The Court of Appeal in the case of Sumner v Colborne (defendant) and (1) Denbighshire County Council and (2) The Welsh Ministers (part 20 defendants) [2018] EWCA CIV 1006  have upheld a decision of the High Court striking out contribution proceedings against the part 20 defendants and have confirmed that neither the Council nor The Welsh Ministers were liable in negligence or breach of statutory duty in relation to the state of vegetation at the side of a road. The defendant Mr Colborne had contended that the vegetation had severely restricted his view and caused or contributed towards an accident whilst he was driving his car.

The circumstances of the accident are that the claimant Mr Sumner was cycling along the A494 road on 15 June 2014 when he was in collision with the defendant’s motor car as it emerged from a minor road on the claimants left hand side. Mr Sumner sustained serious injuries and issued proceedings against Mr Colborne. Mr Colborne in turn brought contribution proceedings against the Council and the Welsh Ministers who he says were the highway authority and had a duty of care in respect of the vegetation on the land at the junction where the accident happened and that impaired visibility for road users. Section 154 of the Highways Act 1980 grants power to the Council to secure the cutting back of shrubs that obstruct the highway or interfere with the view of drivers of vehicles. The Council and Ministers argued that they were under no relevant duty of care as regards the state of the vegetation on the land at the junction. The defendant had argued that the hazard existed on the land and it was reasonably foreseeable that it affected the users of the road. If the accident was found to have been the result of poor visibility at the junction and without carelessness on the part of the defendant then the claimant should recover from the party who introduced the hazard at the junction.

There are no Court authorities showing the existence of a duty of care in the circumstances which arise in this particular accident claim and so the Court had to consider afresh whether a duty of care should be recognised based on first principles. The Court decided that factors militating against the existence of a duty of care were very powerful.  Such a duty would be profound and far reaching for farmers and land owners and could possibly then even extend to the erection of buildings, fences and other structures that might affect visibility on the highway. If a duty of care were found to exist in this case then 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).

The Court agreed that the Council and Welsh Ministers were under no relevant duty of care. It would not be just fair an reasonable to find a duty of care in the circumstances of the kind that existed here.