Russell v West Sussex County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Mr Justice Henderson,Lady Justice Arden |
| Judgment Date | 12 February 2010 |
| Neutral Citation | [2010] EWCA Civ 71 |
| Date | 12 February 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2009/0826 |
[2010] EWCA Civ 71
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
H.H.J. McMULLEN, sitting as a deputy judge of the Division
Before: Lady Justice Arden
Lord Justice Wilson
and
Mr Justice Henderson
Case No: B3/2009/0826
LOWER COURT NO: HQ07X00585
MR EDWARD FAULKS QC and MR JOHN NORMAN (instructed by Barlow Lyde and Gilbert LLP) appeared for the Appellant.
MR DEREK SWEETING QC and MR ADAM CLEMENS (instructed by Russell-Cooke LLP) appeared for the Respondent.
Hearing date: 21 January 2010
Lord Justice Wilson:
West Sussex County Council, the defendant, appeals against an order made on 25 March 2009 by His Honour Judge McMullen QC, sitting as a deputy judge of the High Court, Queen's Bench Division, by which he entered judgment for Mrs Russell, the claimant, against it and directed that her damages be assessed, albeit subject to a 50% reduction for contributory negligence.
The defendant is the highway authority for a highway off which, on 1 March 2004, the claimant, when driving a motor car, drove into a tree and thereby suffered serious personal injuries. She sued the defendant for a failure to maintain the highway under s.41(1) of the Highways Act 1980. The judge held, or rather (such being an issue in the appeal) may have held, that the defendant had failed to “maintain” the highway within the meaning given by law to that verb in the subsection. At all events he turned to consider the defence made available to a highway authority by s.58(1) of the Act, which requires it to prove that it has taken all such care as was reasonably required to secure that the relevant part of the highway was not dangerous for traffic. The judge held that the defendant had failed to establish that defence. Accordingly, subject to the finding of contributory negligence to which I have referred, he entered judgment for the claimant.
The defendant appeals on the primary basis that either the judge did not hold it to be in breach of s.41(1) or, if he did, he was wrong to do so. The secondary basis of the appeal is that he should not have rejected its defence under s.58(1). In either event, says the defendant, it should therefore not have been held liable to the claimant at all. Its tertiary, fall-back, position is that he should have set the level of the claimant's contributory negligence at substantially higher than 50%. The claimant cross-appeals on the basis that the judge set the level of her contributory negligence too high and should have set it at only 20%. Neither party challenges the judge's primary findings of fact.
On the date of the accident the claimant was aged 48 and lived in Ockley, a village which lies south of Dorking, with her husband and teenage son. At the time of the accident she was driving her son to school in Lancing. The journey takes about 40 minutes. She drove her VW Golf TDi motorcar. Her son was in the front passenger seat. Ockley lies on the A29 road which runs from north to south as far as Bognor Regis. The claimant's preferred route was to take the A29 southwards for about four miles and then, where the A29 intercepts with the A281, which runs west/ east, to turn left, go east for a bit and then drive on down to the coast. The accident occurred on the A29, about three miles south of Ockley and shortly before the intersection to which I have referred.
It was a frosty morning. As she waited for her son to get ready, the claimant ran the engine of the car in order to heat it and so to defrost the windows. They set off at about 7:45am. As it stretches south towards the intersection the A29 is a relatively straight road and, at that time of the morning, not much traffic goes south but a certain amount, heading no doubt for London, goes north. In the event no other motorcar was involved in the accident. During the few seconds of its sequence, no other car travelling south was either visible in front of the claimant or able to see her car from behind and there was no car travelling north within her sight or within sight of her.
At the point at which the sequence of the claimant's accident began, the road bends slightly to the left but not so as to reduce good visibility. The defendant had resurfaced the carriageway in about October 2001 and, apart from the condition of the verge and in particular from the difference in height (known as the “drop-off”) between the carriageway and the verge on the claimant's left-hand side, the road was in good condition. It had white lines to demarcate the middle of the road, some continuous and some dotted; and there were continuous white lines on each side of the carriageway, intended to indicate to drivers that they should keep on the carriageway within the lines. At the point at which the accident occurred the width of the entire tarmac carriageway was 6.2m and the width between the white lines on each side of the road was 5.6m. The judge observed that, were a car to be driven down the centre of the carriageway, it had about 0.5m to spare before it went into the verge. On any view the road was fairly narrow by A road standards and there was only a small width of carriageway outside the white lines.
Underneath the road at this point and crossing it from west to east is a river. Thus the road acts as a bridge over it. But no incline and accordingly no decline are necessary for the road to act as a bridge. The road-user would realise that he was travelling over a bridge only because of the existence of two brick parapets, built fairly low, on either side of the road, well set back from the road on the far side of the verges.
When in October 2001 it relaid the carriageway with tarmac, the defendant applied topsoil to the verges which brought their level approximately up to the level of the carriageway. But anglers fish that river; and it was their practice prior to the accident for them to park their cars on the verge, in particular (so it would appear) on the eastern side of the road, from just north of, to just south of, the bridge. It was not, of course, an authorised lay-by. Indeed the continuous white line on the sides of the carriageway is intended to indicate to drivers not to cross it. But it is the practice of local authorities sometimes to tolerate the unauthorised use of verges as lay-bys for fear that, if precluded from parking there, motorists will park more dangerously elsewhere.
The fact is that, between October 2001 and March 2004, the level of the eastern verge sank both by the bridge and to the point south of it where the claimant collided with the tree. The sinking was probably accentuated by the use of the verge by anglers as a place to park their cars. About an hour after the accident (which probably occurred at about 7:53am), P.S. O'Neill (who had become a sergeant by the time when he gave his evidence to the judge) conducted a survey of that part of the eastern verge, and in particular of the height of the drop-off between the carriageway and the verge; he found that its height was variable but measured between four inches minimum to up to one foot maximum and that, while in parts the drop-off sloped or was (to use his word) chamfered, in others it was sheer.
The judge found that, at the time when the sequence of the accident began, the claimant was driving at about 45mph. Although she had left Ockley and was thus outside the 30 mph restriction which protects it and although she was driving down a rural road in relation to which the maximum permitted speed was 60mph, she was (as was accepted on her behalf) driving too fast in circumstances in which, as she knew, there had been on that morning a hoar frost or (as it was also described) ice dew. The judge found that, at the time of the accident, the ambient temperature was about 0°. The claimant's expert, Mr Runacres, being a principal consultant to the Transport Research Laboratory and a distinguished expert in matters of road safety, explained that, when a car runs over hoar frost on a road, its tyres often melt it, whereupon – at such a temperature or lower – the water refreezes and forms black ice. The claimant probably skidded on black ice. She skidded somewhat to her left and her nearside front wheel – or both her nearside wheels – left the carriageway and (so the judge found) dropped down on to the edge of the verge, upon which it – or they – momentarily bumped along.
P.S. O'Neill found scuff marks on the inside of both of the claimant's nearside tyres. It was agreed between Mr Runacres and one of the defendant's experts that the scuff marks indicated that the nearside wheels of the claimant's car had indeed dropped down off the carriageway and that the inside of the tyres had become scuffed by rotating hard against the drop-off. Nothing turns on the fact that the judge found that “at least … the front nearside wheel” had dropped off, he apparently being less clear that the rear such wheel had also done so. How high was the drop-off at the point where the wheel or wheels had dropped? The experts were agreed that, notwithstanding the sergeant's maximum measurement, the drop-off could not, at the relevant point, have been as much as a foot because the under-carriage of the car would have precluded its nearside wheels from running upright and hard against the drop-off if they had been as much as a foot lower than the offside wheels. In the event the judge found that, at the point when the sequence of the accident began, the height of...
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