Claim that council negligently designed road which saw fatal crash was wrongly struck out, Court of Appeal finds

A legal challenge by a widower against Cornwall Council that contended the road that his wife had a car accident on was negligently designed has been allowed to progress, following a decision by the Court of Appeal.

In Brown & Ors v South West Lakes Trust & Ors [2022] EWCA Civ 18 (17 January 2022), Lord Justice Dingemans found that the argument advanced by the widower and his sons that the council negligently designed the highway "might have a real prospect of success" and should not have been struck out in an earlier hearing at the High Court.

The section of road on which the woman, Hazel Brown, was driving lies near Redruth, Cornwall and consists of a sweeping bend that borders a reservoir.

In 2017, Mrs Brown was drowned after her car crossed into the oncoming lane on the bend, went through a wire fence, and then fell down a bank into the reservoir where the vehicle was submerged.

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Her husband, Benjamin Brown, and two sons brought a claim for damages pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 against the council. He also brought a claim against the South West Lakes Trust, a charity with a licence to use the reservoir, and South West Water Limited, the owner of the lake.

Mr Brown advanced nine grounds at the High Court. The particulars of negligence and breach of statutory duty pleaded against the council argued Cornwall:

(a) caused and/or permitted the highway and/or reservoir to be designed and/or constructed and/or adopted without any sufficient assessment of the risks posed to motorists negotiating the left hand bend of the highway …;

(b) caused and/or permitted the highway to be designed and/or constructed with a radius on the bend which was significantly less than the absolute minimum prescribed by prevailing standards (including Memorandum No. 780 – Design of Roads in Rural Areas); and

(c) failed to heed, act upon and/or collate adequately all information and reports relating to previous accidents and incidents on the highway in the vicinity of the accident locus.

In response, the council pleaded that "no admissions are made as to the alleged or any involvement of the Third Defendant in the construction and/or design of the road and/or the reservoir and/or any other feature of the area in question.

It added: "It is noted that no such allegations featured in the pre-action correspondence. Such matters date back to the 1960's and will require further detailed investigation if these claims proceed."

The High Court judge, His Honour Judge Allan Gore QC, struck out and granted reverse summary judgment in respect of the claims made by Mr Brown and his children. His decision to strike out the claims was made on the basis that it had not been pleaded nor evidenced that the sharpness of the bend "was dangerous in itself, or that it caused this accident".

At the Court of Appeal, the defendants accepted that causation itself had been sufficiently pleaded but supported the High Court's conclusion that this claim against the council should be struck out.

Lord Justice Dingemans agreed with the defendants' argument that the pleading in the case did not contain some of the detail that might be expected in a claim for misfeasance on the part of a highway authority, for example, by specifying the angle of the bend and by specifying the angle recommended by prevailing standards. "That, however, is a different thing from saying that the claim did not disclose a reasonable cause of action and that the claim did not have a real prospect of success," he said.

"If the council (or its predecessor in title to whose liabilities it had succeeded) constructed a highway with a bend which was more acute than that recommended by prevailing standards for reasonable, prudent and competent builders of highways, and the acuteness of the bend was a cause of Mrs Brown's loss of control and accident, then the claim made by Mr Brown and his children might have a real prospect of success, even if there would be an inevitable and substantial reduction for contributory negligence on the part of Mrs Brown.

"This is because such a claim against the council as the highway authority would be for misfeasance in negligently creating a danger, rather than an impermissible claim against a highway authority for nonfeasance. In these circumstances in my judgment the judge was wrong to strike out the Particulars of Claim against the council and to give reverse summary judgment for the council."

Lord Justice Dingemans dismissed the claimants' appeals against the striking out of their claims South West Lakes and South West Water as occupiers of the reservoir. He allowed the appeal against the council to the extent of permitting the claim for negligently designing and constructing the highway with too sharp a bend to progress.

The claims against the council: as an occupier of the highway, for failing to maintain the highway; and for failing to exercise powers to erect a crash barrier; remained struck out and dismissed.

Lord Justice William Davis and Lord Justice Lewison agreed.

Adam Carey

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