw Mr Ritchie’s car. She maintained her evidence even when reminded by counsel that, according to figures given in the Highway Code, the minimum distance required to stop a car travelling at 40 mph in the conditions stated in the Code is 36 metres. She remembered seeing the word “SLOW” painted on the road before the bend where the accident occurred. She said she did not remember the chevrons painted on the panel attached to vertical posts to the west side of the road, but is sure she would have seen them.

[71]Mr Henfrey was asked by counsel about a statement given to the police by a Mr Calder describing how he had been driving immediately behind the lorry and thus in front of Mr Ritchie’s car. Mr Calder did not give evidence. Mr Henfrey remembered that car, but stated that it was the lorry that he first saw when he rounded the bend. Mr Kirby had no recollection of Mr Calder’s car but accepted that it was possible that he stopped behind that car and not behind the lorry. The Claimant did not recall Mr Calder’s car.

[72]It is not surprising that the evidence of the Claimant in particular, and to a lesser extent the other witnesses to the accident, is vague as to speeds and distance. It was many weeks after the accident when they first spoke to the police and nearly 12 years by the time they came to give evidence before me.

[73]It is submitted by Mr Elgot (and I accept) that all the witnesses must have underestimated the distances. A car length is about 5 to 6 metres. Figures derived from the Highway Code and evidence of PS Milburn on reaction times and stopping distances lead to the conclusion that the Claimant must have seen the stationary traffic very shortly after they came within the 36m sightline. It may well be that she would have needed to drive at 30 mph or less in the prevailing road conditions if she was to be able to stop without any accident at all. Mr Elgot emphasises that the witnesses driving behind the Claimant did not criticise her speed or manner of driving. But that does not take the matter very far. If she was driving too fast, then so were they.

[74]I can see no explanation as to why she did not start to brake sooner than she did, other than that the Claimant was driving too fast for the road conditions (albeit within the speed limit) or that she was not paying attention as she should have done to the road ahead of her. In other words, the Claimant’s own careless or negligent driving was a cause of the accident. Mr Elgot realistically accepted that this finding is inevitable on the facts before me, while at the same saying all that could be said in mitigation. The conclusion that I have reached after hearing evidence is consistent with the Claimant’s plea of guilty to careless driving and with the agreement made by the Claimant in respect of the claim against her by Mr Mead. I shall consider later whether the lack of care of the Claimant was the sole cause of the accident or not.

EVENTS AFTER 15TH OCTOBER 1997

[75]In the summer of 1998 alterations were made to the junction. Right turns by southbound traffic were banned.

[76]On Tuesday 8 December 1998 the Department of Highways and Transportation carried out a survey and recorded traffic movements on the four arms of the junction over 15 minute periods during the peak periods of the day. On 9 December the length of the traffic queues on the A61 north of the roundabout between 0700 and 1000 were recorded by markings on maps. The maximum queue length recorded was at 0835, when the queue reached the junction with Fortshot Lane. The queue at 0855 ended some distance to the south of the blind bend, just to the north of Millfield farm. By 0910 it was no more than the length of a few cars to the north of the roundabout. The queue between the junction and the roundabout was also recorded in the period between 0700 and 1000. The maximum length was at 0820, when it reached about two thirds of the distance north towards the roundabout.

[77]The traffic count taken at this time indicated that only a slight increase had been achieved in the flow of southbound traffic through the junction following the ban on right turns.

[78]On 20 January 1999 Mr Hacker called a meeting to review conditions on the A61, following the changes to the traffic arrangements for turning right at the junction from the north. The minutes record some initial conclusions that were reached at the meeting. One was that from 1997 to 1998 the volume of traffic entering and leaving the school in the morning peak period increased significantly. Another was that the queuing southbound during the morning peak period was more a consequence of the turning activity at the roundabout than delay at the signals.

[79]In 2004 a further development was proposed at the new site. The Leeds Girls High School was to be relocated on to the same site as LGS. The effect of this would be to increase the pupil numbers at the site from 1380 to 2065 and staff from 170 to 230. By this time Mr Darwin had succeeded Mr Hacker as Head of Highways Development Services.

[80]Faber Maunsell were appointed to prepare a Transport Assessment to support the planning application for the proposed merger of the two schools. Traffic surveys were undertaken on 4 October 2004. In October 2007 Council Members requested that independent Transport Consultants be commissioned to undertake a review. Steer Davies Gleave were appointed.

[81]In September 2008 the new merged school opened.

THE CLAIMANT’S CASE

[82]The Claimant’s case as pleaded in the Re-Amended Particulars of Claim is that the LCC is liable in respect of the damage suffered by Mr Mead. In other words, the allegation is that LCC was in breach of a duty of care it owed to Mr Mead, and that the accident was a result of that breach. The breach of the duty of care alleged is that LCC by its officers, “caused or permitted the creation of an obvious safety hazard to southbound traffic on the A61 namely the Grammar School roundabout”.

[83]There follow particulars of negligence, which can be summarised under two heads, one relating to the design and build, and the other to the period after the opening of the school in September 1997. So far as the design and build of the roundabout was concerned, the alleged negligence consisted in allowing no reserve capacity on the roundabout, while basing its design on unreasonably low assumptions of the traffic flow and a disregard of the allegedly obvious fact that there would be traffic impinging on the flow of the roundabout, by reason of the queues that would form back up to the roundabout from the junction, which was also predicted to be lacking capacity. In relation to the period after the opening of the school in September 1997, the alleged negligence is the queues of traffic forming north of the roundabout presented an obvious danger to southbound traffic on the A61 at the blind bend, but LLC failed to erect a sign before the blind bend warning of these queues.

[84]There are further particulars of the failures in relation to the design and build of the roundabout and the signal arrangements at the junction. The main allegation advanced at trial relates to the decision to adopt the modal split of 46% (para 33 above). In so far as LCC relied on an expectation that the school would provide a convenient bus service, then it was a breach of duty not to have made the provision of an appropriate bus service a condition of the permission granted. LCC failed to carry out the safety audits of the new road layout.

[85]The Claimant’s case on what constituted the danger was refined in closing submissions. Mr Elgot noted that the circumstances in which an accident would occur (and in which the accident did occur) were only present when the queue ended at exactly (his emphasis) the right point just south of the blind bend. As he put it:

“It is a queue up to a blind bend that is the defining characteristic of this claim”

. This refinement was clearly correct. The roundabout itself was not an obvious safety hazard.

[86]The Claimant’s case on causation is that there are statements made to the police in late March 1998 by the driver and passenger of the Ford Sierra. They stated that on their journey towards the accidents they saw no roadworks or anything causing the queue of southbound traffic. On the footing that that evidence excludes any other cause for the queue, it is to be inferred that the queue was caused by the overloading of the junction and roundabout. The Claimant also relies upon a number of contemporaneous statements by LCC, Mr Hacker and others as to what they thought at the time was the cause of queuing, not on 15 October itself, but generally in the weeks after the opening of the school on its new site. In addition, the expert evidence of Mr Dmoch formed a central part of the Claimant’s case both on breach of duty, and on the cause of queues in general in the weeks up to and after the accident.

THE DEFENDANT’S CASE

[87]The Defendant’s case is that LCC did not create a danger and were not in breach of duty. The accident records for the site of the accident do not show that there was an increase in accident rates as a result of the introduction of the roundabout. The choice of a 46% modal split was within the range of reasonable predictions, and assumed a higher car usage than that proposed by the school and by the school’s engineers, Frank Graham and BGH. It was within the range of reasonable decisions not to make the provision of an adequate bus service a condition of the planning consent.

[88]If there were a breach of duty, it did not cause the accident. If LCC had done the computer analyses which the Claimant alleges that they ought to have done, it would not have made any difference, because these analyses would not have shown a risk of danger at the blind bend. All that they would have shown was that there would have been queues of traffic of various lengths, none approaching a length up to the blind bend. The computer analyses that have been run for the purposes of the trial do not show that queues could be predicted up to the blind bend.

[89]The explanation for the queues that is put forward by Mr Jones, the Defendant’s expert, is that they resulted from the inadequate provision within the school grounds of space for drivers to drop off boys, so that queues from the school access road interfered with the traffic flow on the roundabout. As already noted, this explanation had been mentioned in 1997 and was raised in 2005 when Faber Maunsell, instructed by the school, observed this defect and recommended changes to the layout within the school. These and other recommendations were subsequently put into effect, and the problem of queues north up the A61 ceased.

[90]As to signs on the A61 warning of specifically of queues, the Defendant’s case is that there were already sufficient warnings of danger generally at the blind bend, and that the absence of further sign did not cause the accident.

THE DANGEROUS SITUATION

[91]I accept that Claimant’s submission that the presence of a stationary vehicle immediately to the south of the blind bend was a dangerous state of affairs.

[92]I also accept the Defendant’s submission that that finding does not advance the Claimant’s case very far. Stationary vehicles may be found on any road at any time. The fact that there is a stationary vehicle at a dangerous place may be indicative of carelessness on the part of someone, or it may not. If the driver has simply stopped for no good reason, then it may be careless or even dangerous driving on his part. And if the presence of the stationary vehicle at a dangerous place is caused by the act of the highway authority placing an obstruction on the road, then it is possible that there may be a breach of duty by the highway authority. But if the presence of the stationary vehicle is due to fog or normal levels of congestion or a host of other common causes, then there may be no fault on the part of anyone. And even if there is a fault, if the stationary vehicle at the dangerous place is one at the end of a very long queue of stationary traffic, the fact that that danger has occurred at that place may not be a foreseeable result of whatever has occurred at the front of the queue.

THE CAUSE OF THE QUEUE ON 15 OCTOBER

[93]As already noted, there was no claim by Mr Mead or the Claimant advanced against LCC at the time the accident occurred. If anyone representing the Claimant investigated whether the accident was caused by LCC, then no evidence of such investigation has been adduced.

[94]During the trial the Claimant’s side produced a report dated 8 November 1997 addressed by Harrison Claims Consultancy to insurers. The report addresses the circumstances of the accident. It includes records of interviews with the Claimant, her front seat passenger, and Mrs Harrison Bland of Wikefield Farm, who gave evidence at the trail. The report also contained a description (together with still and video images) of the site of the accident.

[95]The report of 8 November 1997 also records the existence of the roundabout and the opening of the school on 5 September 1997, and it raises a question as to the decisions made by LCC. The writer recommends further investigations of the statistics of accidents in the locality, so that a comparison may be made between September-October 1997 and the corresponding period in the previous year. Evidence of such statistics was in fact adduced by the Defendant at the trial. There is nothing in these statistics which assists the Claimant. I accept the evidence relating to other accidents given to me by Mrs Harrison Bland and others at the trial. But it is not necessary for me to set it out.

[96]The statements taken by the police in contemplation of the prosecution of the Claimant were taken five months later. There is nothing to indicate any interest on the part of the police in the decisions made by LCC.

[97]The fact that the accident had occurred was reported to LCC on the next day, 16 October, by PS Milburn who had attended the accident. But his concern was general traffic safety. He was not suggesting that there had been any breach on the part of LCC of a civil law duty or of the criminal law. There are documents which suggest that LCC took note of his letter and considered what should be done for the future, including erecting new signs on the A61. But there was no investigation by LCC into what had happened in the past, such as whether anything that it had done or failed to do might have caused the accident. No such suggestion had been made, and no such investigation was called for.

[98]As already noted (para 47 ff above), from 10 September 1997 LCC were well aware of the queuing on the A61, and a number of different possible explanations were being canvassed, and investigations being carried out.

[99]Before considering the possible explanations for the general traffic problems observed in September and October, it is to be noted that the time of the accident was 0855. There is no dispute that the morning peak hour for traffic going to the school is 0730 to 0830. Within that hour a survey carried out on 25 September 1997 recorded peaks at 0750 and 0815, with very few vehicles arriving after 0830. So the accident occurred about half an hour after the end of the peak time for traffic arriving at the school. On the Claimant’s evidence she did not expect to see a queue as late as that, although she had experienced queues at earlier times.

[100]As noted above (para 76) a further survey was carried out over a year later in December 1998. By that time LCC had imposed a ban on southbound traffic turning right at the junction. That measure was intended to reduce the southbound queues. It may have had some positive effect, but if so, it certainly did not solve the problem. The survey shows that the maximum queue length was at 0835, when it reached Fortshott Lane, about 500m north of the blind bend. The queue that day had first reached a point near the site of the accident at about 0815, and then reduced back to a point near to the site of the accident by 0840. The traffic must have been moving very slowly at that time, because in the fifteen minutes to 0855 the end of the queue was at the right hand part of the S bend, some 600m or so to the south of the blind bend, back to where it had been at 0805.

[101]It follows that the queue that occurred on 15 October 1997 could have been due to whatever factors caused the queues generally in the months after the school opened. LCC does not argue that there was another cause operative on 15 October. I find that the cause of the queue on that date was in fact the same as the cause of the queues that had been observed from 5 September 1997, and which continued to be observed in 1998 for some years thereafter.

The modal split and the capacity of the junction and roundabout

[102]At the forefront of the Claimant’s case was the submission that the choice of modal split of 46% was “beyond all reason”. Further it was submitted that even on the assumption that a 46% modal split had been correct, the roundabout was designed and built without reserve capacity, and the junction also lacked reserve capacity. It followed that on a reasonable assessment of the modal split the junction and the roundabout would be overloaded, which would explain the queues that were observed. Contemporaneous documents refer to the limited capacity of the junction. A memorandum dated 6 March 1995 by Mr Falconer to Mr Lloyd (neither of whom gave evidence) recorded that the junction would have negative reserve capacity.

[103]LCC submits that there is insufficient evidence upon which the Court can find that the queuing was caused by the roundabout or the junction, or the interaction between them.

[104]So I first consider whether the modal split in September and October 1997 was in fact 46%, as predicted, or whether more cars were arriving than had been predicted. I shall consider the capacity of the roundabout and the junction separately.

[105]The modal split for the old site, as recorded in July 1994 by Frank Graham representing the school, had been 68% in the morning (782 pupils in 586 cars, an average of 1.33 pupils per car), and 282 by organised bus service. In addition 111 staff arrived in 94 cars. In the afternoon the modal split was 46% (542 pupils leaving by car and 523 leaving by bus). Mr Hacker noted on 14 July 1994 that the school was to expand from 1160 to 1300 pupils. He concluded that the proposed roundabout would “only just accommodate the school traffic without causing undue delay or queues for other traffic on the Harrogate Road at peak hours”.

[106]Mr Dmoch considered these figures in his report dated 17 October 2008. He did not accept that a reduction from 68% to 46% was plausible. He agreed with Mr Townsley’s view (expressed in his critique on behalf of the golf club) that there was no realistic expectation that the morning peak traffic would drop from 586 to 390 whilst pupil numbers increased. He concluded that if the modal split remained as it was on the old site, predicted school vehicles would have been 48% higher.

[107]This report of Mr Dmoch is expressed prospectively. Although written in 2008, it is expressed in terms of what he would have expected had he been in LCC’s position in 1994. He refers to no data to compare what he would have expected in 1994 with what actually happened in 1997.

[108]Mr Jones did compare what had been predicted in 1994 with what had been recorded in September 1997 and December 1998. In 1994 BGH had prepared Arcady calculations to predict the vehicles arriving at the school in time periods of 15 minutes between 0730 and 0830. 573 cars were predicted to arrive between these times. Mr Dmoch agreed that Mr Jones had correctly prepared his comparison from these figures. Mr Jones notes that what was observed in 1997 was that 496 cars arrived and in December 1998 that 573 cars arrived, in each case between 0730 and 0830.

[109]Although there is no dispute that these figures are correct, there is a dispute as to how they are to be explained. LCC submit that these figures show that the modal split of 46% was justified retrospectively.

[110]Mr Elgot submits that there are other explanations. Mr Elgot notes that the contemporaneous documents show that LCC believed that more cars were arriving than had been predicted, not that the predictions had been justified. He also notes that the modal split at the new site at the time of the merger was 77%. He refers to a traffic count in 1998 showing 647 pcus entering the school over a similar period. He suggests that if the figures for arrivals by car were as low as BGH had predicted, then that must have been the result of the traffic chaos that followed the opening of the school. The pupils being dropped off on the roads outside the school may explain the lower number of cars observed arriving than would be expected if the modal split of 46% is wrong. And some pupils were being forced to use buses and would revert to cars when the queuing abated. The problems with the internal layout of the school may have emerged when the numbers arriving by car increased.

[111]Mr Turner responds that if 68% of 1250 pupils were arriving by car at the rate of 1.3 per car, then 654 cars would be arriving in addition to cars carrying staff. And there is no quantitative evidence that the shortfall was made up of boys being dropped off on roads outside the site.

[112]Mr Elgot also complains that LCC did not call as witness Mr Lloyd and others who, he submits, could give evidence of the causes of the queuing. He submits that the court should infer from this approach by LCC that those witnesses would give evidence tending to support the Claimant’s case. He invites me to treat as admissions of fact the views recorded contemporaneously in the documents as to the explanations for the problems that were observed. I do not accept that the views recorded contemporaneously can be treated as admissions of fact. Those expressing these views were expressing a number of different views as to possible explanations for the problems, and LCC were engaged in trying to find out what the cause of the problem was.

[113]So I ask myself what conclusion I can draw. There is force in the Claimant’s case that the numbers of cars arriving in the morning was greater than is consistent with a 46% modal split. With hindsight, it is hard to see why the modal split at the old site should have been 68%, and the modal split on the new site in 2005 should be 77%, and yet that the modal split on the new site in 1997 should have fallen to 46%. And it would be surprising if the professional observers within LCC in 1997 should have been persuaded that more cars were arriving than had been predicted, if in fact the predictions LCC had relied upon were being shown to be correct. But it does not follow that I should find that the Claimant’s case is proved. There are contrary arguments that I cannot dismiss. There are the figures which show how many cars in fact arrived, and no evidence upon which I can quantify how many pupils were being dropped off. It is pure speculation that the pupils being dropped off make up the difference. If there had been between 100 and 200 pupils walking to school along the 650m access road each morning, I would have expected there to be some reference to these large numbers in the contemporaneous documents. The explanation of dropping off is given no more prominence in the contemporaneous documents than the explanation that the internal layout of the school car park was creating problems. And there is the puzzling reference in the contemporaneous documents to traffic counts which show that the cars arriving exceed those predicted by 20% and 25%, when no such traffic counts can be found in the surviving documents. That tends to undermine the plausibility of the views expressed at the time by Mr Hacker and others.

[114]That there should be such discrepancies is not very surprising after a lapse of time of so many years. It is a reminder that I am being asked to decide this case on what may very well be incomplete documentation. Some documentation may not have survived. And other information may not have come to light because the Claimant chose to wait so long before advancing a claim against LCC.

[115]In these circumstances I find that the Claimant has not proved that the number of cars arriving at or near to the school in September and October 1997 was greater than the number predicted when the planning consent was given. In reaching that conclusion I have taken into account my findings in relation to other possible explanations for the queues which I consider below.

LCC’s case on the cause of the queue

[116]LCC submits that the problem which caused the queuing was the layout of the car park in the school grounds.

[117]This submission is based mainly on data collected in 2005. But there is evidence from 1997 relating to this point. There is the document of September 1997 referred to in para 55 above. This includes two references. At para 2.2 a number of “severe difficulties” are mentioned, including “(iv) traffic is queuing to get out of the site and sometimes to get into the school car park” [emphasis added]. At paragraph 3.5 it states: “With regard to the car park provision within the site it is reported that not all of that planned for has yet been released by the building contractor”.

[118]There is the document dated 14 October 1997, the day before the accident, which is based on observations and suggests that there were a number of different reasons why queues formed, some of them unrelated to the school. Mr PC Jackson of LCC’s Department of Highways and Transportation reported that traffic problems had been observed over two weeks commencing 30 September at the A61 and the junction. Most of the observations had been made on a Tuesday or Thursday, but additional observations had been made in the evenings. It ends stating: “On one morning it was noticed that the arrival rate at the … school was so high that a queue developed on the drive within the school grounds which subsequently locked up the roundabout. The effect of this was to reduce the outbound capacity of the A61 such that the queue reached the junction of Harrogate/Primely Park Lane”.

[119]The junction of Harrogate/Primely Park Lane is south of the junction by several hundred metres. The report does not say how far the queue extended to the north on that occasion. The report does refer to a queue north of the junction on Tuesdays (presumably two Tuesdays) in the morning up to the Fortshot Lane junction with the A61. But unlike the queues on 15 October 1997 and 9 December 1998, these queues are described as occurring between 0800 and 0830. No explanation for them is suggested. The queues were moving slowly, since it is stated that the journey time from joining the queue to crossing the junction (about 1.6km) was of the order of 10 minutes.

[120]The document dated 17 October 1997 referred to in para 62 above includes words which suggest that LCC had already raised with the school the problems with the internal layout of the school car park. At para 2.2 there is the following:

“… following discussion with highway officers, the school has instigated a programme of new measures within the school to ease circulation arrangements in the school car park…”

[121]By letter dated 20 October 1997 LCC wrote to LGS giving their view of the cause of the problems. LCC refer to the shortfall of buses and ask for steps to be taken to encourage bus use, but the letter also requests:

“… continued pro-active management of the school car parking arrangements…”

The experts on the internal layout of the school car park

[122]There is some measure of agreement about the deficiencies of the internal layout of the school, although not about any effect it might have had on the operation of the roundabout. In his report of 17 October 2008 Mr Dmoch did not consider the effect of the internal layout, but he did write at paras 3.54 to 3.56: “The internal layout of the school is unable to accommodate the number of vehicles dropping off pupils in the morning peak hour. In the committee report (June 2006) for the proposed amalgamation with Leeds Girls High School … the comments from the highway department were as follows: ‘Whilst improvements to the internal drop-off/pick-up system with the school grounds are welcomed, there are also uncertainties with the potential ‘knock-on’ effect of this on the adjacent highway network. At present traffic entering the site from the south is often slow moving or at a standstill at peak times due to the inadequacies of the school’s internal access and drop-off/pick-up area’ The proposals for the merger include a revised car park layout… The internal [existing] layout … is clearly poorly designed as it does not assist the efficient dropping-off and picking-up of pupils. It is usual to design such areas so that vehicles can park parallel to the kerb and then depart in forward gear. However, I would not say that the Council were unreasonable in agreeing the original layout”. ‘Whilst improvements to the internal drop-off/pick-up system with the school grounds are welcomed, there are also uncertainties with the potential ‘knock-on’ effect of this on the adjacent highway network. At present traffic entering the site from the south is often slow moving or at a standstill at peak times due to the inadequacies of the school’s internal access and drop-off/pick-up area’

[123]Mr Jones on the other hand concluded in his report of 16 October 2008 that “the most likely reason for the development of queues during the morning peak period would be as a result of the traffic queuing from the school access road onto the roundabout”.

[124]Mr Elgot was critical of this opinion, submitting that it suited LCC’s case in that it provided an explanation which could not be associated with any breach of duty on the part of LCC. However, as Mr Jones had recorded in his report, the idea was not his, but was derived from Faber Maunsell.

[125]In a Transport Note dated April 2005 Faber Maunsell recorded the results of traffic surveys carried out on 5 October 2004. They concluded that:

“The existing road network has been shown to be sufficient to accommodate the existing traffic flows. The extensive queuing observed on street appears to be the result of problems internally at the school….”

[126]The Transport Assessment of Faber Maunsell is dated October 2005. Since it was prepared in support of the planning application for the proposed merger of the two schools, it has not been suggested that any views of Faber Maunsell were advanced to suit the interests of LCC in this litigation. Faber Maunsell refer to traffic surveys undertaken. At para 3.5 of the report (in the section headed Existing Conditions) they state that on-site observations show that during the morning peak hour there is queuing on all approaches to the junction for approximately 45 minutes from 0745 to 0830. The section concludes as follows: “The on-site observations have clearly established that the inefficiency and inherent delays within the internal traffic management system at LGS causes traffic to queue back along the … access road and onto the A61 roundabout. This results in the … roundabout being blocked by vehicles travelling from the south to the school and having priority, in the right hand turn, over southbound traffic from Harrogate waiting to access the [school] or proceed ahead towards Leeds. In addition the queuing has an impact on the operation of the … junction… as the vehicles waiting to turn into the … site at times block back to this junction. It is therefore essential that significant improvements to the capacity, layout and management of the on site roads and car parks are implemented, to remove any blocking on to the A61 and therefore remove any associated congestion. This will overcome both existing problems on the adjacent road network and ensure that the additional vehicles associated with the proposed school merger can be accommodated [this paragraph is emphasised in the original]”.

[127]Faber Maunsell provided to LCC an aerial photograph showing the queue extending out of the school grounds. They also informed LCC that by that time 77% of the pupils were travelling to the school by car. After taking independent advice from transport consultants Steer Davies Gleave, LCC concluded that there was no reason to doubt that the proposals of Faber Maunsell would not be sufficient. The proposed development was permitted, subject also to improvements to the roundabout and the junction.

[128]The proposed merger was expected to result in an increase in pupil numbers on the site from 1380, as they were in 2004, to 2065, and staff from 170 to 230.

[129]When the experts came to issue a joint report dated 12 March 2009, Mr Dmoch did not agree that the internal layout of the school caused queues on the access road. For the most part his reasons were of kind that did not require his expertise. They may be none the less valid for that, but they are reasons which the court is equally well able to evaluate. For example, Mr Dmoch noted the paucity of references in the 1997 documents (referred to above) to problems with the school access road. But he did apply his expertise to the survey in December 1998. Mr Dmoch noted that the records showed only a short queue of short duration on the northbound A61 roundabout entry. He could not see how a queue from the school access could have caused the southbound queue to build up (ie north of the roundabout) whilst at the same time not causing a northbound queue (ie south of the roundabout). The experts did agree that if there was traffic queuing from the roundabout as far as the school car parks, then this may have affected the inflow of school traffic from the roundabout.

[130]At the meeting of experts reference was made to a video survey that had been undertaken at the entrance to the school on 15 April 2005 between 0700 and 1000. The survey had been commissioned as part of the assessment of the planning application for the merger of the two schools. Mr Jones noted that it showed a “slow procession” of traffic into the school access road, which gives rise to a southbound queue on the A61 from just before 0800 to around 0820.

[131]On 27 March 2009 Mr Jones produced a supplementary report to comment upon the 2005 video. He noted that between 0750 and 0820 there was either slow moving or stationary traffic on the school access road. He noted that there were two peaks within the peak period, and that this phenomenon occurred both in 1997 and in 2005. He referred to the data collected on 25 September 1997, and compared it to data collected on 15 April 2005. The 1997 data showed a peak of 60 cars per five minute period at about 0800 and 50 cars per five minute period at 0825. The 2005 data showed two similar peaks, of 70 and 60 cars respectively, the second peak being at 0825. While there were more vehicle movements in 2005 peak hour, within that hour the vehicles turning right into the school in 2005 in the period between 0750 and 0820 numbered 293, which was not very many more than the 288 that had been counted turning right into the school in 1997. Mr Jones drew two conclusions from this comparison. First, for the period 0750 to 0820 the data recorded in 2005 can be considered representative of the conditions which might have prevailed in 1997. Second, the junction was capable of dealing with in excess of 70 right turning vehicles per five minutes period, so the reason for the reduction in flow to between 40 and 50 vehicles per five minute period between the two peaks was not the capacity of the roundabout. He inferred the reason was the ability of the school access road and car park to cope with the demand.

[132]In cross-examination Mr Dmoch stated that he did not disagree with Mr Jones’s figures, but considered that the 2005 data was of limited use. He accepted that Mr Jones’s interpretation was a possible one, but suggested that there may be another explanation. It may not have been the capacity of the school access road that explained the trough between the peaks, but the arrival profile. There was no evidence to support this conjecture.

[133]Mr Elgot reiterated the point made by Mr Dmoch, namely that there is little contemporary reference to any queue in the access road in 1997. He also argued that if the arrival rate of vehicles was 70 vehicles per five minute period, then the roundabout must have been so full of traffic that it would difficult for southbound traffic wishing to turn left to enter the roundabout.

[134]Mr Elgot is critical of Mr Jones’s evidence. He submits that a comparison with data from 2005 is unhelpful because there is no evidence in 2005 of the length or frequency of queues, and the traffic levels in 2005 were higher in 2005 than in 1997. The traffic count of September 1997 showed 496 cars entering the car park between 0730 and 0830 in 1997, whereas the October 2004 count reported by Faber Maunsell in 2005 showed 750 arrivals in the same hour. He submits that if there was queuing in the access road in 2005 then that might have been the result of the increased amount of traffic.

Other changes since 1997

[135]Since the problem of queuing did in fact disappear after the merger of the two schools in 2008, it might be thought that it would be possible with hindsight to establish what provided the cure, if it was not the changes to the internal layout of the school car park. This is not an approach which has been adopted by the Claimant.

[136]Apart from the alterations to the internal layout of the school car park, another change since 1997 was the addition to the roundabout of a 90m flare which permitted southbound traffic to turn left into the school access road without joining the roundabout itself. Thus southbound left turners did not have to give way to right turners coming up from the south. But there have been no analyses performed on Arcady or otherwise on the effect of this change to the roundabout. On those occasions when the access road was blocked up to the roundabout, it is hard to see how this 90m flare could have helped. The left turners from the north, and the right turners from the south, both progressed into the access road, where they merged together. On the other hand the 90m flare would give some help to the southbound traffic if the access road was not blocked: it means that the right turners from the south no longer have priority over the left turners from the north as they passed in front of the northern arm of the roundabout.

Conclusion on the cause of the queues

[154]I have considered the contemporaneous documents as amplified by the oral evidence. Mr Hacker said little in his oral evidence which differed from what could be inferred from the contemporaneous documents. It is not surprising, after twelve to fifteen years, that that should be the case.

[155]I find that the least that must be inferred from the contemporaneous documents, together with the expert evidence, relating to the internal layout of the school is this. It is more likely than not that on some occasions the internal layout of the school was at least one important cause of the blocking of the roundabout, and so of the queues of southbound traffic on the A61. There are contemporaneous references to this problem, including requests by LCC to the school to address it. The experts agree that there were defects in the internal layout. And after the internal layout was changed following the recommendation of Faber Maunsell, the problems disappeared.

[156]Given the burden of proof upon the Claimant this is a crucial finding. No criticism is made of LCC in relation to the internal layout of the school. So even if the Claimant could prove that on other occasions there were other causes of queues, responsibility for which can be attributed to LCC, the Claimant must still fail to prove her case. She has to prove that the queue at the time of the accident was caused by a breach of duty on the part of LCC. If it might have been caused either by a breach of duty on the part of LCC, or by the internal layout of the school, she cannot prove that one of these causes was more likely to have operated at the time of the accident than the other. So she will have failed to prove her case.

[157]A similar result follows from the finding that I have made in relation to the buses. The Claimant attempted to attribute responsibility for the lack of buses to LCC by contending that the bus service ought to have been made a condition of the planning consent. I reject that. First, the agreed evidence was that in the mid 1990s it was not the practice to make such matters a condition. A failure to do it in this case was not outside the range of reasonable options available to LCC. Second, even if that had been done, I find that it is unlikely that the failure by the school to comply with the condition would in practice have been remedied before 15 October, when the accident occurred. Third, if the failure had been remedied, there is no evidence that pupils would have changed their mode of transport from car to bus by 15 October so as to reduce the number of trips by car. I find it to be unlikely that the mode of transport would have changed so quickly, since the school had no control over how pupils arrived, but could only offer the buses.

[158]The Claimant cannot exclude the possibility that there was a failure of the school to arrange for the provision of sufficient buses at a fare attractive to pupils. That is another possible cause of the queue on 15 October for which no responsibility can be attributed to LCC.

[159]It follows that the Claimant has not discharged the burden of proving that the cause of the queue, and so of the accident and injuries to Mr Mead, was any act or omission on the part of LCC or of any individual representing LCC.

CAUSATION AND SIGNAGE

[160]I turn to consider the second basis for the claim, namely that LCC failed to warn the Claimant of the danger. Again I shall start with the issue of causation.

[161]When Harrison Claims Consultancy reported on 8 November 1997 they included a description of the road north of the site of the accident, including the signs. The first two signs they noted (and photographed) were on one post located 400m before the blind bend. The post was positioned on verge on the east side of the road in what was then long grass. There was a standard sign on the post warning of a junction with a minor road leading off to the left. Below that there was a sign which was at about ground level reading “SLOW Queuing traffic ahead”. This sign is on a flexible white material with black lettering and no other colour. There is a dispute between the parties as to when it was placed there. The Claimant contends that it was not there on the day of the accident, but was placed there by LCC afterwards, following the intervention of PS Milburn and others. LCC’s case is that this was not placed there by itself, but had probably been there for some time, having been put there by contractors working on the road in April 1997, and not removed.

[162]For the purposes of deciding the issue of causation I shall first assume (without deciding) that the Claimant is correct, and that the sign was not there on the day of the accident. In any event, she did not notice it. She also said in evidence that she did not remember seeing the later sign warning of the blind bend. She was not asked about the sign warning of queues, because at the time she gave evidence the report referring to it had not been disclosed.

[163]I have already described the signs, road markings and chevrons which it is agreed were displayed on the day of the accident.

[164]The evidence of the Claimant is that she had travelled along this road regularly for a year. She was aware that traffic did build up and created a backlog at the roundabout built earlier in the year. She had developed the practice of travelling into Leeds a little later which was what she was doing that day, by which time the traffic would normally have cleared. She had never known traffic back up to that bend before and she had no reason to expect that that would be the case on this occasion. Stationary traffic at this point was totally unexpected.

[165]LCC contend that a sign before the blind bend warning of queues ahead would have made no difference to this Claimant. The Claimant would have assumed that it related to queues which in her experience occurred earlier, and which she was choosing to avoid by travelling at the later time when she was travelling.

[166]The Claimant said in her written evidence that there were no warning signs of queuing traffic. She did not give evidence of what she would have done if she had seen such a sign. What she would have done must therefore be entirely a matter of inference for the court.

[167]Mr Turner refers to the burden of proof on this issuing which lies on the Claimant. He invites me to infer that she would not have seen, or heeded, a sign warning of queuing, just as she did not see, or heed, the sign and chevrons warning of the blind bend, or the road marking telling her to slow. He invites me to infer that if she had seen a sign warning of queues she would not have heeded that either.

[168]Further Mr Turner submits that the issue of causation is the issue whether or not Mr Mead would have suffered any injury at all, and if so, what injuries. What the Claimant has to show is that LCC are liable to Mr Mead. What she is seeking to establish is that LCC’s failure to warn her caused his injuries: in other words, if there had been a sign warning of queues round the blind bend, then Mr Mead would have suffered no injuries or lesser injuries, for example because the force of the impact of the accident would have been lower.

[169]In my judgment it is not likely that the Claimant would have noticed a sign warning of queues (assuming as I do that there was not one).And if she had noticed such a sign, I find that it is unlikely that she would have heeded it. I find she would probably not have noticed it, just as she did not notice the sign warning of the bend. She thought she knew the road and the conditions she would find on it during that journey. If she had seen such a sign, she would have thought that the queues she knew occurred on the road would have dissipated.

OTHER ISSUES IN THE CASE

[170]It follows from my findings on causation that I do not need to decide any of the other issues in the case.

[171]I shall express my views on the other issues briefly. The issues of breach of duty, both in relation to the roundabout and the junction, and to a lesser extent in relation to the warning sign, occupied the greater part of the trial, and were the subject of much detailed and very complicated expert evidence. It would lengthen this already long judgment very considerably if I were to address these issues in full, and it would not be a proportionate use of the court’s time.

[172]I am left unpersuaded by the Claimant’s case in negligence. It is accepted that the allegation is one of professional negligence. It is not enough that an expert such as Mr Dmoch would have done things differently in 1994 to 1997. In Mr Elgot’s phrase the case has to be that LCC’s actions were beyond all reason.

[173]As to the modal split, there was clearly a difference of opinion between experts at the time. The school, with the results of a questionnaire, and through its consultants Frank Graham and BGH took a view that LCC in fact rejected. To this extent LCC’s view was that of Mr Townsley, who also rejected the school’s figures. Much evidence and argument has been devoted to demonstrating why the questionnaire was itself unreasonable, and to how modal splits are projected for different schools in different locations. The fact that Frank Graham and BHG adopted the views they did does not prove that their views were within the range available to professionals. But the fact that two different professional firms came to that view is a difficulty that the Claimant would have to explain.

[174]Moreover I am being asked to make a finding of professional negligence fifteen years after the impugned decisions were made, in circumstances where it is not possible to say whether the documentary record is complete. There is some evidence that it is not complete, namely the reference to traffic counts which cannot now be identified. LCC is a body which appears to have a more generous document retention policy than many organisations, and at least some of its officials make more notes than are to be found in some comparable organisations. But the fact that there is not a contemporaneous record cannot, after this passage of time, fairly lead to an inference that something was not done. If the matter had been investigated shortly after the impugned events, witnesses might have been expected to recall whether something which is not documented occurred or did not occur. At this late stage, it may well be dangerous and unfair to draw any such inference, although this would of course depend on whether what is in question is inherently memorable or not. From the point of view of LCC, there is no reason to suppose that the relevant events ought to have been inherently memorable. LCC dealt with very large numbers of planning applications, and has done so both before and since. It is not realistic to expect officials to recall the details of this particular development amongst so many others.

[175]The Claimant would also in my view fail on the issue of negligence in relation to the warning sign. I accept the evidence that queues went back as far as the blind bend after the school opened. Erecting a sign requires some period of time. Nothing had occurred between 5 September and 15 October which, in my judgment, required the sign to be treated as a high priority. There were already warning signs before the blind bend. There would need to be consideration given to where to place any new sign, and time to obtain any necessary approvals and to order it and to arrange for its installation. In 1997 there was not a standard sign for warning of queues, as there is now. Even assuming that there was a duty of care in relation to the warning, the duty relied on was one to use reasonable care. I do not accept that a delay up to 15 October would have been unreasonable in the circumstances of this case.

CONCLUSION

[176]The burden of proving that any act or omission of LCC caused the injury to Mr Mead is a burden that rested upon the Claimant. She has not discharged it. The claim must fail.

[177]It does not follow from my judgment in this case exonerating LCC that there must be someone else who is to blame, in addition to the Claimant herself. If anyone might be inclined to deduce from the conclusions that I have reached that LGS is to blame for the queues that developed generally, and the injury to Mr Mead in particular, then that would be an error.

[178]LGS are not a party to these proceedings, and if there was, or is, any dispute between LGS and LCC, I am not being asked to resolve it. Nothing that I say in this judgment should be taken as a finding adverse to LGS, or adverse to anyone else who is not a party to these proceedings. It would be unfair to read this judgment as attributing to LGS any blame for the traffic problems near the school generally, or the accident in particular. I am concerned only with the claim the Claimant has made against LCC. She has not made a claim against LGS, or anyone else. LGS have not been represented in these proceedings because the Claimant has made no allegations against LGS.

[179]The trial has occupied most of 11 days. Almost all of this time has been devoted to an enquiry into the actions and alleged omissions of officials of LCC during the planning stage of the roundabout. Some time has been devoted to the period after the school opened on its new site, during which LCC officials were investigating and trying to remedy the problems with traffic queues that developed. LCC called 14 witnesses of fact, all of them current or retired officials. Their written evidence in chief was the subject of cross-examination over three days. LCC disclosed numerous contemporaneous documents, some 2000-3000 of which were included in the trial bundles. In addition each side instructed expert witnesses on roundabout and junction design. There were expert reports, and an agreed statement, followed by further reports introduced during the trial. Even if the Claimant had succeeded, it is unlikely that the apportionment would have resulted in a large contribution in favour of the Claimant. The 1978 Act requires the court to order such sum as is just and equitable having regard to the extent of the person’s responsibility for the damage in question. This case illustrates the concerns expressed by the House of Lords in Gorringe (see Lord Scott at para 74) where, as here, a simple but tragic road traffic accident caused by a driver’s error led to a lengthy trial against a highway authority.