The Court of Appeal rules that council is liable in case where driver lost control upon mounting an uneven grass verge

In the recent case of West Sussex County Council v Russell [2010] EWCA Civ 71, the Court of Appeal ruled that the local council was primarily liable for a driver’s injuries after she came off the highway and hit a tree while driving in icy conditions.

The respondent in the appeal was driving her son to school when she lost control and collided with the tree. The judge at first instance found that the respondent was driving at around 45mph, which she accepted was too fast, given that there was a frost and probably black ice on the road.

The respondent skidded from the road onto the grass verge and lost control. The ‘drop-off’ between the verge and the carriageway was found to be around six inches.

A road traffic collision unit officer was of the opinion that the difference in height between the carriageway and the verge was significant enough to be a hazard. Road safety experts instructed by both parties were in agreement.

A couple of years before the incident, the council had carried out works on the verge and raised it to the same level as the carriageway. A few weeks after the accident, the council again raised the level of the verge to roughly the same level as the carriageway, and put posts on the verge to stop people parking on it. The council accepted that the verge formed part of the highway for the purposes of the Highways Act.

The judge at first instance held that the council owed a duty under section 41(1) of the Highways Act to maintain the highway properly. The judge rejected the section 58 defence that the verge was only a danger to people, like the respondent, who were driving at excessive speed in dangerous conditions. The council argued that the duty should not be so high as to protect drivers who drive dangerously and lose control.

The judge at first instance found the council liable but made a 50% reduction of damages for contributory negligence. The council appealed on the basis that the first-instance judge had not actually found a breach of the duty.

Section 41(1) of the Highways Act raises two questions, and the first-instance judge had only answered one (whether the relevant area was part of the highway). The judge had not considered whether the highway authority had failed to maintain the highway. The judge had addressed at length the relevant law and referred to the expert, who found the verge to be a hazard, and it was clear that he had held the highway authority to be in breach of its obligation under section 41(1).

The works undertaken by the council in raising the level of the verges to the level of the carriageway, both before and after the accident, demonstrated acceptance that the levels should have been roughly the same. The highway had failed to prove for the purposes of section 58(1) that it had taken such care as was reasonably required to ensure that the road was safe.

An interesting point to note is that the Court of Appeal commented that cases such as this do turn heavily on the facts. In this case, it seems that the council was found to have known that the defect in the levels was likely to be a danger, otherwise they would not have taken action to level out the difference, both before and after the accident.

Helen Brown is a partner and head of the public sector unit at Langleys.