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MS v Leicestershire County Council, Leicester County Court, HHJ Hedley

5th Nov, 2018 / Legal & Law Firm, News

The defendant highway authority had no liability to the claimant in negligence in respect of a warning sign that she alleged was obscured by foliage.

Summary

The defendant highway authority had no liability to the claimant in negligence in respect of a warning sign that she alleged was obscured by foliage.

Facts

The claimant cyclist was unfortunately injured when she fell from her bike after cycling through a ford across the highway. She alleged breach of section 41 of the Highways Act 1980 (the Act) due to the presence of algae and moss on the highway. She also alleged negligence on the basis that the sign warning of the ford was obscured by the growth of the adjacent hedgerow.

In this regard, the claimant’s case was that, having erected the sign, the highway authority had a duty to ensure it remained visible. The sign read, ‘Ford, Cyclists dismount, slippery surface’. The defendant denied liability as a matter of law. Further, it contended both that it had a suitable inspection regime for the location and that a post-accident inspection showed that the sign was not in fact obscured.

Judgment

The claim was dismissed. The claimant correctly abandoned her claim under the Act on the basis that the presence of algae/moss on the highway could not amount to a breach of s.41 (see Rollinson v Dudley MBC [2015]). The claim in negligence was similarly flawed. The allegation that by installing the sign the highway authority assumed a duty to highway users to prevent it becoming obscured was misconceived.

The case was on all fours with the well-known decision of the House of Lords in Gorringe v Calderdale [2004] in which it was held that a highway authority did not have a duty to maintain and re-paint a ‘slow’ warning on the highway surface. Further, it could not sensibly be argued that the sign itself introduced a new danger to the highway. In any event, based on photographs taken by a highway inspector one month after the accident, the judge held that the sign was not in fact obscured.

Comment

In the context of civil liability, the statutory and common law duties of a highway authority are narrow and well-defined. The claimant’s case was effectively an attempt to deviate from established legal principles and was correctly rejected.

This is a welcome decision for highway authorities and sits neatly alongside the recent judgment of the Court of Appeal in Sumner v Colborne (Defendant) and Denbighshire CC and Welsh Ministers (Third Parties) [2018] in which it was held that a landowner owed no duty of care to a highway user in respect of vegetation on its land that impaired visibility but where the vegetation was not on or over the highway. Weightmans LLP acted for the council in this case.

If you have any questions or would like to know more about our legal update, please get in touch with your usual Weightmans contact, or Andrew Clarke (Partner).

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