Benjamin Michael Brown v South West Lakes Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice William Davis,Lord Justice Lewison |
| Judgment Date | 17 January 2022 |
| Neutral Citation | [2022] EWCA Civ 18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2021/0447 |
[2022] EWCA Civ 18
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
PLYMOUTH DISTRICT REGISTRY
His Honour Judge Allan Gore QC
Sitting as a Judge of The High Court
[2021] EWHC 469 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lord Justice Dingemans
and
Lord Justice William Davis
Case No: B3/2021/0447
Robert Weir QC and James Marwick (instructed by Chris Kallis Solicitors) for the Appellants
Matthew White (instructed by DAC Beachcroft) for the First Respondent
Julian Horne (instructed by BLM LLP) for the Second Respondent
Tom Panton (instructed by Weightmans LLP) for the Third Respondent
Hearing dates: 8 & 9 December 2021
Approved Judgment
Introduction
This appeal raises issues about whether claims: (1) under the Occupiers' Liability Act 1984 (“the 1984 Act”) against occupiers of land adjoining a highway; and (2) against the relevant highway authority; arising from a tragic road traffic accident which occurred on 16 May 2017, were reasonable causes of action or had a real prospect of success.
On 16 May 2017 Mrs Hazel Brown, then aged 29 years, was driving her Ford Fiesta motor car on the C164 highway near Redruth, Cornwall. The highway is subject to the national speed limit of 60 mph. The highway borders the Stithians Reservoir. Mrs Brown's car left her lane, crossed the other oncoming lane and a grass verge, went through a wire fence on the verge, and then went down a stone faced bank into the reservoir where the car was submerged. Mrs Brown was drowned.
A claim was brought by Mr Benjamin Brown, Mrs Brown's husband, and their children David Brown and John Brown, then aged four years and one year. The claim was for damages pursuant to the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The claim was brought against South West Lakes Trust (“South West Lakes”); South West Water Limited (“South West Water”); and Cornwall Council (“the council”). It is common ground that South West Lakes has a licence to use the reservoir. South West Lakes is a charity formed in 2000 to look after forty inland waters in Cornwall, Devon, Somerset and Dorset. The licence to use the reservoir was from South West Water, the owner of the reservoir. The council is the highway authority for the C164.
This is the hearing of an appeal against the order of His Honour Judge Gore QC, sitting as a Judge of the High Court (“the judge”), dated 17 February 2021 striking out and granting reverse summary judgment in respect of the claims made by Mr Brown and his children against each of the defendants.
The statements of case
As this is an appeal against the striking out of a claim it is necessary to examine the Particulars of Claim. The Particulars of Claim were dated 23 June 2020. The location of the accident was pleaded in paragraphs 7 and 8 of the Particulars of Claim. So far as South West Lakes and South West Water were concerned it was pleaded in paragraph 9 that “on the offside of the deceased's direction of travel and immediately adjacent to the wire link fencing was the main body of the reservoir and its sloping stone-faced banks”. It was also pleaded that “there was no safety barrier to protect against the risk of drivers losing control on the bend of the carriageway which crossed the reservoir and crashing into the reservoir”.
The location of the accident was pleaded to be “on a section of the highway where there was a sweeping left-hand bend which ran across the southern end” of the reservoir. This part of the highway was pleaded to be “a causeway road which crosses the southern end of the reservoir … albeit in recent years the area of land south of the highway at the accident locus has been marshland”. It was pleaded in the Particulars of Claim that there was “a history of drivers losing control of their vehicles at or around the accident locus”.
In paragraph 18 of the Particulars of Claim it was pleaded that “the Defendants (or each of them) were aware or ought to have been aware of the risk of vehicles leaving the carriageway at the accident locus at all material times; there had been accidents on the bend on inter alia 28 th October and 21 st November 2014”. These other accidents were said to have been referred to at the inquest into Mrs Brown's death.
In the defence on behalf of South West Lakes it was pleaded “the deceased did not crash through the fence on the sweeping left-hand bend but beyond it”. The incidents in 2014 were said to have been incidents in which drivers had only damaged the fence. It was stated in the defence on behalf of South West Water that “there had never before been an accident where a vehicle entered the water of the reservoir”.
There was reference to “lease and/or licence agreements” between South West Water and South West Lakes. It was pleaded that South West Lakes and South West Water were responsible for the construction and maintenance of the wire fencing enclosing the reservoir.
So far as the highway authority is concerned it was pleaded in the Particulars of Claim that the council “was responsible for the construction and/or design of the physical road and its surrounds which forms the material section of the highway”. It was also pleaded that it was the council who had installed the vehicle restraint barrier erected after the accident.
In the Particulars of Claim it was stated that in 2018 a vehicle restraint barrier on both sides of the highway was installed where the accident occurred. In the council's defence it was pleaded that a vehicle restraint barrier was installed in about May 2019, but that installation did not mean that there was a legal duty to instal it.
The particulars of negligence and breach of statutory duty pleaded against the council included: “(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 …”; “(d) 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 “(e) 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”.
The council's defence 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 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 applications and evidence
The applications to strike out the Particulars of Claim and for reverse summary judgment were supported by formal witness statements from legal representatives on behalf of each of the defendants. No witness evidence was adduced on behalf of the claimants. There were photographs of the accident site exhibited to a Skeleton Argument below, which the parties agreed that this court could consider, and these photographs showed that the car had travelled round the bend and had then gone through the fence part way along the road after the bend.
The formal witness statements in support of the application for reverse summary judgment did not contain any relevant evidence in the form of the police investigation report, notes from the inquest or even Memorandum No. 780 – Design of Roads in Rural Areas. This meant that although the application for reverse summary judgment was formally before the court below, that application did not in practice add anything to the application to strike out the Particulars of Claim, save where the parties had agreed certain factual matters asserted in the defences and recorded by the judge below.
The judgment below
The hearing took place before the judge on 18 January 2021 and the judge handed down a written judgment dated 17 February 2021.
The judge introduced the parties and set out the relevant tests for striking out a statement of case and for granting summary judgment in paragraphs 1 to 5 of the judgment. These tests were common ground before the judge and before this court. The judge summarised the pleaded case in paragraph 6 of the judgment and recorded “for the purpose of this hearing, it was accepted by all concerned that the responsibility of the highway authority was for the carriageway and the verge up to the fence, and the [First and Second] Defendants were the occupiers of the reservoir and the verge between it and the fence”.
The judge recorded in paragraph 7 of the judgment that South West Lakes only came into existence in 2000, no one disputed South West Water's admission that it constructed the wire fence, and the reservoir was constructed in or around 1967 and at the same time the highway was re-aligned.
The judge stated that the claimants alleged that South West Lakes and South West Water were negligent at common law and in breach of duties under the Occupiers' Liability Acts of 1957 and 1984. The judge also recorded that the claimants alleged that the council were negligent at common law, acted in breach of statutory duty under the Highways Acts of 1959 and 1980 and in breach of...
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