Hodges v Somerset County Council
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE HALLETT |
| Judgment Date | 09 April 2003 |
| Judgment citation (vLex) | [2003] EWHC J0409-2 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CASE NO: U20030l05/BS250285 |
| Date | 09 April 2003 |
[2003] EWHC J0409-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL CROWN COURT
The Law Courts,
Small Street,
BRISTOL
The Honoupable Mrs Justice Hallett
CASE NO: U20030l05/BS250285
MR M TILLETT QC and MISS R DENNIS appeared on behalf of the claimants
MR G BROWN appeared on behalf of the defendants
JUDGMENT as APPROVED
On Bank Holiday Monday, 4 May 1998, the claimant, Steven Hodges, then a serving police officer, set off with a group of friends to travel from Corston near Bath to Minehead. It was a bright sunny day. The group, aged in their late 20s or 30s, left Mr Hodges's home at about midday. He was riding his 750cc Suzuki motorcycle, described as a 'high performance sports bike'. He was an experienced motorcyclist as, indeed, were his friends. Mr Hodges had his then wife, Claire, the second claimant, as a pillion passenger. Both Mr John Gregory and Mr Andrew Caesar had their then girlfriends riding pillion. Paul Everett, another police officer, and John Caesar were riding their motorcycles alone.
The group intended to ride along the A39 to the coast to spend a couple of hours in Minehead and then return. They all said there was no particular hurry, save for Andrew Caesar who mentioned that they wished to get back to Bath to hear a band play some time during the afternoon.
As they rode alone the A39, passing on their left an unclassified road known as Vinnecombe Lane near the village of West Quantockshead Mr Hodges lost control of his motorcycle on a bend. Both he and his wife were thrown from the bike. Sadly, Mr Hodges himself was injured very seriously and is now paraplegic, in a wheelchair and unable to continue his employment as a police officer.
Mr Hodges and his friends are insistent that the cause of the accident was water flowing down Vinnecombe Lane and on to the A39. They claim the water brought with it grit or shingle which they described as a lethal combination for motorcyclists. It was, they say, the presence of the water and the grit together which caused Mr Hodges's tyre, or tyres, to lose their grip on the road. There is no dispute that there was water on the highway; the extent of it, however, and the amount of shingle or grit carried with it, is very much in dispute.
The first defendant is, and was at all material times, the highway authority responsible for the repair and maintenance of the A39, particularly at its junction with Vinnecombe Lane. The actions against the second defendants, Wessex Water Services Limited, and the third defendants, the Bath and Wells Diocesan Board of Finance, owners of the neighbouring land, have been discontinued.
At its junction with Vinnecombe Lane, the A39 Bridgwater to Minehead road is an undivided carriageway with one traffic lane in each direction. Each lane is separated by a central hazard line of long lines and short gaps throughout the relevant section. Vinnecombe Lane leads to Vinnecombe Cottage, occupied by a Dr Drucker, also to the Old Rectory, a residential home; and then, further up the Lane, to Wessex Water's service reservoirs. The reservoirs and the lane lie towards the lower part of a coombe that is a natural drainage feature located at the north-western extremity of the Quantock hills.
The lane runs steeply downhill from south to north towards the A39. Underneath, there is a main drain that discharges freely into a small natural channel through some fields to the south of the A39 just below the Old Rectory. At the junction with the A39, there are three grated gullies; one on what I will call the eastern side and two on the western side. Almost directly opposite Vinnecombe Lane but slightly offset there is another unclassified road leading to a church.
The bend around which Mr Hodges was travelling was described by Mr Brett, a member of the Institute of Traffic Accident Investigators, as "A moderate right-hand bend … which tightens quite quickly and becomes a moderate to moderate plus type bend". On Mr Hodges's left as he went around the bend there was a line of trees followed by a hedge leading to the Windmill Inn public house.
The claimant's case is that it was generally known to those living in the area, and to the defendants' employees, for many years prior to the accident that water flowed down Vinnecombe Lane and on to the A3It was bound to bring with it, given the nature of the lane, shingle of gravel. Accordingly, the claimants allege that the first defendants' employees ought to have realised that this water was likely to constitute a danger to users of the A39.
The claim against the first defendant, Somerset County Council, is pleaded in negligence and/or for breach of statutory duty, inter alia, for failing effectively to drain or channel surface water at the junction so that it did not create a danger for vehicles using the A39, and/or for failing to site or maintain drainage gullies at the junction of the lane and the A39 properly, so that water flowing down the lane did not cross the A39.
The first defendant denies primary liability to the claimants and further relies upon the statutory defence provided by section 58 of the Highways Act 1980. The defendant also alleges that the first claimant was E author of his own and his wife's misfortune and that he was contributory negligent in riding too fast and/or failing to keep a proper look out.
The following are the principal issues:
(a) Was the presence of water and/or debris carried with it from the lane across the A39 a material cause of the accident?
(b) Did the first defendant owe duties at common G law or pursuant to statute to prevent that water flowing across the A39 by providing adequate or proper drainage and, if so, was it in breach of any such duty?
(c) Does the first defendant have a statutory defence to the claimants' action pursuant to section 58 of the Highways Act 1990?
(d) Was the first claimant at fault in riding his B motorcycle too fast or in failing to keep a proper look out?
The drainage experts, Professor Butler and Mr Simcox, decided that the Wessex Water reservoirs were not a likely source of the water on this occasion. They agreed there had been little or no rainfall at the site in the days prior to the accident and that storm run-off would not have been a significant contributor to the flow of water at the time of the accident. They further agree that the major source of the flow of water on the day of the accident would have been spring flow. They did not agree on a precise flow rate. Mr Simcox believes it would have been a few litres per second; Professor Butler believes it would have been a bit higher, given the fact there had been an unusually wet couple of months preceding the accident.
The experts agreed that the condition of the lane and the siting of the gullies made the collection of surface water in the lane generally ineffective, particularly when there is heavy, prolonged rainfall. The number of gullies on the lane was said to be inadequate, they were generally poorly sited and the lane surface was not shaped to direct water towards the gullies. The experts disagreed on whether the gully on what I call the eastern side was poorly sited. Professor Butler wanted it further up the lane and, he said, better placed to intercept the flow of water.
Since the accident somebody has resurfaced the lower part of the lane, which has increased the cross-fall of the road so that water is now better directed towards the gullies. This has, therefore, improved their performance. Mr Morgan, employed as the manager at the Old Rectory, said that in the summer of 1998 he dug a pipe underground to divert the water. Dr Drucker commissioned similar work, namely the construction of a pipe to divert water away from the culvert in the lane to the drainage system in his garden. This has helped keep water from the lane, save for when there is a large scale run-off from a storm. Dr Drucker said that someone from the Old Rectory was also responsible for paving the lower section of the lane at the end of 1998.
The experts came up with a number of proposed works which could improve the position still further. There were nine in all, ranging in cost from £1,000 to £30,000. Mr Brown, on behalf of the defendants, reminded me that the sum of, for example, £1,000 may not seem very large in itself but when multiplied by the hundreds of junctions in the highway authority's care the expenditure involved carrying out works of this kind could be very considerable indeed.
There can be no doubt that water ran down Vinnecombe Lane sporadically over the years. It was worse, not surprisingly, after periods of heavy rain. The cause of the water flow probably varied. It could, on occasions, have come from the reservoirs, from spring flow or from storm run-off. Sometimes blocked drains or gullies may not have helped matters. I have no doubt that the residents of Vinnecombe Lane became exceedingly irritated by the repeated flow of water which interfered with their proper enjoyment of the lane.
Unfortunately, none of the owners or occupiers of the land seems to have taken proper responsibility for the maintenance of the lane, save in a somewhat haphazard fashion. Their actions may have improved the surface of the lane, but they seem to have made the water problem worse.
Dr Drucker and Mr Morgan, from the Old Rectory, blame the defendants, amongst others, for the problem. Mr Morgan said that he became concerned about the water on the lane in 1994 and between then and 1998 he liaised by telephone with what he called 'various departments', including the local council, the Water...
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