The claimant was a cyclist who was involved in a collision with a car at a road junction. The claimant issued proceedings in negligence against the driver of the car. The driver denied liability, claiming that visibility at the junction was severely restricted by the presence of vegetation on a fenced-off parcel of land bordering the roads, for which the local authority and Welsh Government were responsible as highway authorities. The Welsh Government also owned the parcel of land at the junction, which it had acquired in order to carry out improvement works. The defendant began Part 20 proceedings against the two authorities, alleging negligence and/or breach of statutory duty, submitting, inter alia, that, applying Yetkin v Mahmood [2001] QB 827, the Part 20 defendants were liable for having created a danger to highway users by changing the layout of the land at the junction in such a way as to allow vegetation to grow and obstruct visibility unless properly maintained. The Part 20 defendants applied for the claim against them to be struck out and/or for summary judgment in their favour. The judge struck out the claim against each of them and gave summary judgment in their favour, holding: (i) that the duty of care to highway users, namely to secure the cutting back of shrubs that obstructed the highway or interfered with the view of drivers, was limited to the creation of dangers on the highway and did not apply to land adjacent to it; and (ii) that it was not the case that the Part 20 defendants were nevertheless liable because the vegetation projected on to the highway, and the fact was that the very small amounts on or over the highway, as shown in photographs produced to the court, had not caused the obstruction complained of.
On the defendant’s appeal—
Held, appeal dismissed. First, the judge was right to find that authority did not establish that there was a duty of care founding a claim in negligence in a case such as the present involving the creation of dangers adjacent to the highway rather than on the highway. It thus fell to the court to determine whether, applying the incremental approach, a duty of care should be recognised in this novel situation; and the conclusion was that it should not. Accordingly, the Part 20 defendants were under no relevant duty of care. Secondly, the judge was entitled, on the basis of photographs before him, to hold that there was no real prospect of the defendant showing that it was the very small amount of vegetation that was on or over the highway, rather than the general dense vegetation that was on the second Part 20 defendant’s land, that was the cause of the applicable obstruction (paras 20, 24, 29, 31, 36, 38–39, 40).
Tim Horlock QC (instructed by Horwich Farrelly Solicitors) for the defendant.
Andrew Warnock QC (instructed by Weightmans llp) for Denbighshire County Council, first Part 20 defendant.
Lloyd Williams QC and Nicholas David Jones (instructed by Blake Morgan llp) for the Welsh Ministers, second Part 20 defendant
The claimant did not appear and was not represented.