PIBULJ Articles

NUISANCES UPON THE HIGHWAY AND SUCCESSFULLY

RECOVERYING DAMAGES

This Article concerns the legal position where vehicles and/or persons are damaged and/or respectively suffer injury as a result of an obstruction upon the highway. What follows in this Article is an outline of a recent case in which I was instructed for the Claimant, heard in the summer of 2006 in the Walsall County Court. I have set out the note of judgment in some detail below.

This case, and the earlier cases referred to give a Claimant very good grounds for successfully recovering damages where trees and/or scrubs encroach onto the highway. Accordingly, if one was acting for a person that had been sitting on a bus that struck an overhanging branch, whilst the person on the bus is likely to sue the bus company, the bus company has very good grounds to successfully bring a Counterclaim against the Local Highways Authority or alternatively the Claimant may be best advised to sue the Local Highways authority directly, if it was argued by the Bus Company that hitting the tree was unavoidable. It is difficult to see, how a Claimant could fail against a Highways Authority with regard to any overhanging branches that caused an accident.

Travel West Midlands v Sandwell Metropolitan Borough Council heard in the Walsall County Court in front of Recorder Boydell on the 4^th/5^th July 2006.

On the 6^th February 2004 the Claimant’s bus, a double decker bus was driving along a road being a highway within the meaning of the Highways Act 1980. Unfortunately the Claimant’s bus came into collision with a tree on the side of the road which encroached onto the road by 15 inches, section 96(6) of the Highways Act 1980 does not apply as it was not a planted tree within the meaning of the 1980 Highways Act and further, is likely to have been planted prior to 1925 and therefore, not planted under the statutory power within section 1 of the Road Improvements Act 1925. Accordingly, the case centres on whether the tree was a nuisance and whether injury was foreseeable.

The accident occurred on a road which was a single lane road in either direction. The Claimant company operate buses along this road and the bus in question was about 14 foot high. The tree at the edge of the road gradually encroached onto the road as it got higher and at a distance of about 14 feet, encroached onto the road by about 15 inches.

The bus driver attempted to avoid an overtaking car coming from the other direction and had to swerve close to the kerb causing the bus to hit the tree and suffer considerable damage.

The Claimant referred to the case of Hurst v. Hampshire County Council – Lawtel 1997. That case identified 3 categories of trees, trees planted pre-adoption of the road, trees planted post-adoption of the road and planted trees planted pursuant to statutory power. The Court of Appeal in that case urged that there should be a consistent approach to all highways trees, on the basis that they are subject to the same system of inspection by the relevant Highways Authority and no distinction is made by the Highways Authority with regard to three categories of trees.

The Claimant’s case was that a lawful road users is entitled to use any part of the road including the road immediately adjacent to the kerb and the Court was referred to the decision of Tanner v. Ringwood (1870) and the case of Hale v. Hants (1947) 2 All ER 628. In that case Lord Greene MR found that one was entitled to use the whole of the highway and the Court found itself bound by the earlier decision of Hale in that regard.

Noting the above decisions the Court found that despite the lack of complaints, or earlier reported accidents that the Claimant was entitled to use the full width of the road and that this type of accident was foreseeable in the circumstances. Accordingly, the Court found that the tree constituted a nuisance and obstacle on the main road and as such the Defendant Highway Authority were liable.

It is interesting to note, in the case of Hale mentioned above, the projection of the branches into the road was only 7 ½ inches and 6 ½ inches respectively. These are clearly very small encroachments onto the road, however with the comment of Lord Greene, MR it would seem, that a person is entitled to use the full width of the road and therefore, damage flowing from that in respect of overhanging branches and/or vegetation is something that a Highways Authority would be liable in respect of. The only way I think a Defendant Highway Authority could successfully argue that it was unforeseeable would be if a vehicle of particularly unusual height was using a very small country road. I do not believe, that foreseeability could be properly argued with regard to a normal HGV or double decker bus.

N.D.H EDWARDS

Exchange Chambers

Manchester & Liverpool