Neutral Citation Number: [2010] EWCA Civ 776
Case No: B3/2009/2735
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE HEGARTY QC
(sitting as a Deputy High Court Judge)
HQ08X01989
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/07/2010

Before :

LORD JUSTICE LAWS
LADY JUSTICE SMITH
and
LADY JUSTICE BLACK
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Between :

	Mrs Pervin Yetkin 	Appellant	
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	London Borough of Newham	Respondent	

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Marc Willems (instructed by Ralli Solicitors) for the Appellant
Mr A Weitzman (instructed by Browne Jacobson) for the Respondent

Hearing date : 28 June 2010
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Judgment

Lady Justice Smith:
Introduction 
1.	This is an appeal from the order of HH Judge Hegarty QC, made in the Civil Justice Centre on 1 October 2009 when he dismissed the claim of Mrs Pervin Yetkin for damages for personal injuries suffered in a road traffic accident which occurred on 13 February 2004.  Mrs Yetkin had been knocked over by a motor car driven by Mr Sajad Mahmood while crossing the southbound carriageway of the High Street, Stratford in the London Borough of Newham. She sued Mr Mahmood and the Local Authority as the Highway Authority.  The judge dismissed her claim against both defendants but this appeal is concerned only with the judge’s decision in respect of the Local Authority.
The facts
2.	The facts were hotly disputed at the hearing below but, for the purposes of the present appeal, the facts as found by the judge are accepted.  It follows that I need give only a short account of them.  The High Street, Stratford is part of the A11 trunk road.  At this point, it is a dual carriageway with six lanes.  In each direction there is a bus lane and two lanes for other traffic.  Not far from the junction with Cam Road there is a pedestrian crossing controlled by traffic lights.   The crossing is effectively in two parts.  Pedestrians on the pavement wishing to cross should use a button to operate the lights which will give them an opportunity to cross the first three lanes to the central reservation.  On arrival there, they must move a few feet to their left and press another button which will operate the traffic lights which will provide an opportunity to cross the second half of the carriageway. 
3.	The area of the central reservation which pedestrians must use while crossing the road is bounded by railings, save for the sections by which they arrive and leave.  That area is colloquially known by the police as a ‘sheep pen’; as the name implies, the railings are designed to restrict the movement of pedestrians so that they must cross by the designated route.  At the time of the accident, the central reservation consisted of a raised flowerbed which the Local Authority had planted with shrubs, bushes and plants of different shapes and sizes.  Photographs taken by the police shortly after Mrs Yetkin’s accident show that the shrubs immediately adjacent to the railings bordering the access to the southbound carriageway were thick and quite tall.  The result was that a pedestrian who had reached the central reservation and wished to cross the southbound carriageway had a restricted view of the road to his or her left.  In particular, that pedestrian’s view of the traffic approaching from the left in the outer lane of the three (the first to be crossed) was substantially obscured. 
4.	Shortly after 9pm, Mrs Yetkin, the appellant in this court, was crossing the High Street on her way to a bingo hall.  She had reached the central reservation and, so the judge found, she decided to set off across the southbound carriageway without waiting for the traffic lights to change in her favour. She was struck by Mr Mahmood’s motor car which was travelling, quite properly, in the outside lane.   
The judge’s decision
5.	Mrs Yetkin’s  primary allegation was that she had crossed the road at a time when the lights were green in her favour and red against Mr Mahmood’s motor car.  The judge rejected that.  Her alternative submission was to allege against the local authority that the planting and/or maintenance of the shrubs had created a hazard on the highway by reason of the fact that it restricted the view of pedestrians using the crossing.  The creation of that hazard amounted to a breach of the local authority’s common law duty of care to her as a road user.    
6.	The judge found that the bushes seriously interfered with Mrs Yetkin’s view to her left as she prepared to cross the southbound carriageway.  Further, he held that the bushes played a significant part in the events leading to the accident and that, if they had not impeded her view, Mrs Yetkin would probably not have stepped out into the road when she did.  The judge noted that the Council had called no evidence and he inferred that it was responsible for creating a state of affairs which had significantly contributed to the occurrence of the accident. 
7.	Those holdings are not challenged in this appeal. Notwithstanding the holdings he had made in respect of the condition and effect of the bushes, the judge was persuaded that the claim against the local authority must be dismissed because it did not owe a duty of care to pedestrians such as Mrs Yetkin.  It is that issue which lies at the heart of this appeal.  The judge gave permission to appeal to this court. In the event that the proposed appeal might succeed, he expressed his opinion on the issue of contributory negligence.  On the findings of fact that he had made, it was obvious that Mrs Yetkin was substantially to blame for what had happened.  The judge assessed her share of the blame at 75%.  The appellant contends that that assessment was too severe on Mrs Yetkin.  I gave permission to appeal on that issue. 
The judge’s reasoning
8.	In seeking to persuade the judge that the local authority did not owe the claimant a duty of care, Mr Weitzman for the local authority relied mainly on Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, [2004] UKHL 15.  In that case, the claimant had been injured when she drove her car into collision with an oncoming vehicle near the crest of a hill.  She had been driving too fast for safety.  Her case against the local authority was that it should have provided a warning to motorists to ‘go slow’ because of the approaching hazard.  The authority had a statutory power and a public law duty to take steps to promote road safety, pursuant to section 39(2) of the Road Traffic Act 1988.  It was contended for the claimant that that statutory power and public law duty gave rise to a parallel common law duty of care to take appropriate road safety measures and that this would have included the provision of a warning at the accident site.  The House of Lords unanimously rejected that proposition.  
9.	Mr Weitzman did not suggest to the judge that the present case was on all fours with Gorringe.  He accepted that, whereas in Gorringe the complaint was that the highway authority had failed to exercise its statutory powers, in the present case, the complaint was that the local authority had exercised its powers but had done so negligently, thereby creating a danger for pedestrians using the crossing.  So this case was different from Gorringe.  However, Mr Weitzman relied upon certain passages from the speeches of Lord Hoffmann and Lord Brown of Eaton-under-Heywood which he claimed supported his contention that the common law duty of care owed by a highway authority towards road users, not to create a hazard on the road, is governed by special limitations, not to be found elsewhere in the common law tort of negligence.  There were two such limitations, he submitted. First, the highway authority’s duty of care arose only if it created a foreseeable risk of injury to the reasonably careful, prudent road user; it owed no duty whatsoever to careless or negligent road users.  Second, its duty was limited to the avoidance of actions by which it created a ‘trap’ for the road user or a dangerous situation into which the road user was ‘enticed’.    
10.	The judge below accepted those two submissions.  Before doing so, at paragraph 129, he set out the premise on which he was proceeding:  
“I proceed, therefore, on the footing that it remains good law that where a Highway Authority, in the exercise of its statutory powers and duties, creates a danger to users of the highway which would not otherwise have been present, it may well be held to owe a duty of care to any users of the highway who suffer damage by reason of the danger in question.”
So it appears that the judge had well in mind that he was dealing with the duty in respect of positive acts and not with a mere failure to act.  
The judge then mentioned a passage from paragraph 102 of Lord Brown’s speech in Gorringe and cited a long passage from paragraphs 35 and 36 of Lord Hoffmann’s, both of which he thought supported Mr Weitzman’s submissions and to both of which I will return in due course. At paragraph 132, he considered Mr Weitzman’s submission that, whether the judge were to find that it was Mr Mahmood or Mrs Yetkin who had failed to comply with the traffic signals, any danger created by the bushes should have been obvious to a careful road user, whether driver or pedestrian.  In that sense, therefore, the bushes were not a ‘trap’.  Further, if it had been Mr Mahmood who had caused the accident by driving through over the crossing while the lights were red against him, there would be no policy justification in imposing an additional duty of care on the local authority.  Also, if Mrs Yetkin attempted to cross when it was unsafe, the law would not impose a duty on the local authority to protect her against her own carelessness.  
11.	At paragraph 133, the judge accepted Mr Weitzman’s submissions.  He said: 
“Foreseeability is no longer the touchstone of liability in negligence - if indeed it ever was.”
Whilst he accepted that the bushes were a significant cause of the accident and an obvious danger, he did not think they could be regarded as a ‘trap’. He continued: 
“It was, as it seems to me, an obvious danger for someone attempting to cross the southern carriageway from the central reservation. It should have been perfectly possible for a pedestrian in Mrs Yetkin’s situation to lean forward and, if necessary, step forward on to the very edge of the carriageway itself before committing herself to cross.  Any such pedestrian should certainly have done so before attempting to cross when the lights were or might have been in favour of vehicular traffic. In reality it does not seem to me that the position is significantly different from that which would face a pedestrian seeking to cross a busy road from behind a large parked vehicle. It is true that, in many cases a pedestrian would have a choice as to whether to cross at that point. But if he chose to do so, it is obvious that he would have to take great care before passing beyond the offside of the vehicle. But I find it difficult to think that the driver of the vehicle in question would owe any duty of care to the pedestrian in such circumstances. 
134.  In the present case, on my findings, Mrs Yetkin chose to disregard the signal and attempted to cross the road whilst the lights were still showing green in Mr Mahmood’s favour. In doing so, she could not have properly addressed the obvious danger presented by the shrubs and bushes in the central reservation. Indeed, she ought to have done so before crossing even if the lights had been her favour. But in that latter scenario Mr Mahmood would have been plainly liable to her: and it could hardly be fair and reasonable to impose upon the Council a duty of care which might have enabled him to claim contribution in respect of his own negligence. In all the circumstances, I have come to the conclusion that the Council did not owe a duty of care to either pedestrians such as Mrs Yetkin or motorists such as Mr Mahmood in respect of the overgrown condition of the shrubs and bushes in the central reservation.”
The appeal to this court - submissions
12.	On appeal to this court, Mr Willems who appeared for Mrs Yetkin here and below, submitted first that the judge had taken the observations of Lords Hoffmann and Brown out of context and had been led (no doubt by Mr Weitzman’s effective advocacy) into an error of law.  He submitted that neither Lord Hoffman nor Lord Brown were seeking to lay down any new limitations on the duty of care owed by a highway authority towards road users in the careful exercise of powers which it had decided to exercise.  They were seeking only to justify and explain the conclusion that it would only be in rare circumstances that there could be a common law duty on the highway authority towards road users in respect of a decision not to exercise a statutory power.      
13.	Second, Mr Willems submitted that the judge had overlooked the clear indications in the speech of Lord Hoffmann (with whom all members of the House agreed) that nothing which was to be decided in Gorringe affected the established common law principles by which a local authority could be held liable for the negligent exercise of its statutory powers.   
14.	Mr Weitzman, who again appeared for the local authority, repeated and expanded upon the submissions he had made to the judge. There is no need for me to repeat them here. 
Discussion
15.	In order to consider Mr Willems’ submissions, it will be necessary to examine the speeches of Lord Hoffmann and Lord Brown in some detail and to set the passages relied on in context.  I shall begin with Lord Hoffmann’s speech and, as I go through it, I will note the passages which Mr Willems particularly relies on to demonstrate that Lord Hoffmann was making it quite plain that nothing he was discussing in Gorringe was intended to impact upon the established law in relation to the negligent execution of a statutory power by a highway authority.     
16.	At paragraphs 10-12, Lord Hoffmann considered the history of the duty of a parish and later a highway authority to keep its highways in repair, noting the limited extent of that duty. Until 1961, the duty of repair was a public law duty enforceable only by prosecution. There was no liability in damages to persons injured as the result of non-repair. Then at paragraph 13, Lord Hoffmann said: 
“This remained the law when the duty was transferred (from parishes) to highway authorities. An individual who had suffered damage because of some positive act which the authority had done to make the highway more dangerous could sue for negligence or public nuisance in the same way as he could sue anyone else. The highway authority had no exemption from ordinary liability in tort.  But the duty to take active steps to keep the highway in repair was special to the highway authority and was not a private law duty owed to any individual.  Thus it was said that highway authorities were liable in tort for misfeasance but not for non-feasance.  Sometimes it was said that the highway authority was “exempt” from liability for non-feasance, but it was not truly an exemption in the sense that the authority had a special defence against liability. The true position was that no one had ever been liable in private law for non-repair of a highway.  But all this was changed by section 1(1) of the Highways (Miscellaneous Provisions) Act 1961. The public duty to keep the highway in repair was converted into a statutory duty owed by the highway authority to all users of the highway giving a remedy for breach”.    
17.	This passage is important in my view even though the case we are concerned with is not about a failure to maintain the highway.  It is important because it recognises that, long before there was any private law duty of highway maintenance on a parish or highway authority, that authority could be liable to a road user on exactly the same basis as any other person whose positive actions affected the safety of the highway and caused damage.  Such a liability could arise in a great variety of ways, not limited to the physical condition of the road surface or the placing of obstructions on the roadway. Restricting visibility by creating clouds of smoke was one type of activity which could give rise to liability.  It would matter not whether the action was taken by an adjacent landowner burning off stubble, a private individual setting a bonfire on the verge or similar actions undertaken on behalf of the parish. The common law recognised a duty on any person not to create a hazard on the highway which would affect the safety of road users.  The extent of the duty would be a matter of fact and degree; the common law has only ever imposed a duty to do what was reasonable (or avoid doing that which was unreasonable) in all the circumstances.  
18.	Lord Hoffman then considered the extent of the private law statutory duty on the local authority to keep the highway in repair pursuant to section 41 of the Highways Act. He concluded that the duty related to the condition of the highway itself and did not extend to a duty to install signs warning of dangers. That disposed of Mrs Gorringe’s claim for breach of statutory duty and, at paragraph 17, Lord Hoffmann turned to consider her alternative contention that the authority was under a common law duty to place warning signs on the road.  He noted that Mr Wingate-Saul, counsel for Mrs Gorringe, accepted that, unless a common law duty could be derived from the statutory power to take measures to promote road safety pursuant to Section 39(2) of the Road Traffic Act 1988, it would be impossible to contend that the authority owed a road user a duty to erect warning signs on the road.  He continued:  
“It is not sufficient that it (the highway authority) might reasonably have foreseen that, in the absence of such warnings, some road users might injure themselves or others. Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it.”
19.	Lord Hoffmann is there saying that the usual criterion for establishing liability for positive actions is the foreseeability of physical harm but that that is not enough to impose liability on a person who does nothing.  I would have thought that the first part of that statement was trite law but I draw attention to it because it is Mr Weitzman’s submission that something more than mere foreseeability of physical harm is required before there can be liability on a highway authority in respect of the negligent execution of its powers.  
20.	Lord Hoffmann set out the statutory power on which Mrs Gorringe relied and observed that it created a public law duty. The question was whether it could give rise to a private law duty.  That question had been considered by the House in Stovin v Wise and Norfolk County Council [1996] AC 923.  In that case, Mr Stovin was injured when Mrs Wise drove her car out of a junction without keeping a proper look out.  She was negligent.  But she alleged that the highway authority had been in breach of its duty to road users because it had failed to improve the sight-lines of the junction by removing or reducing the height of a bank adjacent to the junction.  If that had been done, Mrs Wise would probably have seen Mr Stovin coming.  The facts were strong in that the highway authority had actually decided to have the bank reduced because the junction was unsafe but had not got round to doing the work when the accident happened.    At first instance and in the Court of Appeal, the highway authority was held liable with a contribution of 30%.  
21.	In the House of Lords, the Authority’s appeal succeeded by a majority decision. The ratio of the majority decision is not entirely clear. It appears from the headnote in the Appeal Cases report that the majority (Lord Hoffmann with whom Lords Goff and Jauncey agreed) held that although the existence of a statutory power (in the absence of a statutory duty) would normally exclude the existence of a common law duty of care but, that in some circumstances, that common law duty might not be excluded. The minimum preconditions for the existence of such a common law duty were that it must be shown that, in the circumstances, it would have been irrational for the authority not to exercise its statutory power; in effect, there must be a public law duty to act.  Secondly, there would have to be exceptional grounds for holding that the policy of the statute required compensation to be paid to a person who suffered loss because the power had not been exercised.  The headnote suggests that the majority thought that those special conditions were not satisfied on the facts of the instant case but that the minority (Lord Nicholls, with whom Lord Slynn agreed) thought that they were. However, when Lord Hoffmann discussed this case in Gorringe, he said that the reasoning of the majority was simply that the statutory power under section 39 (2) of the Road Traffic Act 1988 did not give rise to a common law duty.  He said, at paragraph 26, that a misunderstanding had arisen because the majority judgment (which he himself had written) went on to discuss, in the alternative, what the nature of such a duty might have been if there had been one. He mentioned the need to show that the authority had acted irrationally in not exercising its power. The majority had been of the view that, on the facts, there had been no breach of such a duty even had it existed.  He then observed that the possible existence of such a common law duty had proved controversial and it may have been ill-advised to discuss it.  However, the minority had certainly been of the view that, in some circumstances, the failure to exercise a statutory power could give rise to a common law duty of care, the pre-conditions being those set out in the head note of Stovin. The minority had been of the view that those pre-conditions were satisfied and that Norfolk County Council had been properly held liable.  
22.	This discussion about what Stovin actually decided led Lord Hoffman further into the question of whether a duty of care can arise from the non-exercise of a statutory power.  At paragraphs 28 to 31, he discussed the case of Larner v Solihull Metropolitan Borough Council [2001] RTR 469. This was another case where the claimant alleged that the highway authority ought to have placed markings on the road surface to improve safety but in fact had done nothing.  At first instance, the claim had failed but it succeeded in the Court of Appeal (Lord Woolf CJ, Judge and Robert Walker LJJ). The court had adopted what Lord Hoffmann considered was the minority view in Stovin.  He thought the Court of Appeal had been wrong to do so. The Court should have followed the majority view which was that there was no common law duty. Lord Hoffmann then went on to deprecate the effect of leaving open the possibility that a failure to exercise a section 39 power might give rise to a common law duty of care.  For example, it had greatly complicated the trial of the issues in Gorringe and for no good reason because there was no common law duty of care arising from the failure to exercise the section 39(2) power. 
23.	At paragraph 34, Lord Hoffmann set out the submission made on behalf of Mrs Gorringe that the duties imposed on local authorities to promote road safety were imposed in the interests of careless drivers.  They owed the duty even though the danger (at the crest of the hill) would have been obvious to a reasonable driver.  Lord Hoffmann dealt with this submission at paragraphs 35 and 36 and these are the two paragraphs which Judge Hegarty cited and from which he appears to have derived support for his eventual conclusion. Lord Hoffmann said: 
“35.  Of course it is in the public interest that local authorities should take steps to promote road safety. And it would also be unwise for them to assume that all drivers will take reasonable care for their own safety or that of others. If a driver kills or injures someone else by ignoring an obvious danger, it is little consolation to the victim or his family that the other driver was wholly to blame. And even if the careless driver kills or injuries only himself, the accident may have a wider impact upon his family, his economic relationships and the burden on the public services. This is why section 39 of the 1988 Act is framed as a broad public duty. …..But the public interest in promoting road safety by taking steps to reduce the likelihood that even careless drivers will have accidents does not require a private law duty to a careless driver or any other road user. … 
36. Nor does it follow that the council should be liable to compensate third parties whom careless drivers have injured. The drivers must take responsibility for the damage they cause and compulsory third party insurance is intended to ensure that they will be able to do so: compare Stovin v Wise [1996] AC 923, 958.   ”
24.	Pausing there, I can see that if those two paragraphs were to be considered in isolation, it might be thought that Lord Hoffmann was speaking about the duties of a highway authority generally, including its liability for the negligent execution of those statutory powers it had chosen to exercise.  But, read in context, it is plain that his observations were confined to the narrow issue of whether the statutory power under section 39(2) gave rise to a common law duty to act and that a failure to exercise the power could be a breach of that duty.  That is all he was saying.  Moreover, at paragraph 38 he said this:   
“My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationship or undertaken responsibilities which give rise to a common law duty of care.   In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty.”
25.	I do not think that Lord Hoffmann could have made it more plain that Gorringe was not concerned with cases where the public authority has done something positive which has or may have given rise to a common law duty of care.  The House was saying nothing to gainsay the well-established law that a person who does an act which affects the safety of the highway will generally owe a duty of care to road users and if there is a breach of that duty liability will follow.  It is impossible to contend that Lord Hoffmann intended to lay down any new rules or conditions about the extent or scope of the duty of care of a highway authority which creates a hazard on the highway.
26.	For the sake of completeness I mention that Lord Hoffmann concluded his speech by distinguishing a number of cases (of which Phelps v Hillingdon London Borough Council [2001] 2AC 619 was the most recent) in which it had been held that, in the particular circumstances of the case, a common law duty of care had (at least arguably) arisen by reason of the behaviour of the authority or the relationship which had developed between the authority and the claimant.       
27.	I come now to Lord Brown’s observations on which Mr Weitzman also relied and from which the judge also appeared to find support.  Before quoting from his speech, I observe that Lord Brown expressed his agreement with the speech of Lord Hoffmann, as did Lords Steyn, Scott and Rodger. So it would be surprising if he intended to say anything very different.  
28.	Lord Brown discussed the background to the submission advanced for Mrs Gorringe, explaining that it had its origins in the dicta of the Court of Appeal in Larner v Solihull MBC [2001] RTR 469 where the Court of Appeal contemplated that a local authority might be liable at common law for its failure to paint warning signs on a road based on its section 39(2) duty provided that the authority’s decision could be shown to be outside the ambit of its discretion; in other words irrational.  That proposition had its origin in Stovin v Wise as I have explained above.    
29.	At paragraph 100, Lord Brown expressed his agreement with Lord Hoffmann’s explanation as to why the Hillingdon type of case was to be distinguished from the present type of case.  He noted that the common law duty of care in those cases had arisen not by reason of the respective authorities’ statutory powers and duties but rather from the relationships in fact created between those authorities and the children for whom they had assumed responsibility. He continued (and this runs into the first passage that Mr Weitzman relies on): 
“I would add moreover this further distinction. Unless in those cases the court were to find the authority’s various responsibilities capable of giving rise to a common law duty of care, those wronged children, themselves wholly blameless, would go uncompensated, however inadequately their interests had been safeguarded.  In the highway context, by contrast, the claimant will almost inevitably himself have been at fault. In these circumstances, it seems to me entirely reasonable that the policy of the law should be to leave the liability for the accident on the road user who negligently caused it rather to look to the highway authority to protect him against his own wrong.”
30.	Mr Weitzman’s argument before us and before the judge was that this last passage supported the proposition that a highway authority could be held liable for the negligent exercise of its powers only in relation to a careful prudent road user.  But that passage says no such thing.  It discusses the position where it is unclear whether the statutory power of a public authority gives rise to a common law duty of care to a claimant; in some circumstances it might and in others not; the innocence of the claimant and the lack of any alternative remedy may be relevant considerations to that issue. But Lord Brown was certainly not discussing any limitations on the existing law in relation to the negligent exercise of a statutory power. To read the passage in that way would be to take it quite out of context.  
31.	The same must be said of the last passage relied on by Mr Weitzman, found in paragraphs 101 and 102 of Lord Brown’s speech. After discussing the right of a road user to sue the highway authority in respect of the condition of the road surface, Lord Brown continued: 
“Road users are not, however, entitled to rely upon the highway authority with regard to the various other hazards of road use.  They are not entitled to suppose that their journeys will be free from these or that the need for care will generally be highlighted so as to protect them from their own negligence.
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.
32.	Pausing there, it appears to me that, in that passage, Lord Brown was clearly discussing the position of a road user who seeks to blame the highway authority for causing or contributing to an accident by reason of a failure to exercise a statutory power.  He recognised that there would be statutory liability for the condition of the road surface and also ‘conventional common law liability’ for creating a danger by a positive act, (which may well arise as the result of the negligent exercise of a statutory power such as that provided by section 39 of the Road Traffic Act 1988). It is true (and perhaps unfortunate) that when mentioning this latter ‘conventional liability’ Lord Brown used the expression ‘enticed the motorist to his fate’.  It seems to me that that was merely colourful language and not in any way intended to suggest that, in an action where it is alleged that the highway authority created the danger, the danger had to amount to an enticement.  Nor does the last sentence of that passage suggest that, in order for a ‘conventional’ action to succeed, the claimant needs to show that he has been ‘trapped’ into danger.  After this passage, Lord Brown goes on to give several examples of circumstances in which a duty may arise because a power has been exercised in a negligent way.  So, the thrust of this passage is that there will be statutory liability for the state of the road surface and common law liability for hazards created by the highway authority but no liability for a failure to exercise the statutory power under section 39.  That that was all Lord Brown intended to say is clear from the opening words of the following paragraph, where he says:  
“103. There seems to me, therefore, no good reason for superimposing upon such general powers and duties as are conferred upon highway authorities a common law duty of care in respect of their exercise.”
33.	For my part, I entirely accept Mr Willems’ submission that the judge took these passages from Gorringe out of context and consequently misunderstood them. He thought that they imposed additional requirements on a claimant bringing a conventional common law claim against a highway authority for creating a hazard on the highway.  There are no such additional requirements. This highway authority owed a duty to all road users (whether careful or negligent) to use reasonable care in the manner in which it exercised its powers when it created and maintained the crossing facility.  As the judge found, this highway authority exercised its statutory powers to create a scheme for taking pedestrians safely across this road. That entailed the erection of barriers and the ‘sheep pen’ which would effectively prevent pedestrians from crossing at any other point than the designated place.  It was the authority’s intention that pedestrians would rely on the traffic light system but it was entirely foreseeable that some would not do so and would cross without waiting for the lights.  It was therefore obviously necessary to give pedestrians good view of the carriageway. The planting of vegetation in the raised beds of the central reservation is obviously a reasonable exercise of the authority’s powers but to plant shrubs which will grow so large as to obscure the view and then not to ensure that they are trimmed back is a negligent exercise of those powers.  The judge held that that failure was a cause of this accident.   It is not suggested that he was not right so to hold.  I have no doubt that, in the circumstances of this case, the local authority had a common law duty of care towards the appellant, notwithstanding her own negligence, that that duty was breached and that the breach was a cause of the accident.  There was no need for the judge to consider whether the danger created by the bushes amounted to a trap or enticement.  It follows in my judgment that the judge erred in dismissing the claim. He should have held that primary liability was established. 
34.	I turn to consider contributory negligence. The judge assessed the appellant’s hypothetical contribution at 75%.  Although I granted permission for the appellant to reopen this issue, I sounded a warning note that it should not be taken that I thought that the judge was wrong.  Mr Willems has sought to persuade the court that the apportionment should be more favourable to the appellant and he suggested an apportionment of 50%.  It is well established that the court’s task is to weigh up the blameworthiness and the causative effects of the respective acts of negligence and to decide what apportionment is fair.   Such an operation necessarily requires a broad brush.  Here, it seems to me that the causative effects are roughly the same.  If the bushes had not been too high, the accident would have been avoided; if the appellant had not crossed while the car was coming, it would likewise have been avoided.  Mr Willems argued that the authority’s negligence was more blameworthy in that it took place over a period of time and notionally exposed a number of road users to harm, whereas the appellant merely made a momentary error of judgment or lapse of attention.  However, the judge held that the appellant actually decided to cross when she did; this was not mere inattention. She took the decision to cross this three lane highway without waiting for the lights to change in her favour. It seems to me that when a pedestrian decides to cross a three lane highway in this way (and we all do it from time to time) he or she accepts a high degree of responsibility to ensure that it is safe to do so.  I would therefore uphold the judge’s assessment that the appellant was 75% to blame for her misfortune.
35.	I would allow the appeal and substitute an order that the respondent be held liable to compensate the appellant for 25% of the damage caused in this accident.  
Lady Justice Black
36.	I agree.
Lord Justice Laws
37.	I also agree.