In 2010 two cases in the Court of Appeal clarified the nature of the duty owed by Highway Authorities in respect of the road structure in the broadest sense. In the first, Yetkin v London Borough of Newham  EWCA Civ 776 the Court dealt with the nature and extent of the common law duty on a highway authority. The duty was broadened or at least broadened from what many had understood the position to be following the House of Lords judgment in Gorringe v Calderdale Metropolitan Borough Council  1 WLR 1057. In the second, Valentine v Transport for London and London Borough of Hounslow  EWCA Civ 1358 the Court re-affirmed the extent of a Highway Authority’s duty under section 41 of the Highways Act 1980. The section did not impose liability on the authority to clear loose material on the road surface. Prior to this decision there was a perception that a highway authority did, or at least could be argued, to owe such a duty. It is of note that the Court of Appeal was willing to consider resources as a factor when dealing with the statutory duty but not the common law duty.
In Yetkin the pedestrian claimant was injured while using a traffic light controlled pedestrian crossing on Stratford High Street. The crossing consisted of a central island between the two carriageways. Pedestrians used traffic lights, activated by buttons, to cross one carriageway to the island and then were filtered along the island, to a second set of lights, to cross the further carriageway. Mrs. Yetkin was badly injured when crossing the southbound carriageway. She stepped off the island and was hit by a car in the outside lane. Her primary case was against the driver, whom she alleged, had driven through a red light.
To one end of the island was a raised flowerbed installed by the council. At the time of the accident the plants in the flowerbed were overgrown. The claimant’s secondary case was that these plants obscured her view of approaching traffic, and the traffic’s view of her, when she was crossing the southbound lane from the island. She blamed the council for this, alleging that they were in part responsible for the accident as she and driver had had to rely solely on the traffic lights.
The trial judge found that the claimant and not the driver had crossed against the lights. He also found that the bushes did obscure the view and that they had made a material contribution to the accident. Nonetheless he did not find the council liable. Relying on the comments of Lord Hoffman and Lord Brown in Gorringe he found that before the council could be liable for the admitted positive acts of erecting the flowerbed and failing to keep the plants cut back, the claimant needed to show that the danger constituted a trap, which would endanger a prudent road user, rather than simply a foreseeable risk of injury. This position, argued by the council and accepted by judge, was certainly perceived by some to be the state of the law. A number of Particulars of Claim included complaints that a highway authority that particular aspects of road construction created a trap.
The claimant appealed. She contended that the where a danger was created by the positive act of highway authority, a common law duty of care arose where that danger gave rise to a foreseeable risk of injury. It was not necessary to establish that the danger would constitute a trap to a reasonable and prudent motorist. Lady Justice Smith, who gave the single judgment of the Court of Appeal, agreed. She held that the comments of both Lord Hoffman and Lord Brown in Gorringe related not to a positive act by a highway authority but to circumstances where the authority was blamed for a danger that arose because of its inaction.
In the court of appeal the council accepted that the comments from Gorringe, which it relied upon, were obiter. Nonetheless it argued that they were persuasive. While Lord Hoffman’s comments could be interpreted in the manner adopted by the Court of Appeal this could not apply to the comments of Lord Brown, whose use of language the Court of Appeal described as “perhaps unfortunate” and merely “colourful.
At paragraph 102 of his judgment Lord Brown held;
102 – What I have said thus far is in the context of road accidents involving negligence on the part of at least one of the road users involved. But that is because I find it difficult to contemplate a case in which a road accident could occur without such negligence unless either a) it results from the physical state of the road (in which case, as already explained, liability will in any event rest upon the Highway Authority), or b) the Highway Authority will, irrespective of any particular statutory power or duty, be liable in a conventional common law negligence action for having enticed the motorist to his fate by some positive act. Assuming that the road user is not to be regarded as negligent, he must inevitably have been misled into ignoring whatever danger precipitated his accident. Although motorists are not entitled to be forewarned of the ordinary hazards of highway use, plainly they must not be trapped into danger. If, for example, an authority were to signal a one−way street but omit to put No Entry signs at the other end, it might well be found liable, not because of any statutory power or duty to erect such signs but rather because it induced a perfectly careful motorist into the path of danger. Or assume road markings indicating where it is safe to overtake and where it is not and that by some crass mistake in the painting of these a motorist were to be ensnared into the path of an oncoming vehicle previously hidden in a blind spot ahead. That too would suggest to me misfeasance of the kind traditionally attracting tortious liability without the need to look for some statutory power or duty as its foundation. Such cases, however, may be expected to be few and far between and I would certainly not regard Bird v Pearce  RTR 369 as one of them: the suggestion there that the highway authority itself created the danger appears to me irreconcilable with the conclusion that one of the drivers was himself two−thirds to blame for the collision.
In Yetkin the Court of Appeal cited the first part of this passage ending with the comment that “motorists must not be trapped into danger”. They did not go on to cite the illustrations, which clearly indicates that what Lord Brown was considering was a positive act by a highway authority not a failure to act.
The court of appeal’s analysis creates two problems. First if correct, a highway authority may now be liable for a trap created by their inaction. Secondly, and more problematically, it may now be liable to careless motorists. Applying the reasoning to the facts of Yetkin had the judge found the motorist rather than the claimant had shot the lights, the council would have been liable to contribute to the damages that were in effect to be paid by the insurer. However, whether right or wrong this is now the law, and at least potentially, it greatly increases the burden on placed on highway authorities.
By comparison in Valentine the Court of Appeal recognised and took into account the limited nature of the resources of a highway authority. The case involved a fatal accidents claim. Mr. Valentine was a motorcyclist. He was exiting a car park off the A4, the Great West Road, at Brentford. He used a slip road. The slip road crossed a cycle track and bisected a raised pavement before it reached the A4. Most unfortunately for Mr. Valentine there was loose gravel and debris on parts of the surface of the slip road. As he accelerated to joint the A4 his back wheel skidded in this debris and he fell from his motorcycle. The fall was not a speed and at the time he did not appear to be injured. Tragically, that evening, he developed a cerebral aneurism, which proved fatal.
The highway authority was Transport for London. The widow Mrs. Valentine sued TfL. She alleged that the presence of loose gravel and debris on the road surface was a breach of its duty to repair under section 41 of the Highways Act 1980. TfL applied to strike out the allegation. It succeeded at first instance and the claimant appealed. The Court of Appeal dismissed the appeal. It held that the statutory duty under section 41 was did not extend to the removal of, “surface lying material”.
Lord Justice Hughes gave the leading judgment. He based his decision on two factors. First, earlier authority made it plain that the duty to maintain in section 41 applied only to the structure and fabric of the road, and second, the duty was an absolute one and to extend it in the way contended for by the claimant would place an unnecessary burden on highway authorities.
The two earlier cases relied upon by Lord Justice Hughes were Haydon v Kent CC  1 QB 34 and Goodes v East Sussex CC  1 WLR 1356. In the first Lord Denning and in the second Lord Hoffman had made it clear that section 41 re-enacted the original common law position, which was that the parish councils duty (now inherited by a highway authority under the Act) was limited to maintaining the fabric of the road.
This position was clear from the nature of the duty enacted. Section 41 imposes an absolute duty on a highway authority and this was onerous. The extent of the absolute duty and so the burden which it placed upon local authorities was not mitigated by the statutory defence under section 58 of the Act. This related to private law claims for damages but the absolute duty could be enforced by both judicial review and a complaint to a criminal court. Lord Justice Hughes observed, “In many ways the greater consequence is the burden which falls upon the highway authority, and through it upon the taxpayer, to comply with the absolute duty”. In argument he was clearly concerned by the extent of the costs that a highway authority would meet if it were to try and discharge an absolute duty of this kind.
If the absolute duty were to encompass an obligation to remove surface lying material it would place an impossible burden on the highway authority and so the taxpayer. Lord Justice Hughes held that, “If the duty to maintain applied to the removal of grit on the road, it would also have to apply to oil slippage, landslip, mud, trees etc, and to rural footpaths as to motorways”. The situation might have been different had Parliament chosen to enact a duty limited to the exercise of reasonable care. It had not, and in these circumstances, because of the resources implications, it would be wrong to extend the duty.
When considering the approach of the court of appeal in these two cases there is, it is suggested, some consistency. The court is willing to consider a wider duty where there is a fact-finding control mechanism. The application of the reasonable care test, whether in statute or common law, allows a court to keep control by adjudicating on the facts. In comparison, where either the common law duty or an absolute statutory duty would restrict a court’s ability to make findings such a duty has been rejected.