Sumner v Colborne & Ors, Court of Appeal - Civil Division, May 04, 2018, [2018] EWCA Civ 1006,[2018] WLR(D) 275

Resolution Date:May 04, 2018
Issuing Organization:Civil Division
Actores:Sumner v Colborne & Ors

Case No: B3/2016/4090

Neutral Citation Number: [2018] EWCA Civ 1006





His Honour Judge Pearce

[2016] EWHC 2541 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/05/2018

Before :




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Between :

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Tim Horlock QC (instructed by Horwich Farrelly Solicitors) for the Appellant

Andrew Warnock QC (instructed by Weightmans LLP) for the First Respondent

Lloyd Williams QC and Nicholas David Jones (instructed by Blake Morgan LLP) for the Second Respondent

Hearing date : 24 April 2018

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JudgmentSir Stephen Richards :


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

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

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

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

    The facts in greater detail

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

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

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

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

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

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

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

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

    The judgment below

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

  11. The judge referred next to the power under section 154 of the Highways Act 1980...

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