Court of Appeal finds council liable to pedestrian after failure to cut back vegetation on highway

The Court of Appeal has held that a highways authority still owed a duty of care to a pedestrian even though she was careless in how she tried to cross a busy road.

In Yetkin v London Borough of Newham [2010] EWCA Civ 776, the London Borough of Newham had failed to cut back the vegetation next to a “sheep pen” in the middle of the highway– designed to prevent pedestrians from crossing anywhere else – and this obscured the view of the carriageway. Ms Yetkin was hit by a car travelling in the outside lane as she left the pen and attempted to cross the road.

HH Judge Hegarty QC at the Civil Justice Centre had dismissed the claimant’s case against both the driver of the car and the local authority, ruling that Ms Yetkin had crossed the High Road in Stratford while the lights were green.

The judge also accepted submissions from counsel for Newham that the authority owed no duty to careless or negligent road users, and that what duty it did owe was limited to the avoidance of actions by which it created a “trap” for the road user or a dangerous situation into which the road user was “enticed”.

Ms Yetkin then appealed against the ruling in relation to the council.

Giving the lead judgement, Lady Justice Smith said Judge Hegarty had taken passages from Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, [2004] UKHL 15 out of context “and consequently misunderstood them”.

Lady Justice Smith said: “He (the judge) thought that they imposed additional requirements on a claimant bringing a conventional common law claim against a highway authority for creating a hazard on the highway. There are no such additional requirements.

“This highway authority owed a duty of care to all road users (whether careful or negligent) to use reasonable care in the manner in which it exercised its powers when it created and maintained the crossing facility.”

The highways authority had exercised its statutory powers to create a scheme for taking pedestrians safely across the road, through the erection of barriers and the ‘sheep pen’.

“It was the authority’s intention that pedestrians would rely on the traffic light system but it was entirely foreseeable that some would not do so and would cross without waiting for the lights,” said Lady Justice Smith, adding that it was “obviously necessary” to give pedestrians a good view of the carriageway.

The judge said: “The planting of vegetation in the raised beds of the central reservation is obviously a reasonable exercise of the authority’s powers but to plant shrubs which will grow so large as to obscure the view and then not to ensure that they are trimmed back is a negligent exercise of those powers.”

She went on: “I have no doubt that, in the circumstances of this case, the local authority had a common law duty of care towards the appellant, notwithstanding her own negligence, that that duty was breached and that the breach was the cause of the accident. There was no need for the judge to consider whether the danger created by the bushes amounted to a trap or enticement.”

Lady Justice Smith upheld the appeal, but agreed with HH Judge Hegarty QC’s assessment of the claimant’s contributory negligence at 75%. “It seems to me that when a pedestrian decides to cross a three lane highway in this way (and we all do it from time to time) he or she accepts a high degree of responsibility to ensure that it is safe to do so,” she said.