Yetkin v Newham Borough Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lady Justice Black,Lord Justice Laws |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] EWCA Civ 776 |
| Docket Number | Case No: B3/2009/2735 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 2010 |
[2010] EWCA Civ 776
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CIVIL JUSTICE CENTRE
His Honour Judge Hegarty QC
(Sitting as a Deputy High Court Judge)
Before: Lord Justice Laws
Lady Justice Smith
and
Lady Justice Black
Case No: B3/2009/2735
HQ08X01989
Marc Willems (instructed by Ralli Solicitors) for the Appellant
Mr A Weitzman (instructed by Browne Jacobson) for the Respondent
Hearing date: 28 June 2010
Lady Justice Smith:
Introduction
This is an appeal from the order of HH Judge Hegarty QC, made in the Civil Justice Centre on 1 October 2009 when he dismissed the claim of Mrs Pervin Yetkin for damages for personal injuries suffered in a road traffic accident which occurred on 13 February 2004. Mrs Yetkin had been knocked over by a motor car driven by Mr Sajad Mahmood while crossing the southbound carriageway of the High Street, Stratford in the London Borough of Newham. She sued Mr Mahmood and the Local Authority as the Highway Authority. The judge dismissed her claim against both defendants but this appeal is concerned only with the judge's decision in respect of the Local Authority.
The facts
The facts were hotly disputed at the hearing below but, for the purposes of the present appeal, the facts as found by the judge are accepted. It follows that I need give only a short account of them. The High Street, Stratford is part of the A11 trunk road. At this point, it is a dual carriageway with six lanes. In each direction there is a bus lane and two lanes for other traffic. Not far from the junction with Cam Road there is a pedestrian crossing controlled by traffic lights. The crossing is effectively in two parts. Pedestrians on the pavement wishing to cross should use a button to operate the lights which will give them an opportunity to cross the first three lanes to the central reservation. On arrival there, they must move a few feet to their left and press another button which will operate the traffic lights which will provide an opportunity to cross the second half of the carriageway.
The area of the central reservation which pedestrians must use while crossing the road is bounded by railings, save for the sections by which they arrive and leave. That area is colloquially known by the police as a ‘sheep pen’; as the name implies, the railings are designed to restrict the movement of pedestrians so that they must cross by the designated route. At the time of the accident, the central reservation consisted of a raised flowerbed which the Local Authority had planted with shrubs, bushes and plants of different shapes and sizes. Photographs taken by the police shortly after Mrs Yetkin's accident show that the shrubs immediately adjacent to the railings bordering the access to the southbound carriageway were thick and quite tall. The result was that a pedestrian who had reached the central reservation and wished to cross the southbound carriageway had a restricted view of the road to his or her left. In particular, that pedestrian's view of the traffic approaching from the left in the outer lane of the three (the first to be crossed) was substantially obscured.
Shortly after 9pm, Mrs Yetkin, the appellant in this court, was crossing the High Street on her way to a bingo hall. She had reached the central reservation and, so the judge found, she decided to set off across the southbound carriageway without waiting for the traffic lights to change in her favour. She was struck by Mr Mahmood's motor car which was travelling, quite properly, in the outside lane.
The judge's decision
Mrs Yetkin's primary allegation was that she had crossed the road at a time when the lights were green in her favour and red against Mr Mahmood's motor car. The judge rejected that. Her alternative submission was to allege against the local authority that the planting and/or maintenance of the shrubs had created a hazard on the highway by reason of the fact that it restricted the view of pedestrians using the crossing. The creation of that hazard amounted to a breach of the local authority's common law duty of care to her as a road user.
The judge found that the bushes seriously interfered with Mrs Yetkin's view to her left as she prepared to cross the southbound carriageway. Further, he held that the bushes played a significant part in the events leading to the accident and that, if they had not impeded her view, Mrs Yetkin would probably not have stepped out into the road when she did. The judge noted that the Council had called no evidence and he inferred that it was responsible for creating a state of affairs which had significantly contributed to the occurrence of the accident.
Those holdings are not challenged in this appeal. Notwithstanding the holdings he had made in respect of the condition and effect of the bushes, the judge was persuaded that the claim against the local authority must be dismissed because it did not owe a duty of care to pedestrians such as Mrs Yetkin. It is that issue which lies at the heart of this appeal. The judge gave permission to appeal to this court. In the event that the proposed appeal might succeed, he expressed his opinion on the issue of contributory negligence. On the findings of fact that he had made, it was obvious that Mrs Yetkin was substantially to blame for what had happened. The judge assessed her share of the blame at 75%. The appellant contends that that assessment was too severe on Mrs Yetkin. I gave permission to appeal on that issue.
The judge's reasoning
In seeking to persuade the judge that the local authority did not owe the claimant a duty of care, Mr Weitzman for the local authority relied mainly on Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, [2004] UKHL 15. In that case, the claimant had been injured when she drove her car into collision with an oncoming vehicle near the crest of a hill. She had been driving too fast for safety. Her case against the local authority was that it should have provided a warning to motorists to ‘go slow’ because of the approaching hazard. The authority had a statutory power and a public law duty to take steps to promote road safety, pursuant to section 39(2) of the Road Traffic Act 1988. It was contended for the claimant that that statutory power and public law duty gave rise to a parallel common law duty of care to take appropriate road safety measures and that this would have included the provision of a warning at the accident site. The House of Lords unanimously rejected that proposition.
Mr Weitzman did not suggest to the judge that the present case was on all fours with Gorringe. He accepted that, whereas in Gorringe the complaint was that the highway authority had failed to exercise its statutory powers, in the present case, the complaint was that the local authority had exercised its powers but had done so negligently, thereby creating a danger for pedestrians using the crossing. So this case was different from Gorringe. However, Mr Weitzman relied upon certain passages from the speeches of Lord Hoffmann and Lord Brown of Eaton-under-Heywood which he claimed supported his contention that the common law duty of care owed by a highway authority towards road users, not to create a hazard on the road, is governed by special limitations, not to be found elsewhere in the common law tort of negligence. There were two such limitations, he submitted. First, the highway authority's duty of care arose only if it created a foreseeable risk of injury to the reasonably careful, prudent road user; it owed no duty whatsoever to careless or negligent road users. Second, its duty 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’.
The judge below accepted those two submissions. Before doing so, at paragraph 129, he set out the premise on which he was proceeding:
“I proceed, therefore, on the footing that it remains good law that where a Highway Authority, in the exercise of its statutory powers and duties, creates a danger to users of the highway which would not otherwise have been present, it may well be held to owe a duty of care to any users of the highway who suffer damage by reason of the danger in question.”
So it appears that the judge had well in mind that he was dealing with the duty in respect of positive acts and not with a mere failure to act.
The judge then mentioned a passage from paragraph 102 of Lord Brown's speech in Gorringe and cited a long passage from paragraphs 35 and 36 of Lord Hoffmann's, both of which he thought supported Mr Weitzman's submissions and to both of which I will return in due course. At paragraph 132, he considered Mr Weitzman's submission that, whether the judge were to find that it was Mr Mahmood or Mrs Yetkin who had failed to comply with the traffic signals, any danger created by the bushes should have been obvious to a careful road user, whether driver or pedestrian. In that sense, therefore, the bushes were not a ‘trap’. Further, if it had been Mr Mahmood who had caused the accident by driving through over the crossing while the lights were red against him, there would be no policy justification in imposing an additional duty of care on the local authority. Also, if Mrs Yetkin attempted to cross when it was unsafe, the law would not impose a duty on the local authority to protect her against her own carelessness.
At paragraph 133, the judge accepted Mr Weitzman's...
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