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Council defeats Court of Appeal challenge over road accident and vegetation

Appeal judges have refused to create a duty of care with “potentially serious and costly consequences for very little practical gain” in a case over whether overgrown vegetation contributed to a road accident.

Barristers’ chambers 1 Chancery Lane, whose Andrew Warnock QC represented highway authority Denbighshire County Council in Sumner v Colborne & Ors [2018] EWCA Civ 1006, said the ruling meant: “A landowner does not owe a duty of care to ensure that vegetation contained on his land does not interfere with sight lines on the highway.”

The claim was brought by motorist Michael Colborne who had emerged from a minor road onto a trunk road and collided with cyclist Roy Sumner, causing him serious injuries.

Mr Sumner sued Mr Colborne, who argued he could not have avoided the accident because vegetation on land owned by the Welsh Government and maintained by Denbighshire blocked his view.

Judge Sir Stephen Richards said the main issue was whether the council and the Welsh ministers owed highway users a duty of care for vegetation on the land at the junction but not on the highway.

He said: “It is notable that the claimant himself has not claimed against the council or the Welsh Ministers: that claim has been brought only by the insured defendant.

“One may add that if a duty of care were found to exist in the present case, it would be liable to encourage a marked growth in claims by drivers' insurers for contributions from owners of land adjacent to the highway in cases where visibility was an issue (and such owners would not necessarily have public liability insurance) and a marked growth in the business of providing expert advice to landowners on the implications of vegetation and structures on their land for visibility on the adjoining road network.

“These are potentially serious and costly consequences for very little practical gain.”

The factors militating against the existence of such a duty of care “are in my view very powerful”, he added.

Any such duty would have profound effects on landowners, the judge said, for example, “farmers would need to consider visibility on the highway when deciding where to plant crops, hedges and trees, and when to harvest, prune or fell them. Similar issues would arise in relation, for example, to the planting of shrubs, hedges or trees in urban and suburban gardens”.

The principle could even extend to buildings and fences that might affect visibility on the highway.

“Planning controls and the powers of highway authorities provide a range of public law powers for dealing with these matters in appropriate cases,” he said.

“The court should be slow to supplement them by way of an onerous duty of care in private law.”

Mark Smulian