Chapter 10

CHAPTER 10
HIGHWAYS AND TRANSPORT
PARA.
1. Highways .................................................................................................................... 10–01

A. Maintenance of the highway ............................................................................... 10–01
B. Dangers on the highway ...................................................................................... 10–16
C. Dangers adjoining the highway ........................................................................... 10–52
D. Miscellaneous dangers .......................................................................................... 10–75
2. Carriers ....................................................................................................................... 10–83
A. Generally .............................................................................................................. 10–83
B. Railways ............................................................................................................... 10–100
C. Road carriage ........................................................................................................ 10–140
D. Ships ...................................................................................................................... 10–159
E. Aircraft .................................................................................................................. 10–168
F. Hovercraft .............................................................................................................. 10–185
3. Highway users and collisions .................................................................................... 10–187
1. HIGHWAYS
(A) Maintenance of the highway
Introduction. At common law no action lay if a highway, which was 10–01

repairable by the inhabitants at large, fell into a state of disrepair, resulting in
damage to a person using it. Originally, liability to repair public highways rested
upon the inhabitants of any parish through which the highway passed, each
parish being responsible for that part of the highway within its own bounds.
However the parishes had no collective fund from which damages could be
recovered and it was impractical for a plaintiff to sue each individual member of
the parish for a proportion of the damages.1 That left an action by indictment as
the only remedy for non-repair.2 When the Highway Act 1835 transferred the
duty of repairing highways to the surveyor of highways, it was held that he was
entitled to the same immunity as the inhabitants of the parish.3 In course of time
various statutes, up to the Highways Act 1959, transferred the duty to maintain
1
Russell v Men of Devon (1788) 2 T.R. 667.
2
This procedure was abolished (though it had long fallen into disuse) by the Highways Act 1959. The
procedure is now by way of service of a notice on the highway authority: see ss.56 and 322 of the
Highways Act 1980, which consolidates the various previous Acts.
3
Young v Davis (1862) 7 H. & N. 760; affirmed 2 H. & C. 197; M’Kinnon v Penson (1854) 9 Ex.
609.
[711]
10–01 CHAPTER 10—HIGHWAYS AND TRANSPORT
the highway from the inhabitants of the parish to statutory highway authorities
but it remained the position that no private law remedy was available to a person
suffering loss as a result of non-repair.4
10–02 The Highways Act 1980. The position at common law was not consistent
with modern requirements and after pressure to change the law5 the Highways
(Miscellaneous Provisions) Act 1961 was introduced which, inter alia, abro-
gated6 the rule of law exempting the inhabitants at large from liability for non-
repair of highways7 and provided a defence of ‘‘due care’’ for a highway
authority8 sued for damage9 arising from a failure to maintain the highway. This
Act and the Highways Act 1959 were subsequently consolidated in the Highways
Act 1980. It is important to recognise that the remedy in respect of a breach of
the highway authority’s duty to maintain the highway is founded upon a breach
of statutory duty and not upon the tort of negligence.10
10–03 Section 41 of the Highways Act 1980 imposes a duty on highway authorities11
to maintain the highway.12 Maintenance includes repair.13 The duty is to maintain
the structure and fabric of the highway which includes not only the surface of the
highway but the drains associated with it.14 The duty is absolute,15 but not in the
sense that the highway has to be perfect.16 A claimant cannot succeed in fixing
the highway authority with liability for an accident unless it is proved that the
4
See, e.g. the minority judgment of Lord Denning M.R. in Haydon v Kent County Council [1978]
Q.B. 343, CA for a summary of the position at common law. Lord Denning’s judgment was
subsequently approved by the House of Lords in Goodes v East Sussex County Council [2000] 1
W.L.R. 1356, HL.
5
Notably from the General Council of the Bar in 1960.
6
The Highways (Miscellaneous Provisions) Act 1961 s.1(1).
7
Any reference to a highway in s.1 included a reference to a bridge: The Highways (Miscellaneous
Provisions) Act 1961 s.1(4).
8
The Highways (Miscellaneous Provisions) Act 1961 s.1(4) provided that in the application of this
section to highways in London repairable by the inhabitants at large, references to the highway
authority were references to the council responsible for the maintenance of the highway.
9
This section did not apply to damage resulting from breaking, opening, tunnelling or boring under
a street by way of code-regulated works which occurred: (a) before the completion of the reinstatment
or making good of the relevant part of the street (under the Public Utilities Street Works Act 1950
s.7(2)); or (b) where the relevant part of the street is the subject of an election (Public Utilities Street
Works Act 1950 Sch.III); see subs.(7).
10
Gorringe v Calderdale MBC [2004] 1 W.L.R. 1057, HL.
11
See s.1, the highway authority is not always the Local Authority.
12
Highway includes the whole or part of the highway and includes any bridge or tunnel (s.328
Highways Act 1980). The duty owed pursuant to s.41 can co-exist with duties owed by the providers
of tramways where tram tracks are inserted into a road: Roe v Sheffield City Council [2003] EWCA
Civ 01.
13
s.329(1).
14
Burns v Emmerson [1968] 1 Q.B. 374, also The Department of Transport, Environment and the
Regions v Mott Macdonald Ltd [2006] EWCA Civ 1089. A failure to maintain road furniture, such
as a bollard, does not give rise to a breach of s.41 although it may give rise to an action in
negligence—see Shine v London Borough of Tower Hamlets [2006] EWCA Civ 852.
15
Griffiths v Liverpool Corp [1967] 1 Q.B. 374.
16
per Lord Hoffmann in Goodes v East Sussex County Council [2000] 1 W.L.R. 1356, HL.
[712]
HIGHWAYS 10–05
highway was dangerous, in the sense that danger could reasonably be anticipated
from its use.17 For a claimant to succeed it must be proved that:
‘‘(a) the highway was in such a condition that it was dangerous to traffic or pedestrians
in the sense that, in the ordinary course of human affairs, danger may reasonably have
been anticipated from its continued use by the public;
(b) the dangerous condition was created by the failure to maintain or repair the
highway; and
(c) the injury or damage resulted from such a failure.’’18
What amounts to a dangerous hazard depends on the circumstances of the 10–04

case. It is no longer, if it ever was, simply a matter of measurement and attempts
on that basis to make comparisons between cases have been deprecated. While
a difference of level in a pavement of more than 25mm has been found to be a
breach of s.41 of the 1980 Act, in some circumstances a smaller difference may
be sufficient. The location of a potential hazard will generally be significant so
that what may be acceptable on a quiet rural lane may not be on a busy city street,
albeit the measurement is the same. Also, the type of traffic using the highway
is likely to be relevant: a stretch of pavement outside a factory may be judged
differently from pavement outside an old people’s home.19 The question is not
whether the highway as a whole is in an unsatisfactory state, but whether the
specific location where the accident occurred is dangerous.20 The Local Author-
ities’ Association publishes a code of good practice for highway maintenance.
The code gives guidance as to the circumstances in which a particular defect is
sufficiently hazardous as to justify repair having regard to its dimensions and
location. Many highway authorities have adopted the code, which may be
referred to by a court as a guide, in deciding if a defect was sufficiently dangerous
to found a breach of s.41.
ILLUSTRATIONS
A breach has been established where: a rocking flagstone protruded between 10–05
half and three-quarters of one inch (12.7mm to 19.1mm) on a busy highway21;
and where a manhole cover protruded 12mm above the pavement.22 No breach
was established where a paving stone had sunk to three-quarters of an inch
(19.1mm) below an adjacent stone.23 Erosion on a little used riverside path which
had caused a depression to a depth of 0.6m but where there was ample room on
the remainder of the path to pass in safety did not constitute a breach of
17
In Burnside v Emmerson [1968] 1 W.L.R. 1490, 1497 the duty was expressed to be a duty to keep
the highway ‘‘in such good repair as it renders it reasonably passable for the ordinary traffic of the
neighbourhood at all seasons of the year without danger caused by its physical condition.’’ The
highway authority in carrying out its duty must bear in mind that some users of the highway may be
negligent or may make mistakes, see Rider v Rider [1973] Q.B. 343.
18
See Mills v Barnsley Metropolitan Borough Council [1992] P.I.Q.R. P291, CA at 292.
19
Rider v Rider [1973] Q.B. 505, CA, at 518.
20
James v Preselli Pembrokeshire District Council [1993] P.I.Q.R. P114, CA.
21
Griffiths v Liverpool Corp [1967] 1 Q.B. 374, CA.
22
Reid v British Telecommunications Plc, The Times, June 27, 1987.
23
Meggs v Liverpool Corp [1968] 1 W.L.R. 689, cf. [1968] 1 All E.R. 1137, CA.
[713]
s.41.24 Where the verge of a narrow stretch of rural A road had sunk to depths of
between four inches (10cm) and 12 inches (30cm) so that the driver of a car lost
control of her car when the nearside wheel dropped onto the verge, a breach of
s.41 was established.25
10–06 It has been held that a person who has suffered purely economic loss resulting
from a highway authority’s breach of its statutory duty to maintain a highway is
not entitled to recover that loss from the authority.26
10–07 Transient hazards. In Goodes v East Sussex County Council27 the House of
Lords held that the duty to maintain the highway pursuant to s.41 of the
Highways Act 1980, was the same duty as that described above as formerly
imposed upon the inhabitants at large of a parish at common law.28 Accordingly,
there was no duty upon a highway authority to take measures to prevent the
accumulation of snow and ice upon the highway by the application of salt or grit
and there was no duty to take measures to remove snow and ice which had
already accumulated. A modification of this common law rule is provided by
s.111 of the Railway and Transport Safety Act 2003, which came into force on
October 31, 2003, and amended s.41 of the Highways Act 1980 to place a duty
upon a highway authority to ensure ‘‘so far as is reasonably practicable, safe
passage along a highway is not endangered by snow and ice’’. It should be noted
that this statutory amendment extends the duty only in relation to snow and ice.
In respect of other transient hazards29 the liability of the highway authority is
limited to failures to maintain the physical fabric of the highway.
10–08 Illustrations of liability for transient hazards. Liability was established

where floodwater collected on the side of the road after torrential rain: although
the highway authority had established a proper system of maintenance, it was
vicariously liable for a workman’s failure to carry out the system properly.30 But
the mere fact that floodwater has collected on the side of the road after heavy rain
is not itself evidence of lack of maintenance, so where a pedestrian was injured
whilst trying to cross a flooded road, liability was not established.31 Where the
drainage system was not adequate or there was a failure to ensure that existing
drains could cope, the highway authority was liable.32 A local authority was
24
Jones v Rhondda Cynon Taff County Borough Council [2008] EWCA Civ 1497.
25
West Sussex County Council v Russell [2010] EWCA Civ 71.
26
Wentworth v Wiltshire County Council [1993] Q.B. 654, (the survival of the claimant’s dairy farm
depended upon the ability of the Milk Marketing Board’s road tanker to use the highway to collect
the milk production but, owing to lack of repair, the road had become dangerous and no such
collection could be made).
27
[2000] 1 W.L.R. 1356, HL., overruling Haydon v Kent County Council [1978] Q.B. 343. In Sandar
v Dept of Transport, Environment and the Regions [2005] 1 W.L.R. 1632, CA a common law duty
of care owed to a motorist by a highway authority in respect of ice was rejected.
28
para.10–01 above.
29
In Misell v Essex County Council, The Times, December 16, 1994, a highway authority was held
liable for failing to remove mud from the highway but the correctness of the decision must be in doubt
following Goodes v East Sussex County Council [2000] 1 W.L.R. 1356, HL.
30
Burnside v Emmerson [1968] 1 W.L.R. 1490, also The Department of Transport, Environment and
the Regions v Mott Macdonald Ltd [2006] EWCA Civ 1089.
31
Pritchard v Clywd County Council [1993] P.I.Q.R. P21, CA.
32
Thoburn v Northumberland County Council (1999) 1 L.G.L.R. 819.
[714]
HIGHWAYS 10–12
liable where, after a request from the police, it removed ‘‘Keep Left’’ bollards
before a protest march in order to prevent them being used as missiles and, before
the road was closed, a motorcyclist collided with the plinth upon which the
bollards had been positioned.33
Land adjacent to the highway. A highway authority’s statutory duty to 10–09

maintain the highway does not require it to carry out work on land adjacent to the
highway but not forming part of it, and although there is power in the Act for
notice to be served upon a landowner requiring the removal of an obstruction
where it impedes the view of the highway’s users,34 it has been held that the
existence of such a power does not provide a basis for imputing a common law
duty of care to exercise it in an appropriate case.35
Road marks.36 In Gorringe v Calderdale Metropolitan Borough Council,37 10–10

the claimant alleged that a collision between motor vehicles in which she was
involved, was caused by the highway authority’s failure to paint the word ‘‘slow’’
on the road at the crest of a hill where a driver’s forward vision was limited. Her
claim against the highway authority failed.38 The failure to mark the road did not
amount to a breach of s.41 of the Highways Act 1980.
In Thompson v Hampshire County Council,39 the claimant was walking in 10–11

darkness along a beaten earth path beside a road. The path formed part of the
highway and for a portion of its length it ran beside a ditch. The claimant fell into
the ditch, sustaining injury. Her claim failed, because the existence of the ditch
did not constitute a failure to maintain the highway itself and thus there had been
no breach of s.41 of the 1980 Act.
The statutory defence. If a breach of s.41 of the Highways Act 1980 is made 10–12
out, liability will not follow if the highway authority if it can establish the
statutory defence set out in s.58 of the Act. That section provides that it is a
defence for a highway authority to prove that it had taken such care as in all the
circumstances was reasonably required to secure that the part of the highway to
which the action relates was not dangerous to traffic. In considering whether the
defence is made out the court must have regard to the following factors:
(a) the character of the highway and the traffic which was reasonably to be
expected to use it;
33
Cassin v Bexley London Borough Council [1999] L.G.R. 694, CA.
34
s.79.
35
Stovin v Wise [1996] A.C. 923. In Yetkin v Newham Borough Council [2010] EWCA Civ 776, a
Highway Authority was liable for negligently placing and failing to cut bushes situated by a
pedestrian crossing.
36
See also para.10–15, below.
37
[2004] 1 W.L.R. 1057, HL.
38
In Bird v Pearce and Somerset County Council [1978] R.T.R. 290 white markings on a road at the
mouth of a junction were obliterated. The highway authority’s failure to display temporary warning
signs was held to be negligent. In Gorringe v Calderdale Metropolitan Borough Council, this decision
was considered and distinguished on the grounds that in Bird the highway authority had negligently
introduced a new source of danger.
39
[2004] EWCA Civ 1016.
[715]
(b) the standard of maintenance appropriate to a highway;

(c) the state of repair in which a reasonable person would have expected to
find the highway;
(d) whether the highway authority knew, or might reasonably have been
expected to know, that the condition of the part of the highway was likely
to cause damage to the users of the highway; and
(e) where the highway authority could not reasonably have been expected to
repair the highway before the cause of action arose, what warning notices
of its condition had been displayed.
10–13 It is no defence for the highway authority to prove that it has arranged for a
competent person to carry out the maintenance of the highway, unless it is also
proved that it has given him proper instructions concerning the maintenance, and
he has carried them out. The section binds the Crown and the Act applies where
the claimant sues in negligence, breach of statutory duty or nuisance.
10–14 The defence may be established upon proof by a highway authority that it has
a system of inspection whereby defects are recorded and those that require repair
are subsequently repaired. In Allen v Elmbridge Borough Council,40 a policy of
inspecting access roads every 12 months was reasonable and provided a defence
under s.58. Where in a residential area a highway authority inspected every six
months and a missing stop cock cover was not noticed because it was covered by
grass, the statutory defence was nevertheless made out.41 In Harrison v Derby
City Council42 a six-monthly inspection system in an area where there were a lot
of Victorian houses with cellars which were liable to drop, creating depressions
in the surface of the footway, was held to sufficient.
10–15 Statutory duty to monitor road accidents. Pursuant to s.39 of the Highways
Act 1980, as amended, highway authorities have a duty to carry out studies into
road accidents within the area for which they have responsibility and, in the light
of those studies, take such measures as appear to be appropriate to prevent
accidents occurring. Although the section is expressed in mandatory terms there
is a discretion how the duty is carried out. In Larner v Solihull Metropolitan
Borough Council,43 the claimant was injured when she drove from a minor road
across a junction with a major road. She had passed two give way signs on her
approach to the junction. The highway authority later placed an advanced
warning sign indicating the need to give way at the junction. It was held that the
authority had not acted outside the scope of its discretion and there was therefore
no breach of duty. In any event the absence of the advance warning sign did not
cause the accident. Thereafter in Gorringe v Calderdale Metropolitan Borough
Council,44 the House of Lords ruled that there was no private law remedy arising
40
[1999] B.L.G.R. 65, Q.B.D.
41
Clark v London Borough of Havering [2007] EWHC 3427. Although the Local Authority had the
power to cut the grass verge where the stop cock was concealed, a failure to cut the grass regularly
could not be founded upon as indicative of a failure to take reasonable measures for the purposes of
the s.58 defence.
42
[2008] EWCA Civ 583.
43
(2001) R.T.R. 469, CA.
44
[2004] 1 W.L.R. 1057, HL.
[716]
HIGHWAYS 10–17
out of a breach of a highway authority’s duties under s.39. No action in

negligence can be maintained by an individual claiming that loss has been
sustained by reason of a highway authority failing to implement the requirements
of the section. Comments made by the Court of Appeal in Larner 45 that
exceptionally a private law remedy might arise under s.39 were disapproved.
(B) Dangers on the Highway
Duties in respect of a highway. It is a public nuisance46 to do any act on a 10–16

highway which hinders or obstructs the free passage of the public, and an action
will lie for any damage suffered by an individual in consequence of such act, over
and above the damage occasioned to the public at large.47
In many cases the facts which give rise to such an action by an individual
member of the public will also provide the basis for an allegation that the
defendant was in breach of a concurrent duty of care.
Illustrations of liability for obstructions. Where a local authority placed a 10–17

post in the middle of a footpath to prevent cattle straying and the claimant
collided with the pole in darkness the authority was liable.48 Liability was also
established where a heap of rubbish from road repairs was left lawfully in the
road but was left unlit.49 Leaving an unguarded trench in the highway amounted
to negligence.50 Liability was established where a ridge was left in the highway
which caused a vehicle to collide with a bridge.51 There was a nuisance where a
large crowd of people were permitted to gather outside the doors of a theatre.52
Other examples of obstructions include: selling ice cream through the window of
a shop instead of over the counter53; leaving horses and carts standing for an
unreasonable length of time or in an unreasonable number54; leaving a large lorry
in a town’s main road55; parking two vehicles opposite each other56; a pool of
acid on the highway57; a piece of fat from a butcher’s shop on the pathway58; a
45
(2001) R.T.R. 469, CA.
46
For nuisance, generally, see Clerk & Lindsell on Torts 19th edn 2006 Ch.20.
47
Benjamin v Storr (1874) L.R. 9 C.P. 400; Fritz v Hobson (1880) 14 Ch.D. 542; Vanderpant v
Mayfair Hotel Co [1930] 1 Ch.138. As regards vehicles parked on the highway, see paras 10–253 to
10–257, below.
48
Lamley v E. Retford Corp (1891) 55 J.P. 133.
49
Penny v Wimbledon Urban District Council [1899] 2 Q.B. 72.
50
Gray v Pullen (1864) 5 B.&S. 970.
51
Hill v Tottenham Urban District Council (1898) 79 L.T. 495.
52
Barber v Penley [1893] 2 Ch.447, but cf. Dwyer v Mansfield [1946] K.B. 437 (queuing for potatoes
during wartime food shortages).
53
Fabbri v Morris [1947] 1 All E.R. 315.
54
Fritz v Hobson (1880) 14 Ch.D. 542.
55
Chesterfield Corp v A. Robinson (Transport) Ltd (1955) 106 L.J. 61. See also Dymond v Pearce
[1972] 1 Q.B. 496.
56
Stevens v Kelland [1970] R.T.R. 445.
57
Pope v Fraser (1939) 55 T.L.R. 324.
58
Dollman v Hillman [1941] 1 All E.R. 355.
[717]
slick of mud on the road59; clouds of smoke and steam obscuring visibility60; and
a group of people picketing an estate agency.61
10–18 Liability was established where the claimant was injured by a stream of water
which had emerged in the highway without measures being taken to warn
approaching traffic of its existence.62 Where a heap of stones was lawfully left in
the roadway but some of the stones had been spilled negligently on to the
footpath, a pedestrian, who fell over them and was injured, successfully sued for
damages.63 A pedestrian may recover damages, even when the material in
question is not on the footpath, if it is placed so close to it as to be a nuisance.
Thus, when a man tripped over a pile of slates, lying in the highway near the kerb
he succeeded in his action and was not guilty of contributory negligence ‘‘if he
does not constantly look down to his feet’’.64 A similar result followed where a
carpet was put on the footpath, because ‘‘if a person puts anything across the
pavement and a person stumbles over it, the owner is liable for the consequences.
The passer-by is not bound to look for mats on the highway.’’65 Likewise, where
the defendant’s workmen dug a hole in the pavement and left it unlit but covered
over with a specially made steel plate which projected one-eighth of an inch, they
were liable in negligence to the elderly claimant, who hurt herself by tripping and
falling over it: they had introduced a new and unexpected addition to the surface
of the roadway.66
10–19 On the other hand, during a drought, when a small hosepipe had been laid
across the highway to enable water to be brought from a tank to the defendant’s
house, and the claimant, who was delivering milk, tripped over it, her action
failed. The presence of the hosepipe on the highway was not a nuisance, because
in the circumstances it was reasonable for the defendant to put it there.67
10–20 Trees. The occupier of land is not liable if a tree,68 not known to be unsafe,
falls on to the highway and injures someone passing by.69 The duty is to act as
a prudent landowner to prevent trees which adjoin the highway from being a
danger to highway users, and there is no obligation to call in an expert to examine
trees,70 unless there is reason to believe that they may be unsafe. When a tree fell,
59
Alexander v Harrison (1967) 63 D.L. R. (2d) 383.
60
Holling v Yorkshire Traction Co [1948] 2 All E.R. 662, also Funnell v C.P. Ry. (1964) 45 D.L.R.
(2d) 481.
61
Hubbard v Pitt [1976] Q.B. 142.
62
Hill v New River Co (1868) 9 B. & S 303.
63
Gould v Birkenhead Corp (1910) 74 J.P. 105 (no contributory negligence was found).
64
Almeroth v Chivers Ltd [1948] 1 All E.R. 53.
65
De Teyron v Waring (1885) 1 T.L.R. 414, per Coleridge C.J.; Watson v Ellis (1885) 1 T.L.R.
317.
66
Pitman v Southern Electricity Board (1978) 76 L.G.R. 579.
67
Trevett v Lee [1955] 1 W.L.R. 113 applied in Perkins v Glyn [1976] R.T.R. ix Note (April)
(visibility along a highway in daylight was obscured by smoke coming from burning stubble in an
adjacent field and caused a collision); Clarke v J. Sugrue & Sons, The Times, May 29, 1959 (a piece
of rope left on the highway by independent contractors).
68
See Brown, ‘‘Trees: a Knotty Branch of the Law’’ 128 New L.J. 481.
69
Noble v Harrison [1926] 2 K.B. 332; Cunliffe v Banks [1945] 1 All E.R. 459; cf. Shirvell v
Hackwood Estates Ltd [1938] 2 K.B. 577. In Eire, see Lynch v Hetherton [1991] 2 I.R. 405.
70
e.g. the situation in Knight v Hext (1979) 253 E.G. 1227, CA.
[718]
HIGHWAYS 10–23
owing to a root disease which was not visible on an external examination, and
caused damage, the owner was not liable.71 When a motorcar on the highway was
damaged by the fall of a 130-year-old elm tree, which had never been lopped,
topped or pollarded, and the fall was caused by a long-standing disease of the
roots, undetectable on external examination, the owner was not liable.72
Conversely when a tree, which had been dying for some years and should have
been known to be dangerous to an ordinary landowner, fell and caused damage,
the owner was liable.73
A local authority which plants trees near the highway is under a duty to cut 10–21
them back when they grow over the highway so as to interfere with traffic. When
this was not done, liability followed when an overhanging branch broke a
window in a bus and injured a passenger.74 A local authority was also liable in
negligence to the occupiers of property which suffered subsidence as a result of
tree root dessication, caused by trees growing in the adjacent highway, where
they were not the highway authority, nor owner or occupier of the land on which
the trees grew, but provided an arboriculture service under an agency agreement
with the highway authority which included inspecting and maintaining the trees
in question.75
If, without negligence, a tree falls on to the highway, the occupier of the land 10–22
is not bound to light it or give warning of it, so that, should a motorist collide
with it, the occupier is under no liability.76 By way of contrast, if a local authority
in the course of road-widening operations leaves a tree, adjoining the highway,
in such a danger of falling that it is both ‘‘patent and imminent’’, liability will be
established for damage to users of the highway which is caused by its fall.77
Trench improperly filled in. If a trench is dug lawfully in the highway, for 10–23
example to lay gas, sewer or water pipes, it must be filled in so as not to be
dangerous to traffic, either by leaving a hollow78 or a soft-filled trench79 or by
creating a raised mound in the highway.80
71
Cunliffe v Banks [1945] 1 All E.R. 459.
72
Caminer v Northern and London Investment Trust [1951] A.C. 88. The test as stated by Lord
Normand therein was applied in Quinn v Scott [1965] 1 W.L.R. 1004 (the owner of a tree on a
highway who has means of knowing that it is diseased and may fall is liable in negligence if it falls
and causes an accident).
73
Brown v Harrison [1947] W.N. 191.
74
Hale v Hants and Dorset Motor Service Ltd [1947] 2 All E.R. 628. See too Ponting v Noakes
[1894] 2 Q.B. 281; Yetkin v Newham Borough Council [2010] EWCA Civ 776.
75
L.E. Jones (Insurance Brokers) Ltd v Portsmouth City Council, The Times, November 7, 2002,
CA.
76
Hudson v Bray [1917] 1 K.B. 520. Nor, apparently, to pay towards the costs of its removal, as was
provided by the Highway (Miscellaneous Provisions) Act 1961 s.9, and, now re-enacted in the
Highways Act 1980 s.150(4); Williams v Devon County Council (1966) 65 L.G.R. 119.
77
Mackie v Dumbartonshire County Council [1927] W.N. 247.
78
Hartley v Rochdale Corp [1908] 2 Q.B. 594.
79
Shoreditch Corp v Bull (1904) 90 L.T. 210.
80
Peachey v Rowland (1853) 13 C.B. 182. The decision that the employer was not liable for the
negligence of his independent contractor in creating such a danger in the highway must be considered
to be overruled by Penny v Wimbledon Urban District Council [1899] 2 Q.B. 72.
[719]
10–24 Other hazards caused by excavation. If a dangerous inequality in the

highway is created, so as to cause a vehicle which is being driven along the
highway to crash, the person creating the danger is liable.81 Where a pavement
is taken up and the paving stones are so laid as to give a false appearance of
safety to pedestrians, the persons taking up the pavement will be liable for any
injury thereby occasioned.82 Again, when a telegraph pole was moved in order to
allow the highway to be widened, and its hole was negligently filled in so that a
wagon was damaged as a result of one of its wheels sinking into the hole, not
only was the Post Office held liable for negligently filling in the hole, but the
highway authority was also liable for throwing the road open for public use
without first seeing that it was safe.83 Where a local authority, which was both the
highway and the sewer authority, employed a contractor to dig a trench and,
afterwards, the trench was improperly filled in, so that the claimant’s horse was
injured in consequence of the surface giving way, the authority was liable.84
10–25 In contrast, a local authority was not liable where the owner of houses,
pursuant to a notice served on him, dug a trench to connect his drains with the
main sewer and improperly filled it in : he was not its agent for doing the work.85
When a local authority, in the course of laying a new sewer, came across an old
service pipe, which it knew was likely to become leaky, but neither carried out
a repair nor laid down a new pipe, it was liable where, a few months later, the
pipe did so leak that the earth subsided and caused a van to overturn.86
10–26 Trench properly filled in but natural subsidence occurs later. Where a
trench has been dug in the highway and properly filled in but subsidence occurs
later, owing to shrinkage of the materials, the person responsible for digging the
trench may be held liable for damage thereby caused. In Newsome v Darton
Urban District Council,87 a local authority made a trench in the highway for the
purpose of executing drainage work. The trench was filled in properly and the
surface reinstated. A year after the work was finished, subsidence occurred,
which caused a cyclist to be thrown from his bicycle. It was held that the local
authority, having interfered with the surface of the road, was under a duty to
restore it to its original condition, which could only be fulfilled by making good
subsidence as and when it occurred. It was also negligent for the authority not to
discover and rectify the danger.
81
Goodson v Sunbury Gas Co (1896) 75 L.T. 251.
82
Drew v New River Co (1834) 6 C. & P. 754.
83
Thompson v Bradford Corp and Tinsley [1915] 3 K.B. 13.
84
Smith v West Derby Local Board (1878) 3 C.P.D. 423.
85
Steel v Dartford L.B. (1891) 60 L.J.Q.B. 256.
86
Cox v Paddington (Vestry) (1891) 64 L.T. 566.
87
[1938] 3 All E.R. 93. But cf. Hyams v Webster (1868) L.R. 4 Q.B. 138, which was not referred to
in the judgment, where a contractor, employed by the Metropolitan Board of Works, dug a trench in
the highway in connection with the laying of sewers and properly filled it in afterwards but it subsided
later on during the winter months. The contractor was held not liable to the claimant for the injury
to his horse, which had stepped in the subsided hole, on the ground that he was under no obligation
to make good any subsequent subsidence, occurring after the trench had been properly filled in and
the road reinstated.
[720]
HIGHWAYS 10–30
Laying stopcocks, etc. in highway. When the highway is broken up to lay 10–27
sewers, gas or water pipes or the like, there is a duty to make good. A
reinstatement must be provided which will, in normal circumstances, be
serviceable for a reasonable length of time. When a local authority, which was
also the water authority, laid a stopcock in the footpath of an unmade highway at
the level at which the footpath would eventually have been made up but which,
at the time, projected above the surrounding pathway, and, in order to level it off,
rammed in earth, which the rain constantly eroded and washed away, it was liable
to a person who tripped over the projection.88 On the contrary, where a stopcock
in the highway leaked and loosened some adjacent paving stones, as well as other
paving stones, some distance away, over which latter stones the claimant tripped
and fell, the Water Board, which had placed the stopcock in the highway, was not
liable: the leak was not the result of any negligence on the Board’s part and there
was no evidence that the Board either knew or ought to have known that the stone
over which the claimant tripped was loose.89
Defective gratings, etc. in highway. A person who puts a grating, skylight, 10–28
coal plate or other structure in either the footpath or any other part of the highway
is bound to maintain it so that it does not become a source of danger. Thus, when
a man walked over a cellar cover set into the pavement, and it collapsed, his
claim for damages succeeded.90 Such structures are usually part of a building and
so liability rests with the occupier although the owner may also be liable.91 If the
structure in question is not part of a building but is part of the highway, the
highway authority and not the occupier is responsible for its maintenance.92 If it
is neither part of a building nor part of the highway, then the person who placed
it in the highway is liable, unless it can be shown that the action was performed
under statutory or other authority exempting from liability in negligence.
Structure in existence before dedication of highway. At common law, if a 10–29

permanently fixed structure, such as a grating which formed part of the footpath,
was in existence before the dedication of the highway to the public, there was no
obligation on the occupier of premises adjoining the highway to repair it.
Accordingly, when a cellar flap projected above the street, so that a passer-by
stumbled over it and was injured at night, the occupier of the premises was held
not liable when it was proved that the flat was in existence before the high-
way.93
If the structure has been in existence as long as living memory, the inference 10–30
ought to be drawn that it was in existence at the time of the dedication, in the
absence of anything to suggest contrary inference.94 The mere fact that it has
been pulled down and rebuilt, as where stone steps, leading from the street to the
88
Withington v Bolton Borough Council [1937] 3 All E.R. 108; see also Rider v Metropolitan Water
Board [1949] 2 K.B. 378.
89
Longhurst v Metropolitan Water Board [1948] 2 All E.R. 834.
90
Heap v Ind Coope & Allsopp Ltd [1940] 2 K.B. 476.
91
See paras.10–37 et seq., below.
92
Robbins v Jones (1863) C.A. (N.S.) 221.
93
Fisher v Prowse (1862) 2 B. & S 770 at 779, 780.
94
Fisher v Prowse (1862) 2 B. & S 770 at 779, 780.
[721]
door of a house, were removed and replaced by new steps to the street’s newly
altered level,95 does not prevent the inference being drawn. Such structures
become part of the highway and the highway authority is responsible for their
maintenance and safety.
10–31 On the other hand, if a grating,96 coal plate97 or other movable structure is
either under the control of the occupier, or is the property of the owner of the
building to which it is appurtenant, it must be maintained in such a condition as
not to be dangerous to the public. ‘‘The person who is in possession of the
premises and who allows the coal-plate to be in a dangerous condition is the
person responsible to the public for any injury resulting for its being out of
repair.’’98 Although described as nuisance, there is a concurrent duty of care.
However, there is no absolute duty to make the structure safe, so that if, for
example, a grating breaks because of some latent defect or for any other reason
which is not the result of negligence, the occupier of the premises will not be
liable.99 Having said as much, this is an instance where the occupier can be liable
for the negligence of his independent contractors.100 Liability will also follow for
failing to keep the structure in a proper state of repair, even if the occupier did
not know that it was out of repair.101
10–32 When a structure in the highway does not form part of adjoining premises, an
occupier or owner of those premises is not liable. Thus, where a highway
authority formed a gutter in the highway, which was covered with removable iron
carriage plates, and the cost of the works was paid by the frontagers, it was held
that one of the latter was not liable to a person who caught her foot between two
of the plates. It made no difference that the frontager had been in the habit of
removing the plates for the purpose of cleaning the gutters.102 Again, when there
was a coal chute to the cellar of the defendant’s house and, owing to the level of
the pavement being raised, the local authority had left an access hole to it, the
defendant was not liable to a person who had tripped in the hole so left: there was
no duty on a frontager to maintain a highway which had been taken over by the
local authority.103 Likewise, where a local authority had raised a pavement and
reset in it a metal slab, covering a cellar hole, which slab was in good condition
before being reset but afterwards projected above the pavement, it was held that
the frontager was not liable, under the Public Health Acts Amendment Act 1890
s.35(1),104 to the claimant, who had tripped over the projection. He had not
created the nuisance and had no power or duty to abate a nuisance created by the
local authority.105 By way of distinction the frontager was held liable under this
95
Cooper v Walker (1862) 2 B. & S 770.
96
Gwinnell v Eamer (1875) L.R. 10 C.P. 658.
97
Pretty v Bickmore (1873) L.R. 8 C.P. 401.
98
Pretty v Bickmore (1873) L.R. 8 C.P. 401 at 404, per Bovill C.J.
99
See Barker v Herbert [1911] 2 K.B. 633; Tarry v Ashton (1876) 1 Q.B.D. 314; Lambert v Lowestoft
Corp [1901] 1 K.B. 590.
100
Tarry v Ashton (1876) 1 Q.B.D. 314.
101
Wringe v Cohen [1940] 1 K.B. 229; Heap v Ind Coope & Allsopp Ltd [1940] 2 K.B. 476.
102
Jones v Rew (1910) 79 L.J.K.B. 1030.
103
Horridge v Makinson (1915) 83 L.J.K.B. 1294.
104
This section is re-enacted in s.154 of the Highways Act 1980.
105
Penney v Berry [1955] 1 W.L.R. 1021.
[722]
HIGHWAYS 10–35
section where the purpose of the defective grating in the highway was to admit
light to the cellar of the defendant’s premises and the defendant knew of the
defective condition of the grating.106
A statutory duty. The Highways Act 1980107 s.180(6), imposes an obligation 10–33
on the owner or occupier or premises to keep every cellar-head, all gratings,
lights, coal holes and the covers of surface openings in good condition, but the
duty is not absolute. Someone alleging injury as a result of a breach of the
section, must still prove either negligence or nuisance in order to recover
damages. Hence, if a cover is broken, without the knowledge or fault of the
owner or occupier, and very shortly afterwards an accident occurs, as a result of
such breakage, liability may not be established.108 For the purpose of this section,
it does not matter whether the structure had been placed in the highway before
or after dedication.109
Structures laid in highway under statutory powers. Many structures are 10–34
put upon the highway in connection with the supply of gas, water and electricity,
and the provision of drains and sewers to adjoining properties. The work is
performed under statutory authority, and accordingly, reference should always be
made to the appropriate statute to see to what extent, if at all, the common law
liability is affected.110 Apart from any special statutory provisions, the duty is to
take reasonable care to install and to maintain the structures, so that they are not
dangerous to persons who use the highway with reasonable care.111
ILLUSTRATIONS
Where a water company laid a stopcock in the street, which was protected by 10–35
a guard box, a person who tripped over the lid of the box, which was out of
repair, could recover from the water company, which alone had power to break
up the street for the purpose of effecting repairs.112 Where a water company was
bound by statute to fix fire plugs into its mains and to keep them in proper order,
it was liable when one of the caps to the plugs was broken and, thereby, the
claimant’s horse was injured.113 Again, when a stopcock box was placed in the
106
Macfarlane v Gwalter [1959] 2 Q.B. 332, distinguishing Penney v Berry, above.
107
The Highways Act 1980 came into force on January 1, 1981, by virtue of s.345(2) and
consolidated the Highways Acts 1959 to 1971 and related enactments.
108
Scott v Green & Sons [1969] 1 W.L.R. 301, distinguishing Macfarlane v Gwalter [1959] 2 Q.B.
332, above.
109
Macfarlane v Gwalter [1959] 2 Q.B. 332, distinguishing Penney v Berry [1955] 1 W.L.R.
1021.
110
s.65 et seq. of the New Roads and Street Works Act 1991 set out general requirements as to
standards and safety to be observed by any undertaker executing street works. There is unlikely to be
a cause of action for breach of statutory duty where the Act imposes criminal sanctions, there being
no such right under the comparable provisions of the Public Utilities Street Works Act 1950 which
the 1991 Act replaced: see Keating v Elvan Reinforced Concrete Co [1968] 1 W.L.R. 722. The right
to sue for negligence is, however, preserved by s.95(1).
111
Stockings v Lambeth Waterworks Co (1891) 7 T.L.R. 460; Hendra v Chelsea Waterworks Co
(1891) 8 T.L.R. 101; Styles v East London Waterworks Co (1887) 4 T.L.R. 190; Strube v Southwark
and Vauxhall Water Co (1889) 5 T.L.R. 638.
112
Chapman v Fylde Waterworks Co [1894] 2 Q.B. 599.
113
Bayley v Wolverhampton Waterworks (1860) 6 H. & N. 241.
[723]
pavement, and, in order to make it level with the pavement, it was the practice
of the water company to put in a wad to fill the hole caused by the box, a person
who had caught her foot in the box, because no wad or an insufficient wad was
put in, could recover.114 In these cases, liability depended on the statutory duty
to maintain. Thus, where the appropriate statute imposed the obligation to repair
the box on the owner or occupier of the house and not upon the water company,
the latter was not liable.115
10–36 It has been held that a statutory undertaker was not negligent in relying on a
highway authority’s six-monthly road inspection, rather than inspecting its
manhole covers itself. But, it will be taken to have the same knowledge that it
would have had, if it had inspected these covers at the time when the local
authority had inspected its roads.116
10–37 If the work in question was properly maintained but became dangerous
sometime later on, owing to the wearing away of the surrounding highway, the
person whose duty it was to maintain the work was not liable.117 On the other
hand, if the highway has subsided owing to the negligent way in which the work
was originally done, the person who did the work will be liable.118 When a
grating and framework were laid so as to cause a considerable depression in the
road, but the work was done with due care and skill according to the usual
method employed at the time, it was held that the claim of an injured cyclist
failed, in the absence of evidence that either the road authority of the sewer
authority knew, or could have known, by the exercise of reasonable care, of the
existence of the defect.119
10–38 Interference by third party. If the lid of a valve-box or other cover which
ought to be maintained level with the surface of the road, is pulled up by the act
of a third party, the liability of the persons responsible for the maintenance of the
lid or cover to persons falling over it, depends on whether the nature of the lid
or cover is such that the act of the third party is one which ought reasonably to
have been anticipated. Accordingly, where a large cover was pulled up, thereby
causing a dangerous obstruction in the street, following ‘‘the malicious act of a
third person against which precautions would have been inoperative’’, the Water
Board which maintained the cover, was not liable.120 Conversely, where the lid
was a small one, which could be opened easily by a child, and the Water Board
knew that children were apt to tamper which such lids, a person who had tripped
114
Osborn v Metropolitan Water Board (1910) 102 L.T. 217; Rosenbaum v Metropolitan Water Board
(1910) 103 L.T. 284 at 739.
115
Batt v Metropolitan Water Board [1911] 2 K.B. 965; Mist v Metropolitan Water Board (1915) 84
L.J.K.B. 2041.
116
Reid v British Telecommunications, The Times, June 27, 1987, CA.
117
Moore v Lambeth Waterworks Co (1886) 17 Q.B.D. 462. cf. Withington v Bolton Borough Council
[1937] 3 All E.R. 108.
118
Hartley v Rochdale Corp [1908] 2 K.B. 594.
119
Papworth v Battersea Corp [1916] 1 K.B. 583.
120
Simpson v Metropolitan Water Board (1917) 15 L.G.R. 629.
[724]
HIGHWAYS 10–42
over such on opened lid in the roadway succeeded in an action for dam-
ages.121
Liability of local authorities for street works. If a grid, covering the 10–39
entrance to a sewer, was defective, so as to injure persons who were passing
along the highway, the sanitary authority was liable.122 Similarly, where a local
authority, to enable it to water the streets, had placed a box covered with an iron
flap in the footway, so that a pedestrian slipped and was hurt because the flap had
worn smooth, the authority was liable.123 The same result followed with regard
to a manhole.124 Where a local authority had built a barrel drain under the
highway, and the drain had fallen into disrepair, as a result of which a hole
appeared in the road, it was liable to a person who was injured as a result of
driving into the hole, which had been left open and unfenced.125
There is no liability, however, if reasonable care has been taken to erect or 10–40
maintain the work. Where a sewer was constructed with due care and of proper
materials and, owing to the mortar in one of the joints having been worked away
by rats, a cavity was formed below the surface of the road, which collapsed and
injured a horse using the highway, the owner’s action for damages failed. The
existence of the cavity was not known to and could not by the exercise of
reasonable care have been discovered by the sewer authority.126
Materials or equipment placed on highway. Even before the Highways 10–41

(Miscellaneous Provisions) Act 1961,127 the old common law rule, namely that
a highway authority was liable for misfeasance but not for nonfeasance, applied
only to disrepair of the road qua road. It did not extend to something such as a
grating128 placed in the road, or ridges in the road surface, when they were left
behind after the obliteration of the central white lines.129 Accordingly, a local
highway authority, which places and maintains traffic studs on a highway, must
use reasonable care to maintain them in a safe condition. Where such a stud had
become loose and dangerous, with the result that, some three weeks later, it shot
across the road after a motorist had driven over it, and knocked down a cyclist,
the authority was liable.130
A highway authority which became the owner of a tram track after it had been 10–42
abandoned by the undertakers, was liable to a cyclist who was injured owing to
121
Wells v Metropolitan Water Board (1937) 54 T.L.R. 104.
122
White v Hindley Local Board (1875) L.R. 10 Q.B. 219. This was so, even though in its capacity
as highway authority, it was under no liability for nonfeasance at that time.
123
Blackmore v Vestry of Mile End Old Town (1882) 9 Q.B.D. 451.
124
Winslowe v Bushey Urban District Council (1908) 72 J.P. 259.
125
Borough of Bathurst v MacPherson (1879) 5 App.Cas. 256 at 265. The decision was explained in
Municipal Council of Sydney v Bourke [1895] A.C. 433.
126
Lambeth v Lowestoft Corp [1901] 1 K.B. 590.
127
The provisions of which were repealed and re-enacted in the consolidating Highways Act 1980,
which came into force on January 1, 1981.
128
Connolly v Ministry of Transport (1965) 63 L.G.R. 372, CA.
129
Bright v Ministry of Transport [1971] R.T.R. 253. The dicta of Lord Denning M.R. (at 258D–E),
however, was not followed by the CA in Rider v Rider [1973] Q.B. 505.
130
Skilton v Epsom Urban District Council [1937] 1 K.B. 112.
[725]
the dangerous condition of the track, as a result of the failure to remove it and
make good the road surface.131A private law remedy exists for a breach of
statutory duty arising pursuant to s.25 of the Tramways Act 1870 whereby a the
upper most surface of the tracks must be ‘‘on a level’’ with the adjacent road
surface. 132
10–43 Things which are placed temporarily in the highway, whilst necessary work on
the highway is being carried out by the highway authority, do not give rise to
liability if they are clearly visible. So, where a highway authority painted a white
line in the highway and marked it with red flags, which had been set in tin cans
to show that it was newly painted, no liability was incurred when, in daylight, a
collision occurred because of a driver’s failure to see and to avoid driving into
them.133
10–44 If a drinking-fountain or similar structure is maintained in the highway,

reasonable care must be taken to make it safe. Thus, where a stone on a drinking-
fountain was loose so that, during a procession, it was dislodged by a person who
had climbed on the fountain to gain a better view of the procession, and struck
the claimant, the local authority was liable.134 Where a nine-year-old boy
attempted to leap-frog a bollard which was loose and wobbled causing the boy
injury the local authority, who had placed the bollard on the highway, was liable
in negligence for failing to maintain it.135 It was reasonably foreseeable that a
child would act as the claimant did.
10–45 If a local authority maintains a guard which is fitted with spikes to protect
something erected in the highway, it must put them in such a position that they
are not likely to be dangerous to persons using the highway with reasonable care.
Accordingly, where trees which had been planted in the highway were guarded
with iron spikes and the claimant collided with the spikes in the dark, during
wartime lighting restrictions, his action for damages succeeded. The highway
authority’s duty was held to be not merely to make the guards reasonable safe at
the date of their erection, but to continue to keep them reasonably safe.136
Similarly, when a market was held in the public street, near to a statue which was
surrounded by a spiked railing, on which the claimant’s cow became impaled,
liability was established on the ground that the place was not reasonably safe for
the standing of cattle.137
131
Simon v Islington Borough Council [1943] K.B. 188.
132
Roe v Sheffield City Council [2003] EWCA Civ 01.
133
Hughes v Sheppard (1940) 163 L.T. 177. But where a lamp-post became stranded near to the
centre of a busy road, following road widening operations, liability was established against the
highway authority, see Davies v Carmarthenshire County Council [1971] R.T.R. 112.
134
McLoughlin v Warrington Corp (1910) 75 J.P. 57. cf. O’Keefe v Edinburgh Corp, 1911 S.C.
18.
135
Shine v London Borough of Tower Hamlets [2006] EWCA Civ 852.
136
Morrison v Sheffield Corp [1917] 2 K.B. 866.
137
Lax v Darlington Corp (1879) 5 Ex.D. 28.
[726]
HIGHWAYS 10–48
Lights on dangerous objects. Where a local authority, pursuant to statutory 10–46

powers, puts some structure in the highway, which is dangerous if unlit,138 or
where a road is constructed in such a position or manner that it is dangerous if
unlit,139 there is a duty to take reasonable steps to prevent such works from being
a danger to the public.140 Where, however, the highway authority merely kept an
obstruction in the same state as when it took over responsibility for the highway,
a failure to light it did not amount to negligence.141 Lighting is an obvious means
of discharging the duty during the hours of darkness.142 So, where a post was put
in the middle of a footpath in order to prevent cattle from straying, and, in the
dark, a pedestrian collided with it, because it was not illuminated, an action
against the local authority succeeded.143 Again, when a local authority had made
a road, ending in an unfenced ravine, so that it was dangerous to traffic unless
sufficient lighting was maintained, it was liable for injuries sustained by a
motorist who drove into the ravine during the dark.144 Both the railway authority
and the local authority were liable for not lighting a wall, which, under statutory
powers, had been built across a road in a place where there had formerly been a
level-crossing and a cyclist collided with it at night.145
The local authority was liable when it had erected a tram refuge in the middle 10–47
of the street, with a bollard at one end, which was illuminated at night, but the
light failed, with the result that in the dark a motorist crashed into it.146 Where
an air raid shelter was usually lit by a red lamp, which became extinguished, and,
as a result, a cyclist collided with the shelter in the dark, the local authority was
liable, although the usual street lighting was illuminated. The existence of street
lighting did not absolve them from their duty to take reasonable care to give
warning to the public of the presence of the shelter, by lighting or other-
wise.147
Where the presence of lighting is relied on by a highway authority, the duty is 10–48
to take reasonable care to maintain it. If a light is out at the material time, an
evidential burden lies on the authority to show that it was not negligent in failing
to maintain the light.148 Failure to provide a sufficient number of night-watchmen
to guard road works so as to prevent the extinguishing or stealing of warning
lights by vandals may amount to negligence where vandalism is rife in the
138
For the lighting of vehicles parked on the roadside and builders’ skips, etc., see para.10–257,
below.
139
McClelland v Manchester Corp [1912] 1 K.B. 118.
140
Penny v Wimbledon Urban District Council [1899] 2 Q.B. 72.
141
Baxter v Stockton-on-Tees Corp [1959] 1 Q.B. 441.
142
Fisher v Ruislip-Northwood Urban District Council [1945] K.B. 584 at 593, per Lord Greene
M.R.
143
Lamley v Retford Corp (1891) 55 J.P. 133.
144
McClelland v Manchester Corp [1912] 1 K.B. 118.
145
Law v Railway Executive [1949] W.N. 172.
146
Polkinghorn v Lambeth Borough Council [1938] 1 All E.R. 339. cf. Brown v Lambeth Borough
Council (1915) 32 T.L.R. 61, where on somewhat similar facts a finding of no negligence on the part
of the defendants was upheld on appeal.
147
Whiting v Middlesex County Council [1948] 1 K.B. 162.
148
Polkinghorn v Lambeth Borough Council [1938] 1 All E.R. 339.
[727]
particular locality.149 Conversely, where there has been no such vandalism

previously, it was held that the defendants were under no duty to inspect their
excavation periodically during the night, which they had left properly lighted and
secured with barriers.150
10–49 The statutory provisions under which the works are maintained may provide
for absolute immunity, even though no care is taken. When a railway company
maintained gate posts at the entrance to one of their stations, under statutory
powers, which were construed as not imposing any duty to light them or
otherwise to obviate the danger that they caused, and a taxicab drove into them
when they were unlighted in wartime, the railway company was not liable.151
10–50 Statutory obligation to light. If a local authority has not itself created a
danger, by ‘‘putting posts in the highway without warning’’, by ‘‘placing traps
and dangers in the streets and not lighting them at night’’, or by making a road
‘‘with a sudden drop into the adjoining land below’’,152 its liability depends on
the statutory obligation to light. If it is under a duty to light, such as was imposed
by s.130 of the Metropolis Management Act 1855,153 it is bound to see that every
street is well and sufficiently lighted. Where there was a light some 70 feet from
the entrance to an archway, which was dimmed owing to war restrictions then in
force, and the driver of a van attempted to pass beneath the arch but was crushed
between his van and the arch, the authority was liable for its breach of statutory
duty in failing to light adequately.154
10–51 In contrast, where there is only a power and not an obligation to light, as under
s.161 of the Public Health Act 1875, there is no obligation on the local authority
to light any dangers, except those created by itself. So, the local authority was not
liable where, at night, after a light had been extinguished, the claimant fell over
a retaining wall into a street at a lower level.155 Nevertheless, where an authority,
with power to do so, exercises it by providing street lights to a certain standard,
it assumes an obligation to exercise reasonable care to maintain the lights to that
standard. In Farrell v Northern Ireland Electricity Service,156 the failure to
discharge such an obligation founded liability to a pedestrian who had fallen in
the street and sustained injuries, because the street light provided by the
defendants under statutory power, was not in working order.
(C) Dangers adjoining the highway
10–52 Liability for dangerous buildings adjoining highway. Buildings adjoining

the highway must be maintained in such a condition that they are not dangerous
149
Murray v Southwark London Borough Council (1966) 65 L.G.R. 145.
150
Lilley v British Insulated Callenders Construction Co (1968) 67 L.G.R. 224.
151
Great Central Ry v Hewlett [1916] 2 A.C. 511.
152
Scrutton L.J. in Sheppard v Glossop Corp [1921] 3 K.B. 132 at 149.
153
Repealed by the Local Law (Greater London Council and Inner London Boroughs) Order 1965 (SI
1965/540).
154
Carpenter v Finsbury Borough Council [1920] 2 K.B. 195.
155
Sheppard v Glossop Corp [1921] 3 K.B. 132.
156
[1977] N.I. 39.
[728]
HIGHWAYS 10–53
to users of the highway. Such buildings, if dangerous, constitute a public

nuisance and liability is based on that tort, rather than on negligence. The
occupier,157 and sometimes the owner,158 of the property is liable: (1) for creating
the nuisance; and (2) for continuing the nuisance, after knowledge or presumed
knowledge of its existence.159 A nuisance is created if there has been negligence
in maintaining buildings adjoining the highway, so that they get into a dangerous
state of disrepair. The fact that their disrepair causes damage to a person in the
highway, for example by a slate coming off a roof; or a brick dislodging from its
structure160; or the collapse of a wall,161 is itself evidence of negligence, which
throws the burden of disproving it on the occupier or the owner.162 Should that
burden be discharged, so that there is no finding of negligence in maintaining the
building, the question arises whether the owner or the occupier can be said to
have created the nuisance. On this point, the authorities are conflicting. It is
settled, however, that it is no defence to employ an independent contractor to
keep the building in repair, the employer being vicariously liable for the
independent contractor’s negligence.163
There is no liability if the danger is the result of a latent defect which was not 10–53
discoverable by the exercise of reasonable care and skill on the part of anyone,
or by ‘‘a secret and unobservable operation of nature, such as a subsidence under
or near the foundations of the premises’’.164 Again, it is a defence to show that
the danger was caused by a trespasser and was not continued after knowledge or
means of knowledge.165 Where the blast from an enemy bomb loosened a slate
which fell from the roof of a building in a high wind some 18 days later and
injured a person using the highway, the occupier was not liable, on it being found
that reasonable inspection of the roof did not disclose that the slate had been
loosened by the blast.166 On the other hand, liability is imposed for continuing a
nuisance after it was or ought to have been known. When there was an
accumulation of snow on the roof of a building and for four days the occupiers
did not remove it, so that it fell on the claimant as she was walking on the
157
See para.10–64, below. As regards an occupier’s vicarious liability for the negligence of an
independent contractor, see, generally, Ch.3, paras 3–172 to 3–203, above.
158
See paras 10–65 to 10–67, below.
159
Sedleigh-Denfield v O’Callaghan [1940] A.C. 880.
160
Kearney v London & Brighton Ry (1871) L.R. 6 Q.B. 759 (brick fell from a pier of a recently
constructed railway bridge).
161
Mullans v Forrester [1921] 2 Ir.R. 412. In Noble v Harrison [1926] 2 K.B. 332 at 343, Wright J.
said that he preferred the dissenting judgment of Moore J. that the liability of the occupier depended
on knowledge.
162
See, generally, Ch.6, paras 6–107 to 6–109, above. The burden of proof was discharged and the
defendant was held not liable in Palmer v Bateman [1908] 2 Ir.R. 393 (piece of guttering fell from
roof’s edge). In Wringe v Cohen [1940] 1 K.B. 229 at 242, the Court of Appeal expressed the opinion
that Palmer was wrongly decided.
163
Tarry v Ashton (1876) 1 Q.B.D. 314 (lamp, fixed to side of a house, fell and struck the claimant,
who was on the highway beneath).
164
Wringe v Cohen [1940] 1 K.B. 229 at 233; Lambert v Lowestoft Corp [1901] 1 Q.B. 590.
165
Wringe v Cohen, above; Barker v Herbert [1911] 2 K.B. 633.
166
Cushing v Peter Walker & Sons Ltd [1941] 3 All E.R. 693.
[729]
footpath, the occupiers were liable.167 Likewise, the occupier was liable when an
air raid on a Friday night broke the windows of an empty house and the damage
had remained unrepaired by the following Tuesday, when the claimant in the
highway was injured by a fall of glass.168
10–54 Dangerous fences and boundary walls. The obligation to maintain premises
adjoining the highway, so that they do not become dangerous to persons using it,
extends also to fences and boundary walls. If a person, in the ordinary and
reasonable use of the highway, leans upon or otherwise comes in contact with the
fence or wall, so that it moves away or collapses, thereby injuring him, such
person can recover damages from the occupier of the premises. So, where the
defendants occupied a cellar in which scene-painting was going on and, in order
to protect the area, a bar was put up, it was held that the claimant child, who had
been leaning against it, was entitled to recover for injuries sustained through
falling into the area when the bar gave way.169 Again, when a fence was abutting
the highway and a child of four, in order to play with some children on the other
side, climbed on it, whereupon it collapsed and injured him, his action for
damages succeeded.170
10–55 There is no liability, however, if the danger has been created by a trespasser,
provided that the failure to remove it did not amount to negligence. Accordingly,
when the defendant was the owner of a vacant house, the area railings of which
had been broken by boys who had been playing football in the street, and the
claimant, a boy aged four, while clambering along the railings fell into the area
and was injured, his action failed. The defendant was held not liable on a finding
of fact that he had used reasonable care to prevent the premises from becoming
dangerous to persons using the highway, and that he neither knew nor would have
known, by the exercise of reasonable care, of the break in the railings.171
10–56 A fence or a wall does not become dangerous merely because persons on the
highway may climb up and fall off it. So, where a perfectly safe wall adjoined the
highway, the presence of a heap of soil which enabled a boy of seven to climb
on top of the wall from the highway imposed no liability on the owners and
occupiers of the wall when the boy hurt himself by falling off it.172
10–57 Great North Eastern Railway v Hart173 was a claim that arose from a
catastrophic rail accident involving the collision of railway trains and a motor
167
Slater v Worthington’s Cash Stores Ltd [1941] 1 K.B. 488. See ‘‘Damage from Frost and Snow’’
113 L.J. 179.
168
Leanse v Egerton [1943] K.B. 323.
169
Jewson v Gatti ((1886) 2 T.L.R. 441.
170
Harrold v Watney [1898] 2 Q.B. 320 at 322. A. L. Smith L.J. said: ‘‘A rotten fence close to a
highway is an obvious nuisance. If I were on the highway and wanted to tie up my boot, or got tired
and leaned against the fence, should I not have been lawfully using the highway? The present case
is a stronger one.’’ Also see similar accident and decision in Robertson’s Tutor v Glasgow Corp, 1950
S.C. 502 (wall adjacent to footpath collapsed, when the eight-year-old pursuer climbed up on to
it).
171
Barker v Herbert [1911] 2 K.B. 633. It was also held that even if the defendant were responsible
for the nuisance, the injury was not the direct result of the nuisance.
172
Liddle v Yorkshire (North Riding) Councy Council [1934] 2 K.B. 101.
173
[2003] EWHC 2450.
[730]
HIGHWAYS 10–60
vehicle. The defendant had been driving a motor vehicle on a motorway when he
fell asleep. The vehicle drifted across the carriageway and went down an
embankment onto a railway which ran beneath the motorway. There was a crash
fence by the bridge which carried the motorway over the railway but it was not
long enough to prevent the motor vehicle leaving the motorway and ending up on
the railway. It was held that a duty of care was owed by the authority in relation
to the design of the fence but, on the facts, negligence was not established.
Dangerous premises. If premises by the side of the highway are so 10–58

constructed as to be dangerous174 to users of the highway, they are a nuisance. In
such a case, the state of repair is immaterial, because it is the very fact of their
presence which constitutes the danger. So, where a barbed wire fence was
maintained to fence off the defendant’s premises from the highway, the claimant,
who tore his coat upon it, was entitled to recover.175 Where, in front of a shop
window, there was an 18-inch-high wall, on the top of which was a row of spikes,
and the claimant, a girl aged five, was found injured under circumstances
consistent with her having fallen upon such spikes, it was held that they were a
nuisance and the owners of the shop were liable.176
Dangerous excavations adjoining highway. The occupier of land is liable if 10–59

he makes or continues an excavation on his own land, which is a danger to
persons who are using the highway. Where an unfenced area within the curtilage
of a house was at a lower level than adjacent footpath and the claimant, while
walking along the street, fell in and was injured, the occupier was liable, despite
the premises being in the same condition as they were when he went into
possession.177 Where a pedestrian fell into an unfenced hoist-hole, some 14
inches from the highway, the occupiers were liable on the ground that they
‘‘would be liable for a nuisance to the highway, if the excavation was so near to
it that a person lawfully using the way, and using ordinary caution, accidentally
slipping might fall into it’’.178 It was no defence that the builder who made the
hole might also be liable.
ILLUSTRATIONS
The occupier was under no liability: where cattle had strayed from the 10–60
highway and fallen into a pit, about 36 feet from the highway179; where a man
174
See further, Ch.8, paras 8–161 to 8–171, above.
175
Stewart v Wright (1893) 9 T.L.R. 480.
176
Fenna v Clare & Co [1895] 1 Q.B. 199. See also Morrison v Sheffield Corp [1917] 2 K.B. 866
(iron spiked guard placed around a tree). Conversely, where a horse spiked itself, see Gibson v
Plumstead Burial Board (1897) 13 T.L.R. 273. Lopes L.J. said that ‘‘the law no doubt was that if a
person erected on his own land anything calculated to interfere with the use of a highway, what he
did was a nuisance.’’ But he could not agree with the suggestion that ‘‘the erection of this iron fence,
not with spikes jutting out into the road, but with perpendicular spikes, amounted to a nuisance’’. See
also Morton v Wheeler, The Times, February 1, 1956.
177
Coupland v Hardingham (1813) 3 Camp. 398. Similarly, see Barnes v Ward (1850) 9 C.B. 392,
where Maule J. said: ‘‘The defendant, in having made that excavation, was guilty of a public
nuisance, even though the danger consisted in the risk of accidentally deviating from the road.’’
178
Hadley v Taylor (1865) L.R. 1 C.P. 53 at 55, per Erle C.J.
179
Blyth v Topham (1607) Cro.Jac. 158.
[731]
wandered from the highway and fell into a reservoir, some little distance from the
highway180; where a man walked off the towpath, adjoining a canal, went across
a 24-foot-wide strip of land and fell into the canal, which was unfenced181; where
a boy climbed up a height of three-and-a-half feet to an unfenced aperture in a
wall and put his head through, when he was injured by the descent of a lift182;
when a man at night and in a fog left the highway and fell into an unfenced dock
47 feet away183; when a man at night got on to a private road, from which he fell
and was killed.184
10–61 Further, there is no liability on the ground of nuisance where a person suffers
damage after leaving the highway.185 Thus, where the defendants’ shops were
separated from the highway by a forecourt, in which there was a stopcock about
two feet from the highway, projecting above the surface, and upon the claimant
going to one of the shops, he tripped over the stopcock, the defendants were not
liable, as the obstruction was not on the highway, so that it could not be a
nuisance.186 The claimant’s remedy was to have sued the tenant of the shop, who
was the occupier.187
10–62 Natural dangers and builder’s skips. The occupier of land is under no duty
to fence a natural danger, such as a stream, from the highway.188 Further, where
the surface of the highway has been raised above the level of the surrounding
land, so that a dangerous drop has been left, the occupier of the land is under no
obligation to erect a fence to prevent persons travelling along the highway from
falling down it. However, the highway authority would be liable in such
circumstances.189 The provisions of the Highways Act 1980 Pt IX,190 regulate
any works carried out in or near the public highway, including the control of
builder’s skips.191
10–63 Dangers caused by diversion of highway. When a highway is diverted,

protection must be provided at the point of diversion in order to prevent persons
using the highway from going astray, since it may be implied otherwise that the
original highway can be used safely.192 So, where a railway company, in
constructing their railway, diverted a footpath into a road but failed to indicate the
point of the diversion, as a result of which a person left the footpath, got on to
180
Hardcastle v South Yorkshire Ry (1859) 4 H. & N. 67, per Pollock C.B., Carshalton Urban
District Council v Burrage [1911] 2 Ch.133.
181
Binks v South Yorkshire Ry (1862) 3 B. & S 244.
182
Stiefsohn v Brook (1889) 53 J.P. 790.
183
Casely v Bristol Corp [1944] 1 All E.R. 14.
184
Melville v Renfrewshire County Council, 1920 S.C. 61.
185
A claimant cannot recover damages, even if the nuisance does substantially adjoin the highway,
unless he was actually using the highway when his accident happened: Bromley v Mercer [1922] 2
K.B. 126.
186
Jacobs v London County Council, above, overruling Owens v Scott [1939] 3 All E.R. 663.
187
See Ch.8, generally.
188
Morrison v L.M.S. Ry, 1929 S.C. 1.
189
Nicholson v Southern Ry [1935] 1 K.B. 558.
190
See also Myers v Harrow Corp [1962] 2 Q.B. 442.
191
Highways Act 1980 Pt IX. by ss.139–140.
192
McClelland v Manchester Corp [1912] 1 K.B. 118; Coleshill v Manchester Corp [1928] 1 K.B.
776.
[732]
HIGHWAYS 10–66
the railway line and was injured, the railway company was liable.193 Where a
tunnel under an archway was substituted for a level crossing, so that a lad driving
a van was crushed under the archway, the local authority which had built the
tunnel, was liable.194
Liability of occupier. Liability for defective buildings and fences adjoining 10–64
the highway, as well as all defective coal plates, gratings and other structures in
the highway, is treated as if it were on the occupier. The rule is that the occupier
is always liable,195 apart from cases where the defect has been caused by the
wilful act of a third person and there has been no negligence on the occupier’s
part in remedying the defect.196 Indeed, the occupier is liable, even if the defect
existed before occupation began. The occupier has continued the nuisance and it
was his ‘‘fault to contract for an interest in land on which there was a nui-
sance’’.197
Liability of owner. The owner of the premises is liable if he has contracted198 10–65
with the occupier to do the repairs. This was decided in Payne v Rogers,199 where
the claimant was injured by his leg slipping through a hole in the pavement into
a vault or cellar, as a result of some plates or bars which went under the
pavement, being out of repair. In such circumstances the owner is liable whether
he has actual knowledge of the state of disrepair or not.200
Further, the owner is liable if he has let the premises, knowing them to be in 10–66
a ruinous or dangerous condition without taking any steps to provide a remedy.
Where, therefore, houses were demised with chimneys in a dangerous condition
so that they fell upon the neighbouring building and damaged it, the lessor was
held liable.201 At one time it was held that a lessor could avoid liability by
obtaining from his lessee a covenant to repair202 but this proposition was
criticised by the Court of Appeal in Brew Bros Ltd v Snax (Ross) Ltd.203
193
Hurst v Taylor (1885) 14 Q.B.D. 918. See also Evans v Rhymney Local Board (1887) 4 T.L.R.
72.
194
Bedman v Tottenham Local Board (1887) 4 T.L.R. 22. See also Law v Railway Executive [1949]
W.N. 172, para.10–46, above.
195
Wilchick v Marks and Silverstone [1934] 2 K.B. 56 at 68. See also para.10–33, above, in relation
to the statutory duty.
196
Barker v Herbert [1911] 2 K.B. 633.
197
Roswell v Prior (1701) 12 Mod. 635.
198
A landlord’s covenant may be implied by statute, e.g. the Landlord and Tenant Act 1985 s.11, see
further Ch.8, para.8–122, above.
199
(1794) 2 H.Bl. 350. This case was approved in R. v Pedly (1834) 1 A. & E. 822; Todd v Flight
(1860) 9 C.B.(N.S.) 377; Nelson v Liverpool Brewery Co (1877) 2 C.P.D. 311.
200
Wringe v Cohen [1940] 1 K.B. 229, disapproving the opinion of Goddard J. in Wilchick v Marks
and Silverstone [1934] 2 K.B. 56 at 66; Heap v Ind Coope & Allsopp Ltd [1940] 2 K.B. 476.
201
Todd v Flight (1860) 9 C.B.(N.S.) 377. There is no reletting each week or month in a weekly or
other periodic tenancy, and consequently a landlord is not liable, under this principle, for any damage
through disrepair existing at the beginning of any week or month of the tenancy after the beginning
of the letting. Gandy v Jubber (1864) 5 B. & S 78; Bowen v Anderson [1894] 1 Q.B. 164.
202
Pretty v Bickmore (1873) L.R. 8 C.P. 401; Gwinnell v Eamer (1875) L.R. 10 C.P. 658.
203
[1970] 1 Q.B. 612.
[733]
10–67 The owner is also liable where he reserves the right to enter the premises for
the purpose of repair, without taking any covenant from the occupier to repair.204
Where a claimant was injured by a window shutter, which fell while being closed
by the tenant’s son, both landlord and tenant were liable, in the absence of an
agreement between them as to repairs: the landlord because he had power to
repair and knowing of the disrepair did nothing; the tenant because he was under
a duty to avoid injury to members of the public passing his house.205 The position
is the same when the owner, while not expressly reserving the right to enter and
do repairs, in fact does them, there being in such a case an implied consent to
entry for that purpose.206
10–68 Actions of third parties. There is no liability upon the owner of premises
simply because there are features of the property, such as cellar flaps, plates or
doors which are so close to the highway that if someone opens them up suddenly
and carelessly, a user of the highway will be injured.207 Where premises had a
door which opened outwards and flush with the highway, the owner was not
liable to a person who was injured by the door being opened suddenly, when
there was no evidence that it was opened by him or anyone for whose acts he was
responsible.208 On the other hand, the occupier might very well have been liable
if the door was opened by a lawful visitor.
10–69 In the event of cellar flaps or other structures in the highway being interfered
with so as to render them dangerous, liability is primarily upon the person who
interfered with them, although the occupier can also be liable in certain
circumstances. If a cellar flap is opened so as to leave a hole in the highway or
an obstruction, over which a pedestrian trips and falls, liability lies with the
person who opened the flap or caused it to be opened. If someone employs an
independent contractor to do work which necessarily involves the creation of
such a danger, he is liable. So, where the lessee of refreshment rooms at a railway
station employed an independent contractor to deliver coals through a hole into
the coal cellar, he was held liable for damage caused to a passenger who had
fallen into the cellar owing to its being insufficiently guarded.209 Unsurprisingly
there is concurrent liability upon the independent contractor.210
204
Wringe v Cohen [1940] 1 K.B. 229.
205
Wilchick v Marks and Silverstone [1934] 2 K.B. 56.
206
Heap v Ind Coope & Allsopp Ltd [1940] 2 K.B. 476, followed in Mint v Good [1951] 1 K.B. 517,
where a boy on the highway was injured by the fall of a wall separating the highway from the
forecourt of a house let on a weekly tenancy. There was no right to enter to do repairs reserved to the
landlord, who in fact did the repairs, but the landlord was held liable. Pretty v Bickmore (1873) L.R.
8 C.P. 401, was doubted by Denning L.J., but see 67 L.Q.R. 148 and 14 M.L.R. 348.
207
De Boos v Collard (1892) 8 T.L.R. 338.
208
Evans v Edinburgh Corp [1916] 2 A.C. 45.
209
Pickard v Smith (1861) 10 C.B.(N.S.) 470. Although the accident happened in a railway station,
‘‘no sound distinction in this respect can be drawn between the case of a public highway and a road
which may be and to the knowledge of the wrongdoer probably will in fact be used by persons
lawfully entitled to do so.’’
210
Whiteley v Pepper (1876) 2 Q.B.D. 276. Generally, see Ch.3, above, paras 3–172 to 3–203, above,
and Daniel v Rickett Cockerell & Co [1938] 2 K.B. 322 (damages were apportioned as to ninety per
cent to the coal merchant and ten per cent to the customer).
[734]
HIGHWAYS 10–73
If work does not involve an interference with the highway, an employer is not 10–70
liable. Thus, where a brewery company employed a contractor to deliver beer to
a public house and the occupier opened the cellar flaps on the highway, which
were left unguarded, it was held that the occupier but not the brewery company
was liable for damage suffered by the claimant who was passing by.211 The
ground of the decision was that the contractor was not employed to interfere with
the highway. Nevertheless, this decision seems to be inconsistent with Pickard v
Smith212 and Whiteley v Pepper,213 since liability on the part of the occupier does
not prevent the employer of the independent contractor from being liable, too.
A canal company, with statutory authority to build a swivel bridge over a 10–71
canal, would be liable to persons falling into the canal when the bridge was open,
if no fence or warning were provided. This is because they created a danger in
the highway, by leaving an unfenced opening, whenever the bridge was swung
open for canal traffic.214
Where a structure is interfered with by a third party, without the knowledge or 10–72
consent of the occupier, the occupier is not liable if he has made the structure
reasonably secure, so that it will be safe unless intentionally, as opposed to
accidentally, interfered with. Even where it has been intentionally interfered with,
the occupier will be liable if it is the sort of interference which should have been
anticipated as likely to occur.215 A cellar plate, which was left so insecurely that
any boy, poking about with a stick, could disturb it thereby making it loose, was
held to be a danger, which imposed liability on the occupier where the user of the
highway was injured as a result.216
A sun blind securely fixed in front of a shop does not give rise to liability on 10–73
the occupier if it is pulled down by persons jumping up at it while they are
passing. The occupier is not bound to fasten it so securely as to bear the weight
of two men, jumping up at it.217 On the same principle, a water board was not
liable for damage, caused through the act of a third person, in raising the lid of
a water-box in the highway, in the absence of a finding that the occurrence could
211
Wilson v Hodgson’s Kingston Brewery Co (1915) 85 L.J.K.B. 270 at 272, per Avery J.: ‘‘Here the
contractor was not employed in any sense to open the flap of this cellar. It was quite consistent with
the contract of the contractor with the brewery company that the occupier of the house should himself
have pushed back the flap, and if he did so and left it open, it was clearly his duty to see that it was
not dangerous to the public using the highway.’’
212
(1861) 10 C.B.(N.S.) 470.
213
(1876) 2 Q.B.D. 276.
214
Manley v St Helens Canal Co (1858) 2 H. & N. 840.
215
Daniels v Potter (1830) 4 C. & P. 262 ; Hughes v Macfie, Abbott v Macfie (1863) 2 H. & C.
744.
216
Braithwaite v Watson (1889) 5 T.L.R. 331. To the same effect is Findlay v Angus (1887) 14 R. 312
(shutter fastened by bolt fell when meddled with by children, occupier liable) and Wells v
Metropolitan Water Board [1937] 4 All E.R. 639. See also para.10–38, above.
217
Wheeler v Morris (1915) 84 L.J.K.B. 1435, 1437. Per Cozens-Hardy M.R.: ‘‘The liability in a case
of this kind is not a liability of insurance or warranty that the blind will never come down. The utmost
which can be put against the shopkeeper is that he, as occupant, is bound to take such reasonable
precautions as a reasonable man would exercise to avoid the result of an accident which might be
reasonably foreseen.’’
[735]
or ought to have been foreseen and provided against by taking reasonable pre-
cautions.218
10–74 Occupier continuing a danger, created by third party. Although a third

party may have interfered with a structure in the highway for which an occupier
is responsible, so as to create a danger, the occupier will be liable if the the
danger is allowed to continue. Where, for example, a stranger opens cellar flaps,
the occupier will not be liable unless he permits them to remain open after he
knew or ought to have known that they were open. His duty is to shut or guard
them within a reasonable time after knowledge which he actually has or ought to
have under the circumstances.219 Where a wall on the defendant’s land was
knocked down by trespassers, so that the bricks were, to his knowledge, scattered
over the highway, the defendant was liable to the user for injury caused.220
(D) Miscellaneous dangers in the highway
10–75 Dangerous machines left in highway. Liability in respect of vehicles left

unattended in the highway is discussed elsewhere.221 In the case of adults,
liability for other dangerous objects left in the highway depends upon the rules,
already discussed, in relation to obstructions.222 The duty towards a child is the
same as where the child is a lawful visitor to premises.223
10–76 Vehicles on premises adjoining highway. When vehicles and machines are
left on premises adjoining the highway, they must be left in such a position and
in such a manner as not to be dangerous to highway users. If they are safe, the
general rule is that the owner is under no liability when the acts of a third party
make them unsafe. So, where boys trespassed on to a railway line and released
the brakes of trucks parked on an incline in a siding, causing them to run on to
the highway, injuring the claimant, his action against the railway company
failed.224 On the other hand, the owner of a vehicle will be liable if he knows
there is a real and not just a possible risk of it being interfered with in the place
218
Mileham v Marylebone Corp (1903) 67 J.P. 110; cf. Wells v Metropolitan Water Board [1937] 4
All E.R. 639.
219
Barker v Herbert [1911] 2 K.B. 633 at 642, per Fletcher Moulton L.J.: ‘‘The gravamen is the
continuance of the nuisance and not the original causing of it.’’
220
Silverton v Marriott (1888) 52 J.P. 677, per Field J.: ‘‘If an owner of land becomes aware of
something on his premises, though through the act of a stranger, which is a source of risk and danger,
a duty arises on him to guard against that risk and danger. There is a duty on him to keep and maintain
his premises in such a condition that they shall not be injurious to the public at large using
them.’’
221
paras 10–253 to 10–257, below.
222
paras 10–17 to 10–19, above. Further, see Clark v Chambers (1878) 3 Q.B.D. 327 at 339, per
Cockburn C.J.: ‘‘A man who leaves in a public place, along which persons, and amongst them
children, have to pass, a dangerous machine which may be fatal to anyone who touches it, without
any precaution against mischief, is not only guilty of negligence, but of negligence of a very
reprehensible character, and not the less so because the imprudent and unauthorised act of another
may be necessary to realise the mischief to which the unlawful act or negligence of the defendant has
given occasion.’’
223
See Ch.8, paras 8–48 to 8–57, above.
224
McDowall v G.W. Ry [1903] 2 K.B. 331.
[736]
HIGHWAYS 10–78
he has left it, unless he takes reasonable precautions to guard against that
risk.225
Dangerous activities adjacent to the highway. The duty to take care to avoid 10–77
doing anything which is likely to injure persons on the highway is only part of
the wider duty to take reasonable care in doing, either on or adjoining the
highway, anything likely to cause danger to persons who are passing along the
highway. Where a telephone company was laying telephone wires in the street
and had employed a contractor to help, the company was held liable when a
lamp, used by one of the contractor’s servants, exploded owing to the failure of
the safety valve.226 Similarly, where a person passing along the highway was
injured by the defendants’ blasting operations at their quarry nearby, liability was
established. It was their duty to keep the effects of the blasting on their own
land.227 Also, where the claimant, who was using the pavement, slipped on fat
from a butcher’s shop, whether as a result of chopping done by the butcher or by
it being carried on a customer’s shoe, the butcher was liable, both in nuisance and
in negligence. He should have foreseen the likelihood of fat from the shop getting
on to the pavement.228 When clouds of steam and smoke were emitted from coke
ovens, on adjoining land, and engulfed the highway but no warning was given to
approaching traffic, the person responsible was liable for a highway collision,
caused by the resultant loss of visibility.229 A local authority which failed to clear
rubbish from a burning tip on land adjoining the highway, so as not to aggravate
an industrial dispute with employees who were on strike, was not excused
thereby from liability when the claimant was injured upon being struck by a
fragment from an exploding aerosol can.230
Causing ice on highway.231 When a van was washed in the street with the 10–78
result that a sheet of ice formed, on which the claimant’s horse slipped and was
injured, it was held that, although the defendant’s act in washing the van in the
highway was wrongful, the damage was too remote.232 Although this decision
could not stand after Polemis Re233 was decided, it was restored with approval by
the Judicial Committee of the Privy Council in The Wagon Mound (No.1).234
225
See, per Vaughan Williams L.J. at 337.
226
Holliday v National Telephone Co [1899] 2 Q.B. 392. At 399, Lord Halsbury said: ‘‘The telephone
company, by whose authority alone these works were done, were, whether the works were done by
the company’s servants or by a contractor, under an obligation to the public to take care that persons
passing along the highway were not injured by the negligent performance of the work.’’
227
Miles v Forest Rock Granite Co (1918) 34 T.L.R. 500.
228
Dollman v Hillman Ltd [1941] 1 All E.R. 355.
229
Holling v Yorkshire Traction Co [1948] 2 All E.R. 662 which was followed in Rollingston v Kerr
& Co [1958] C.L.Y. 2427. See also Funnell v CPR & Bowden (1964) 45 D.L.R. (2d) 481, where dense
clouds of sand and dust blew across the highway as a result of the construction activities taking place
on the adjoining land so that liability was established.
230
Woolfall v Knowsley Borough Council, The Times, June 26, 1992, CA.
231
For the duty of highway authorities regarding the formation of ice and snow on highways see
para.10–07, above.
232
Sharp v Powell (1872) L.R. 7 C.P. 253.
233
[1921] 3 K.B. 560.
234
[1961] A.C. 388, at 418: ‘‘The judgment of Bovill C.J. is particularly valuable and interesting.’’
See Ch.5, paras 5–08 to 5–14, above, where the Wagon Mound and Re Polemis decisions are dis-
cussed.
[737]
10–79 However, in a somewhat similar case, when a pedestrian slipped on the

pavement outside a garage yard, on ice formed as a result of the washing of
motorvehicles in the garage on a November night, the garage proprietors were
liable. They should have anticipated the possibility of the onset of a sudden frost
and taken precautions to prevent the formation of ice on the pavement, despite
the fact that it was not freezing when the vehicles were being washed.235 Again,
where water from a burst service pipe caused a pool of water to collect in the
roadway, which lay unheeded for three days, before a frost occurred and formed
ice upon which a motor car skidded, knocked down and killed a man, the water
authority was negligent because it had failed to take prompt action to attend to
the leak in order to prevent the road from becoming dangerous to traffic.236
10–80 Acid on highway. When a carboy of sulphuric acid fell off the back of a
moving lorry and broke causing a pool of acid to be formed in the road and a
motorcyclist, thinking it was water, attempted to ride through it, skidded and was
burnt by the acid, the lorry driver was liable for allowing the acid to remain on
the road for half an hour, after he knew that it was there, without giving warning
of the danger.237
10–81 Sport causing danger on the highway. Where a hole on a golf course was
placed adjoining the highway, and players regularly drove out of bounds on to the
road, the club was liable in nuisance to a highway user who was injured.238 A
player who struck the golf ball would also be liable if he failed to take reasonable
care in playing his ball.239 The playing of cricket on a ground, from which cricket
balls were hit out of the ground on rare occasions only, was not a nuisance and
the club was not liable to a person who was injured by a ball in the high-
way.240
10–82 Vehicles damaging the highway. The use of a very heavy vehicle, for
example a steamroller241 or traction engine,242 of such weight as to break gas or
water pipes, which are laid properly and at sufficient depth in the highway, is
actionable on the ground that ‘‘an action lies for an injury to property, unless such
235
Lambie v Western S.M.T. Co Ltd, 1944 S.C. 415.
236
Manchester Corp v Markland [1936] A.C. 360. See also Shepherd v Midland Rail Co (1872) 25
L.T. 879 (water trickled from a waste pipe at a railway station on to the platform and froze. The
claimant, a passenger, stepped upon the ice, fell and was injured. The court held the defendant railway
company liable for negligence in not removing the ice); Osborne v London and North Western Rail
Co (1888) 21 Q.B.D. 220 (the claimant was injured by falling on steps leading to the defendant’s
railway station. The steps were worn and hollowed, and a light layer of snow which had been trodden
down and formed ice had made them slippery).
237
Pope v Fraser (1939) 55 T.L.R. 324.
238
Castle v St Augustine’s Links (1922) 38 T.L.R. 615.
239
See Cleghorn v Oldham (1927) 43 T.L.R. 465. Compare Potter v Carlisle and Cliftonville Golf
Club Ltd [1939] N.I. 114.
240
Bolton v Stone [1951] A.C. 850. But see Miller v Jackson [1977] Q.B. 966 (cricket balls hit out
of the grounds into the gardens of adjacent houses on fairly frequent occasions); Hilder v Associated
Portland Cement Manufacturers Ltd [1961] 1 W.L.R. 1434 (footballs regularly kicked out of
field).
241
Gas Light and Coke Co v St Mary Abbott’s Kensington (1885) 15 Q.B.D. 1; Driscoll v Poplar
Board of Works (1897) 14 T.L.R. 99.
242
Chichester Corp v Foster [1906] 1 K.B. 167.
[738]
CARRIERS 10–86
injury is expressly authorised by statute, or is, physically speaking, the necessary

consequence of what is so authorised’’.243 When a vehicle on the highway
dislodged a paving stone on the footpath, so that a pedestrian tripped over it, the
driver of the vehicle was liable.244
2.—CARRIERS
(A) Generally
Introduction. A person, who undertakes, either for reward or gratuitously, to 10–83

carry another person in a vehicle, is liable to that other for damage caused by
negligence. The carrier’s duty may be considered in connection with: (i) the
carriage of a passenger; and (ii) the safety of the vehicle. Thereafter this section
will consider negligence in its various forms as it has arisen in relation to
particular modes of carriage.
Duty as to carriage. The duty as to carriage is to use reasonable care and skill 10–84
for the safety of passengers, during such carriage. The carrier is not an insurer of
the safety of the passenger. The law was clear as long ago as 1825, having
emerged with particular reference to the duty of stage-coach proprietors.245
The duty extends to the luggage and belongings of the passenger246 and the 10–85
duty is the same, whether the carriage is undertaken for reward or gratuitously.247
Liability is not limited to responsibility for gross negligence.248 In O’Connor v
British Transport Commission,249 the defendants were not liable for the death of
a young child, who had fallen out of a corridor-type guard’s van, after he had
opened the door with its handle specially provided on the inside for the guard’s
use. The claimant failed to prove that there was any failure on the part of the
defendants to take all due care to carry their passengers safely. The Court of
Appeal held that the defendants were entitled to assume that children of tender
years would be accompanied by persons who would take due care in looking
after them.
Duty as to the safety of the vehicle. The primary duty as to the safety of a 10–86
vehicle,250 arises under any relevant contract, such as for the vehicle’s hire, or for
243
Gas Light and Coke Co v St Mary Abbott’s Kensington (1885) 15 Q.B.D. 1, per Lindley L.J. at
5.
244
Conelly v West Ham Borough Council (1947) 62 T.L.R. 739.
245
Crofts v Waterhouse (1825) 3 Bing. 319.
246
Vosper v G.W. Ry [1928] 1 K.B. 340; Houghland v R.R. Low (Luxury Coaches) Ltd [1962] 1 Q.B.
694; Mannix v N.M. Paterson & Sons [1965] 2 Lloyd’s Rep. 108.
247
Lygo v Newbold (1854) 9 Ex. 302 at 305, per Parke B: ‘‘A person who undertakes to provide for
the conveyance of another, although he does so gratuitously, is bound to exercise due and reasonable
care.’’ See also Lewys v Burnett and Dunbar [1945] 2 All E.R. 55; Hyman v Nye (1881) 6 Q.B.D. 685
at 687.
248
Austin v G.W. Ry (1867) L.R. 2 Q.B. 442; Harris v Perry & Co [1903] 2 K.B. 219; Karavias v
Callinicos [1917] W.N. 323. As to ‘‘gross negligence’’ see Ch.1, para.1–15, above.
249
[1958] 1 W.L.R. 346.
250
Which includes for these purposes, vehicles, vessels or aircraft.
[739]
the carriage for reward of persons or goods, or by virtue of any contract of

bailment. The provisions of the contract, whether express or implied, are
construed by reference to the common law. In many instances there will be a
concurrent duty to similar effect in tort. It is specifically provided by the
Occupiers’ Liability Act 1957251 that it does not affect the common law duty. In
the absence of express agreement, the duty implied will be to take reasonable
care to provide a safe vehicle. Carriers, for example, are not under an absolute
obligation to provide a safe vehicle. They must take ‘‘a high degree of care’’ and
are under ‘‘the duty of exercising all vigilance to see that whatever is required for
the safe conveyance of their passengers is in fit and proper order’’; but they are
not liable for ‘‘a disaster arising from a latent defect in the machinery which they
are obliged to use, which no human skill or care could either have prevented or
detected.’’252 Accordingly, where a railway carriage ran off the line owing to the
breaking of the tyre of one of the wheels, arising from a latent defect not
attributable to any fault of the manufacturer and not detectable before the
breakdown, the railway company were not liable.253 To rely on a defence of
latent defect there must be proved: (1) the nature of the defect; and (2) that it
could not have been detected with reasonable care and skill.254
10–87 The duty to exercise reasonable care involves the making of a reasonable
examination of the vehicle from time to time, in accordance with the practice of
a reasonably careful carrier.255 A breakdown of the vehicle is evidence of
negligence on the part of the carrier, throwing upon him an evidential burden to
show that he exercised reasonable care and skill in detecting and remedying
defects.256 The onus is a heavy one, and rests upon the defendant to discharge. In
Henderson v H.E. Jenkins & Sons257 the defendant failed to discharge the
evidential burden cast upon it by the happening of an accident as a result of
mechanical defect, because no evidence was called to show the circumstances in
which the vehicle had been used, with the object of establishing how the defect
could have arisen, consistent with the exercise of reasonable care.
10–88 Duty as occupier. The main common law duty arises from the contract of
carriage. The duty in tort is modified by the Occupiers’ Liability Act 1957.258
Section 1 provides that the rules enacted by ss.2 and 3 take effect in place of the
common law. The duty owed pursuant to these sections is the ‘‘common duty of
care’’ and it is owed by persons occupying or having control over any fixed or
251
s.5(3).
252
Readhead v Midland Ry (1869) L.R. 4 Q.B. 379, per Montague Smith J., at 393.
253
Readhead v Midland Ry, above.
254
Ritchie v Western Scottish M.T. Co, 1935 S.L.T. 13 (bus overturned owing to deflated tyre caused
by a defect in metal of the flange under the tyre—company liable). In Pearce v Round Oak Steel
Works [1969] 1 W.L.R. 595 and Henderson v H.E. Jenkins & Sons [1970] A.C. 282, the defendants
failed to discharge the onus.
255
Bremner v Williams (1824) 1 C. & P. 414.
256
Christie v Griggs (1809) 2 Camp. 79.
257
[1970] A.C. 282 (a failure of brakes occurred on a lorry because of the escape of brake fluid from
a corroded hole in part of the pipe which was not accessible to the visual inspections conducted
weekly). See further para.10–247.
258
See generally Ch.8, above.
[740]
CARRIERS 10–91
moveable structure, including any vessel, vehicle or aircraft, to his visitors.259

The duty is to take such care as in all the circumstances of the case is reasonable
to see that the visitor will be reasonably safe in using the premises (in this
context: the vehicle) for the purposes for which he is invited or permitted to be
there. The duty is owed to all visitors except in so far as the occupier is free to
extend, restrict, modify or exclude his duty by agreement or otherwise.260 The
Unfair Contract Terms Act 1977 severely restricts the power of a carrier to limit
or to exclude liability either by agreement or notice.
So far as the duty to warn a visitor of defects or dangers is concerned, it is 10–89

expressly provided that a warning by the ‘‘occupier’’ (that is, the carrier) of the
existence of the danger or defect does not, in itself, absolve him from liability,
unless, in all the circumstances, it was enough to enable the visitor to be
reasonably safe.261 Nevertheless, the defence of volenti non fit injuria is
preserved, but only so far as it would have been available at common law.262
Where the claimant was alighting from the rear seat of the defendant’s motor 10–90
car, with which she was familiar, and she tripped up, falling out on to the
pavement and hurting herself, as a result of her foot having become entangled in
the loop of a seat belt, it was held that the defendant was not liable.263 There was
no obligation upon the driver to make any visual check of the seat belts each
time, upon getting in or out of the vehicle, to ensure that they were hooked up
properly. Likewise, there was no obligation on him to issue a warning to his
passengers to beware of this well-known hazard occasioned by the compulsory
fitting of such belts, together with anchorages at ankle level.
Duty is owed to passengers. The common duty of care is owed to every 10–91
passenger who is a lawful visitor, but sometimes a difficulty arises in determining
who is such a passenger. It is not necessary that the person in question should
have a contract with the carrier. Where a train had been hired for an excursion
from the railway authorities by a benefit society, from whom the claimant had
bought a ticket, and there was a railway accident caused by the carrier’s
negligence, it was held that there was evidence on which a jury could find that
the claimant was their passenger.264 Where a valet was travelling on a railway,
under a contract made between his employer and the railway company, and his
portmanteau was lost, owing to the company’s negligence, it was held that he
could recover ‘‘not by reason of any contract between him and the company, but
259
The Occupiers’ Liability Act 1957 s.1(3)(a).
260
The Occupiers’ Liability Act 1957 s.2(1).
261
The Occupiers’ Liability Act 1957 s.2(4)(a).
262
The Occupiers’ Liability Act 1957 s.2(5).
263
Donn v Schacter [1975] R.T.R. 238 (a passenger must take her own precautions and guard against
such dangers), distinguished in McCready v Miller [1979] R.T.R. 186 (driver was liable to a
passenger who caught her foot in a seat belt as she was getting out of the vehicle, fell and broke her
ankle).
264
Skinner v L.B. & S.C. Ry (1850) 5 Ex. 787.
[741]
by reason of a duty implied by law to carry him safely’’, which duty covered his
luggage as well as himself.265
10–92 Where newspaper reporters were supplied with free tickets on a railway and
the claimant used a ticket bearing the name of another reporter of the same
newspaper, the question arose whether he was entitled to recover damages after
he had been injured by the railway authorities’ negligence. It was apparent that
he had produced his ticket to a porter, whose business it was to examine tickets,
and was shown into a carriage and in the circumstances he was lawfully in the
carriage.266 A passenger in an aeroplane, present as the guest of the hirer of the
aeroplane, was held entitled to recover from the aircraft’s owners for their pilot’s
negligence, since ‘‘the duty to him arose because he was carried in the
aeroplane’’.267 The duty was owed to a post office servant, travelling free of
payment on the railway in order to accompany the mail268; and a passenger who
had left the vehicle temporarily.269
10–93 Non contractual passengers. In the cases cited in the preceding paragraph,
the claimant has been in the vehicle under a contract, although not one to which
he was a party. It is not necessary, however, that there should be a contract,
provided that the claimant is accepted as a passenger. Where the claimant, ‘‘a
gentleman considerably advanced in years’’, signalled to the driver of an omnibus
to stop, and the driver did so but, just as the claimant was putting his foot on the
step, drove on and the claimant fell down and was injured, it was held that the
claimant could recover, because there was evidence that he had been accepted as
a passenger.270 Where a child, just over three years old, was taken into a railway
train by his mother, without any ticket having been taken for him, and was
injured by the railway company’s negligence, he was entitled to recover dam-
ages.271
10–94 Passenger who has not paid the fare. If the passenger has got on to the
vehicle fraudulently, intending not to pay his fare or intending to pay only part
of his fare or only a lower class fare, while travelling first class, he has still been
accepted as a passenger. He is entitled to sue for injuries caused by negligence.
‘‘A third-class passenger is not an outlaw when he travels in a first-class carriage.
265
Marshall v York, Newcastle and Berwick Ry (1851) 11 C.B. 655. The quotation is from the
judgment of Jervis C.J. Meux v G.E. Ry [1895] 2 Q.B. 387 (servant contracted with railway company
and lost his portmanteau, containing livery the property of his mistress, mistress entitled to recover).
See also Martin v G.I.P. Ry (1867) L.R. 3 Ex. 9 (officer in India travelling on railway under contract
between the Indian Government and the railway, lost luggage—was held to be entitled to
recover).
266
Great Northern Ry v Harrison (1854) 10 Ex. 376.
267
Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108.
268
Collett v L. & N.W. Ry (1851) 16 Q.B. 984.
269
Mitchell v Mason (1966) 10 W.I.R. 26.
270
Brien v Bennett (1839) 8 C. & P. 724. Wilkie v L.P.T.B. [1947] 1 All E.R. 258, is a similar
case.
271
Austin v G.W. Ry (1867) L.R. 2 Q.B. 442 at 445, 446, per Blackburn: ‘‘I think that what was said
in the case of Marshall v Newcastle and Berwick Ry (1851) 11 C.B. 655 was quite correct. It was
there laid down that the right which a passenger by railway has to be carried safely, does not depend
on his having made a contract, but that the fact of his being a passenger casts a duty on the company
to carry him safely.’’
[742]
CARRIERS 10–98
When he does so the railway company are still under a duty to him person-
ally.’’272
Trespassing passenger. A trespasser has been defined by Lord Dunedin as 10–95

one ‘‘who goes on the land without invitation of any sort and whose presence is
either unknown to the proprietor or, if known, is practically objected to.’’273
The Occupiers’ Liability Act 1984 provides for a duty to take reasonable care 10–96
that a trespasser does not suffer injury from some danger on the premises, which
include vehicles.274 The duty arises in respect of dangers of which the occupier
is or ought to be aware.275 Before he can be liable the occupier must know or
have reasonable grounds to believe that the trespasser may be in, or come into,
the vicinity of the danger concerned, and the risk must be one against which he
may reasonably be expected to offer protection. It will matter not that the
passenger is present on the vehicle, for instance, as a result of fraud.276 What is
important is the occupier’s knowledge—of danger and the possible exposure of
the trespasser to it—and the trespasser’s own awareness that he should not be
where he is will be relevant only to contribution.
Passenger riding with consent of employee. Where an employee of a carrier, 10–97

without his employer’s authority and acting outside the scope of his employment,
allowed a person to become a passenger in the vehicle, the employer was under
no liability to him in respect of any damage suffered in an accident, caused by the
employee’s negligence: the person was a trespasser, whose presence was
unforeseeable.277 In a modern setting, however, the employer would probably be
vicariously liable for such conduct, as in Rose v Plenty278 where the defendant
contracted to carry the claimant’s goods in a cart and sent his employee with the
cart, and the claimant, with the employee’s permission but without the authority
of the employer, rode in the cart, which broke down, the claimant could not
recover damages.279
Injury caused by a stranger to the contract of carriage. Where a carrier 10–98

contracts to carry a passenger, partly on his own vehicle and partly on vehicles
supplied by others he is liable not only for the negligence of himself and his
employees but also for the negligence of those responsible for the other
272
per Atkin L.J. in Vosper v G.W. Ry [1928] 1 K.B. 340 at 349 (passenger with third class ticket
travels in a first class carriage and loses his luggage, held able to recover from the railway com-
pany).
273
Robert Addie & Sons (Collieries) Ltd v Dumbreck [1929] A.C. 358 at 371.
274
See Ch.8, para.8–03, above (definition of ‘‘premises’’) and paras 8–144 to 8–160 (for discussion
of the 1984 Act).
275
Occupiers’ Liability Act 1984 s.1(3).
276
As in Austin v G.W. Ry (1867) L.R. 2 Q.B. 442.
277
Twine v Bean’s Express Ltd [1946] 1 All E.R. 202, affirmed 175 L.T. 131, which was distinguished
in Rose v Plenty [1976] 1 W.L.R. 141, where the employer was held vicariously liable in the
circumstances.
278
[1976] 1 W.L.R. 141, CA (a milkman, who deliberately ignored an order not to employ children
on his milk round, was not acting outside the scope of his employment).
279
Lygo v Newbold (1854) 9 Ex. 302. See also Houghton v Pilkington [1912] 3 K.B. 308.
[743]
vehicles.280 This is purely a contractual duty. Where there is no contract a carrier

will still owe a duty of care in negligence, arising from acceptance of the
passenger, as a passenger.281 In Dalyell v Tyrer,282 the lessee of a ferry hired such
a vessel from the defendants, in order to assist him in carrying his passengers.
The defendants provided their own tackle and crew. The claimant, who had
contracted with the lessee to be carried across on the ferry, was injured on board
by the breaking of some tackle, owing to the negligence of the crew. He was held
entitled to recover, because ‘‘if the negligence in question had injured a mere
stranger, not on board, but standing, for instance, on the pier at the time, they
would have been liable’’.283
10–99 After the generality of the foregoing it will usually be the case that what
amounts to negligence in the context of carriage depends on the nature of the the
carriage concerned and all the circumstances of the case. The appropriate duty
and standard of care is considered below with reference to railways, road
carriage, ships, aircraft, and hovercraft.
(B) Railways284
10–100 General duty of railway authorities. Railway authorities are under a duty to
use reasonable care and skill in the provision and maintenance of their premises,
including their carriages, the provision and maintenance of railway tracks, the
provision of a proper system of signalling, and the carrying on of their
activities285 so as to prevent accidents. The standard of care is that of a
reasonably careful and skilful body of persons, carrying on the work of such a
transport undertaking.
10–101 Illustrations of a prima facie case of negligence. When either a collision

between two trains occurs,286 or a train runs off the lines,287 or a train drives into
the buffers,288 or a train suddenly starts off without any warning,289 which results
in severe jolts being caused and injuries being sustained by someone, a prima
facie case of negligence is established. This prima facie case, however, may be
280
G.W. Ry v Blake (1872) 7 H. & N. 987; Thomas v Rhymney Ry (1871) L.R. 6 Q.B. 266. See also
the analysis of Thesiger L.J. in Foulkes v Metropolitan Ry (1880) 5 C.P.D. 157 at 168, 169.
281
Foulkes v Metropolitan Ry (1880) 5 C.P.D. 157; Hooper v L. & N.W. Ry (1880) 50 L.J.Q.B. 103;
and see Wright v Midland Ry (1873) L.R. 8 Ex. 137.
282
(1858) E.B. & E. 899. See also the similarity of decision in Berringer v G.E. Ry (1879) 4 C.P.D.
163.
283
Dalyell v Tyrer (1858) E.B. & E. 899 per Erle J. at 905.
284
For consideration of international carriage by rail see para.10–145, below.
285
Indeed, the duty extends to passengers who are waiting on the platforms: Public Transport
Commission of N.S.W. v Perry (1977) 14 A.L.R. 273 (claimant, whilst awaiting the arrival of a train,
suffered a form of epileptic attack, fell unconscious on to the railway track and was struck by the
approaching train).
286
Skinner v L.B. & S.C. Ry (1850) L.R. 5 Ex. 787; Ayles v S.E. Ry (1868) L.R. 3 Ex. 146.
287
Carpue v London & Brighton Ry (1844) 5 Q.B. 747; Dawson v M.S. & L. Ry (1862) 5 L.T.
682.
288
Burke v M.S. & L. Ry (1879) 22 L.T. 442.
289
Caterson v Commissioner for Railways (1972) 128 C.L.R. 99.
[744]
CARRIERS 10–105
rebutted by proving a latent defect in the rolling stock290 or by showing that the
collision was caused by the wrongful act of a third person.291 It is negligent to run
a train over lines which were known to be defective and fractured.292
Overcrowding of carriages. Railway authorities are bound to provide 10–102

reasonable accommodation for their passengers, and if too many people are put
into the same carriage, they are liable for the damage resulting therefrom.293
They are also bound to take reasonable steps to prevent people from getting into
carriages already full.294 It has been held that it is not the natural result of
overcrowding that a passenger should have his hand trapped when the carriage
door was shut,295 or that he should be crushed by other passengers, who are
hurrying to alight from the train,296 or that he should be assaulted297 or robbed298
by other passengers.
Injury caused to one passenger by another. Railway authorities are not 10–103
liable if one passenger negligently or wilfully injures another. Where a passenger
in a railway train brought into the carriage a parcel, which appeared to be
harmless but actually contained bombs that exploded and injured a fellow-
passenger, the railway authorities were not liable: they were not bound to search
every parcel taken into the carriage, unless there was something to suggest
danger.299 If, however, the authorities know that a person, whether by reason of
disease, drunkenness or avowed intention, is likely to be a danger to other
passengers, they are under a duty to prevent him from entering the train.300 They
are also under a duty to take all reasonable steps to preserve order in their trains,
which may require the removal of any disorderly persons.
When a passenger in a train was robbed by a gang of men entering his 10–104
compartment, and at the next station he asked the stationmaster to detain the
train, so that the men could be given into custody and searched, a refusal to detain
the train was not negligent because the railway authorities were not responsible
for the robbery and under no duty to delay to enable the claimant to recover his
property.301
Shutting carriage doors. Railway authorities are under a duty to take 10–105
reasonable care to see that the carriage doors are properly closed, before the train
290
Readhead v Midland Ry (1869) L.R. 4 Q.B. 379.
291
Latch v Rumner Ry (1858) 27 L.J. Ex. 155.
292
Pym v G.N. Ry (1861) 2 F. & F. 619.
293
Metropolitan Ry v Jackson (1877) 3 App.Cas. 193 at 209, per Lord Blackburn.
294
Metropolitan Ry v Jackson (1877) 3 App.Cas. 193 at 210.
295
Dublin, Wicklow and Wexford Ry v Slattery (1878) 3 App.Cas. 1155 at 1166.
296
Machen v L. & Y. Ry (1918) 88 L.J.K.B. 371.
297
Pounder v N.E. Ry [1892] 1 Q.B. 385.
298
Cobb v G.W. Ry [1894] A.C. 419. At 423 Lord Selborne doubted the correctness of the decision
of the Divisional Court in Pounder v N.E. Ry, above, but contra Lord O’Hagan at 426.
299
East Indian Ry v Kalidas Mukerjee [1901] A.C. 396.
300
See per A. L. Smith J. in Pounder v N.E. Ry [1892] 1 Q.B. 385; Murgatroyd v Blackburn
Tramways (1887) 3 T.L.R. 451.
301
Cobb v G.W. Ry [1894] A.C. 419.
[745]
leaves the station.302 Where the claimant got up and leant against the window
while the train was in motion, but suddenly the door flew open and he fell out the
railway authorities were liable.303 In such circumstances, the fact of the carriage
door opening could well be prima facie evidence of negligence.304 On the other
hand, it was held that the mere fact that a door which was not on the platform side
of the train, came open on an express corridor train, did not give rise even to a
prima facie case.305 Such doors were not under the continuous control of the
railway authorities throughout the train’s journey. Where a four-year-old child
fell out of a train, after he had opened the guard’s van door by an internal handle,
it was held that the carriers could not reasonably have foreseen that a mother,
aware that such a door could be opened from the inside, would have let her child
wander alone about the carriage. Accordingly, the defendants were not liable for
the child’s death.306 Further, where a passenger was in a carriage, the door of
which kept flying open, and, on his trying to close it for the fourth time, he fell
out and was injured, it was held that his claim failed because he was doing
something obviously dangerous, when he might have been sitting in the carriage
in safety.307
10–106 Before the train is about to start its journey, the actual shutting of a door must
be done with reasonable care. So, when a passenger is in the act of getting into,
or out of a carriage, a warning should be given by the porter before he attempts
to shut the door.308 In such circumstances, any failure to give a warning is
evidence of negligence.309 When no warning has been given, the question arises:
what would the person whose duty it was to shut the doors reasonably have
supposed the position of the claimant to have been?310 Obviously, there is no
negligence in shutting a door, without warning, if the passengers are all seated in
the carriage and not in the act of either getting out or in.311 But it is equally
obvious that to slam the door, without warning or giving a passenger reasonable
opportunity first to alight and without taking reasonable care to see that it is safe
to shut the door, is negligent.312
302
Thatcher v G.W. Ry (1893) 10 T.L.R. 13; Toal v N.B. Ry [1908] A.C. 352; Burns v N.B. Ry, 1914
S.C. 754; Hare v B.T.C. [1956] 1 W.L.R. 250; Brookes v L.P.T.B. [1947] 1 All E.R. 506 (door left open
when underground tube train started and passenger was precipitated out).
303
Gee v Metropolitan Ry (1873) L.R. 8 Q.B. 1. See also Warburton v Midland Ry (1870) 21 L.T.
835; Richards v G.E. Ry (1873) 28 L.T. 711; Dudman v N.L. Ry (1886) 2 T.L.R. 365; Hamer v
Cambrian Ry (1886) 2 T.L.R. 508; Inglis v L.M.S. Ry, 1941 S.C. 551.
304
Gee v Metropolitan Ry (1873) L.R. 8 Q.B. 161; Inglis v L.M.S. 1941 S.C. 551.
305
Easson v L.N.E. Ry [1944] K.B. 421.
306
O’Connor v British Transport Commission [1958] 1 W.L.R. 346.
307
Adams v L. & Y. Ry (1869) L.R. 4 C.P. 739. In Gee v Metropolitan Ry (1873) L.R. 8 Q.B. 161,
Brett J., who was a party to the decision, said that the correct principle had been applied incorrectly
to the facts in Adams. However today, it is much more likely that liability would be established in like
circumstances, although the claimant would be guilty of a degree of contributory negligence.
308
Richardson v Metropolitan Ry (1868) L.R. 3 C.P. 374n.
309
Fordham v L.B. & S.C. Ry (1869) L.R. 4 C.P. 619; Atkins v S.E. Ry (1885) 2 T.L.R. 94.
310
Cohen v Metropolitan Ry (1890) 6 T.L.R. 146.
311
Drury v N.E. Ry [1901] 2 K.B. 322; Benson v Furness Ry (1903) 88 L.T. 268; see also
Metropolitan Ry v Jackson (1877) 3 App.Cas. 193.
312
Bird v Railway Executive [1949] W.N. 196.
[746]
CARRIERS 10–109
If a carriage door has not been shut properly and, when the train starts, a 10–107
passenger, who has already alighted from the train, is struck by the door swinging
open wide, there is evidence of negligence against the railway authorities.313
Likewise, where a passenger entered an electric train and, before he had taken his
seat, the train started off with a jerk, causing him to lose his balance, so that he
put out his hand, which was caught by a sliding door.314 The mere fall of a
carriage door’s window into its socket is not evidence of negligence against the
railway company.315 A passenger who, arriving late, dashed on to a moving train
but left open the carriage door, was liable to the porter working on the platform
whom the door struck and injured.316
Joining or leaving a train. Railway authorities are bound to provide 10–108

reasonable means for passengers to leave the train at all stations where it stops.317
If the platform is too high or too low having regard to the height of the carriage,
that is evidence of negligence.318 Where the train was too long for the platform
and a passenger was asked by a porter to leave the train beyond the end of the
platform, the railway authorities were liable for an accident he sustained in so
doing, since ‘‘the place and the means of descent provided were not reasonably
convenient’’.319
The mere fact of a carriage overshooting320 or failing to reach321 the platform 10–109
is not evidence of negligence against the railway authorities. Where a passenger,
in such circumstances, chooses to get off and in doing so is injured, he has no
claim.322 It is otherwise where a passenger is invited to alight, either expressly or
by implication, and is injured in doing so as a result of the carriage not being
opposite the platform.323 It depends on the circumstances whether or not there
has been an invitation to alight. Calling out the name of the station, as the train
draws up, is not an invitation to get off immediately it stops.324 But where the
name of the station had been called out, the train had stopped, no warning had
been given not to alight and some time had elapsed, there was sufficient evidence
313
Toal v N.B. Ry [1908] A.C. 352; Hare v B.T.C. [1956] 1 W.L.R. 250.
314
Metropolitan Ry v Delaney (1921) 90 L.J.K.B. 721.
315
Murray v Metropolitan Ry (1873) 27 L.T. 762.
316
Booker v Wenborn [1962] 1 W.L.R. 162.
317
Robson v N.E. Ry (1876) 2 Q.B.D. 85, per Mellish L.J. at 88.
318
Foulkes v Metropolitan Ry (1880) 5 C.P.D. 157; Wharton v L. & Y. Ry (1888) 5 T.L.R. 142;
Manning v L. & N.W. Ry (1907) 23 T.L.R. 222.
319
Foy v L.B. & S.C. Ry (1865) 18 C.B.(N.S.) 225.
320
Lewis v L.C. & D. Ry (1873) L.R. 9 Q.B. 66; Weller v L.B. & S.C. Ry (1874) L.R. 9 C.P. 126.
321
Bridges v North London Ry (1874) L.R. 7 H.L. 213.
322
Siner v G.W. Ry (1869) L.R. 4 Ex. 117; Harrold v G.W. Ry (1866) 14 L.T. 440; Owen v G.W. Ry
(1877) 46 L.J.Q.B. 486; Abbott v N.B. Ry, 1916 S.C. 306.
323
Struthers v British Railways Board (1969) 113 S.J. 268 (the defendants were negligent in stopping
their train short of the platform at a station, without any compelling reason and in siting the
illuminated station sign where it was, which had prompted the claimant passenger to alight opposite
it. The claimant was one-third to blame for failing to look where he was stepping); Poole v State
Transport Authority (Rail Division) 31 S.A.S.R. 74, Sup. Ct. of South Australia (the defendants were
liable in negligence where the train driver had overshot the station platform and had stopped so that
a carriage doorway had opened out on to a sloping ramp at the platform’s end. The claimant was
guilty of contributory negligence to the extent of 25 per cent).
324
Lewis v L.C. & D. Ry (1873) L.R. 9 Q.B. 66; Plant v Midland Ry (1870) 21 L.T. 836.
[747]
of an invitation to leave.325 Similarly, when the train overshot the platform and
porters called out to the passengers to keep their seats, but the claimant, who was
in the front, did not hear and after a little time, got out and was injured, it was
held that there was evidence of negligence against the railway authorities.326
10–110 Opening the door of the carriage is an invitation to alight.327 Where, in

darkness, the carriage in which the claimant was travelling drew up opposite a
curved part of the platform, so that a gap appeared between the footboard and the
platform, the claimant fell into it, liability was made out.328 Conversely, where an
intending passenger fell into the gap between an underground train and the
curved edge of the platform, which was marked clearly with a white line and was
illuminated adequately, the defendants were not negligent.329 Even where an
invitation to leave the train is made negligently a passenger must take reasonable
care for his own safety, if he is to avoid a finding of contributory negli-
gence.330
10–111 There is no invitation to alight where passengers are warned not to leave their
seats. If a passenger disregards such a warning or gets off either before or
immediately the train stops but before the railway staff have had time to give
warning, his action for damages will probably fail.331
10–112 Stopping and starting of trains. Trains must be started and stopped with
reasonable care. If a train is started with a sudden jerk, as a result of which a
passenger is injured, for example, by a sliding door closing and trapping his
hand,332 there is evidence of negligence.333 A violent and unusual stopping or
starting of the train, which occasions injury to a passenger, is prima facie
evidence of negligence. The railway authorities will have ‘‘to show both that they
acted reasonably and properly in suddenly stopping the train, and also that the
cause which led to the necessity of stopping the train was not brought about by
any negligence upon their part’’.334 Where the brakes of a train were suddenly
applied, which threw the claimant off his seat, and it was proved that the train had
stopped in that manner in order to avoid running over a passenger who was
crossing the line, it was held, nevertheless, that the railway authority were liable.
It had not been shown that the presence of the passenger on their line was not a
consequence of their negligence.335 Where a claimant boarded a long-distance
train in order to help a passenger with his luggage, and the train suddenly started
325
Weller v L.B. & S.C. Ry (1874) L.R. 9 C.P. 126. See also Bridges v North London Ry (1874) L.R.
7 H.L. 213 at 241, per Lord Hatherley; Robson v N.E. Ry (1876) 2 Q.B.D. 85.
326
Rose v N.E. Ry (1876) 2 Ex.D. 248.
327
Praeger v Bristol and Exeter Ry (1871) 24 L.T. 105.
328
Cockle v L. & S.E. Ry (1872) L.R. 7 C.P. 321 at 326, per Cockburn C.J.
329
Stracstone v London Transport Board, The Times, January 21, 1966.
330
See, generally, Ch.4, paras 4–03 to 4–72, above.
331
See, e.g. Anthony v Midland Ry (1908) 100 L.T. 117.
332
Metropolitan Ry v Delaney (1921) 90 L.J.K.B. 721.
333
Langton v L. & Y. Ry (1886) 3 T.L.R. 18; L. & N.W. Ry v Hellawell (1872) 26 L.T. 557; Stockdale
v L. & Y. Ry (1863) 8 L.T. 289; Goldberg v G. & S.W. Ry, 1907 S.C. 1035, where the railway company
succeeded in avoiding liability.
334
Lord Loreburn L.C. in Angus v London, Tilbury and Southend Ry (1906) 22 T.L.R. 222.
335
Angus v L.T. & sRy (1906) 22 T.L.R. 222.
[748]
CARRIERS 10–115
to move off, without prior audible warning, the railway authorities were held
liable to him when he jumped from the moving train, as it was gathering speed.336
A guard has a duty to observe passengers on the platform in the moments before
a train is about to depart. So where the guard failed to notice a drunken passenger,
who was shouting and banging on the side of the train and who subsequently fell
in a gap between the platform and the train so that he was injured when the train
departed, the train company was liable for the guard’s negligence.337
It is negligent for a passenger to: stand in a carriage by an open door, while the 10–113
train is in motion,338 or attempt to board339 or leave340 a train in motion.
Duty to visitors. Persons resorting to railway premises, whether as intending 10–114

passengers, or as the senders or consignee of goods, are in the position of
invitees341 and, hence, ‘‘visitors’’ under the Occupiers’ Liability Act 1957.342
Similarly, a person seeing a friend off at a railway station or meeting a passenger
arriving by train is a visitor.343 It follows that the railway authorities are under a
duty to take care that their premises are reasonably safe for persons using them
in the ordinary and customary manner and with reasonable care. Quite apart from
the duty in tort, a contractual duty is owed by railway authorities to ticket-
holding passengers to use reasonable care to make their premises, including
trains, safe for use by the passenger in the usual manner.344
Platforms. Platforms must be made and kept reasonably safe for their 10–115
purpose. They must be neither too high nor too low for the train’s carriages.345
The existence of an obstacle, projecting above the level of the platform, which
someone might stumble over despite taking reasonable care, was evidence of
negligence.346 On the other hand, where there was a portable weighing machine
on the platform, the foot of which projected six inches above the platform and the
machine had been in the same position for five years, without causing an
accident, the railway authority was not liable to a passenger who tripped over
336
Caterson v Commissioner for Railways (N.S.W.) (1973) 47 A.L.J.R. 249.
337
Williamson v Silverlink Train Services Ltd [2008] EWHC 2945 (QB) - the claimant was guilty of
contributory negligence to the extent of one half.
338
Langton v L. & Y. Ry (1886) 3 T.L.R. 18; Folkes v North London Ry (1892) 8 T.L.R. 269. Such
evidence is not conclusive: Hall v London Tramways Co (1896) 12 T.L.R. 611.
339
Avis v G.E. Ry (1892) 8 T.L.R. 693; Booker v Wenborn [1962] 1 W.L.R. 162.
340
Metropolitan Ry v Wright (1886) 11 App.Cas. 152.
341
Norman v G.W. Ry [1915] 1 K.B. 584. For the duty to visitors generally, see Ch.8, paras 8–23 to
8–35, above.
342
s.1(2).
343
Watkins v G.W. Ry (1877) 37 L.T. 193; Stowell v Railway Executive [1949] 2 K.B. 519 (father at
station to meet his daughter arriving by train slipped on patch of oil on platform and succeeded in
establishing liability); Thatcher v G.W. Ry (1893) 10 T.L.R. 13; Hare v B.T.C. [1956] 1 W.L.R. 250
(claimant, while standing on platform, after seeing her husband off in a train, was struck from behind
by the open door of the guard’s van). The issue of platform tickets will be affected by the terms of
the Unfair Contract Terms Act 1977 as regards any attempt to restrict liability in negligence for
personal injuries or death suffered by such a ticket holder.
344
Protheroe v Railway Executive [1951] 1 K.B. 376 (where a contract ticket holder tripped in a crack
between a paving stone and the coping stone at the edge of the platform and hurt herself).
345
Foulkes v Metropolitan Ry (1880) 5 C.P.D. 157; Wharton v L. & Y. Ry (1888) 5 T.L.R. 142;
Manning v L. & N.W. Ry (1907) 23 T.L.R. 222.
346
Sturges v G.W. Ry (1892) 8 T.L.R. 231; Bloomstein v Ry Executive [1952] 2 All E.R. 418.
[749]
it.347 If the platform is reasonably safe for persons using it in a reasonable way,
the railway authorities are under no liability to persons using it in an unreason-
able way. For example, where two passengers ran arm-in-arm along a platform,
which was safe for one but too narrow for two abreast, and one of them fell on
to the railway line and was injured, there was no liability.348 Nor did liability
attach where there were two doors close together on the platform, one marked
‘‘Gentlemen’’ and the other marked ‘‘Lamp Room’’, and the claimant, intending
to go to the first mistakenly went through the second and fell down some
steps.349
10–116 There may well be no liability on the railway authorities where they have taken
reasonable care either to eliminate a source of danger or, if that is impracticable,
to give reasonable warnings of its presence. Where, after snow, a porter at a
station began to spread sand but had to attend to other work before he had
finished and, shortly after a passenger alighting from a train slipped and was
injured, there had been no failure of reasonable care and the claim failed.350
Similarly, where the defendants’ foreman at Paddington station saw a patch of oil
lying on the surface and sent for sawdust, after calling out to stop passengers
from walking in it, but the claimant did not hear his warnings, her action in
negligence failed when fell after slipping on the oil.351 Nevertheless, if slipping
hazards are allowed to remain on the platform, after the station authority knew
or or ought to be known of their presence, and an accident happens, there is
evidence of negligence.352 If the danger is obvious, there will be a potential
finding of contributory negligence353 on the part of the person who slips.354
10–117 Railway authorities must take reasonable care to provide and maintain such
lighting on their platforms, as make them safe for persons ordinarily using
them.355 It may become essential in foggy conditions to take additional
precautions in order to ensure that passengers are protected reasonably from
dangers incidental to movement along a platform, such as from falling over the
edge and on to the tracks.356
10–118 Railway authorities are under a duty to see that their platforms are not
overcrowded, and to take reasonable care to control the crowd so as to prevent
347
Cornman v E.C. Ry (1859) 4 H. & N. 781. See also to the same effect, Blackman v L.B. & S.C.
Ry (1869) 17 W.R. 769.
348
Rigg v M.S. & L. Ry (1866) 14 W.R. 834.
349
Toomey v L.B. & S.C. Ry (1857) 3 C.B.(N.S.) 146. It is doubtful that this case would be decided
the same way today. An obvious precaution would be to keep the lamp room locked, since the
travelling public are not intended to have access to it.
350
Tomlinson v Railway Executive [1953] 1 All E.R. 1.
351
Blackman v Railway Executive [1953] 1 W.L.R. 2, affirmed [1954] 1 W.L.R. 220.
352
Shepherd v Midland Ry (1872) 25 L.T. 879.
353
For contributory negligence as a partial defence, see Ch.4, paras 4–03 to 4–72, above.
354
Osborne v L. & N.W. Ry (1888) 21 Q.B.D. 220; Brackley v Midland Ry (1916) 85 L.J.K.B. 1596;
Letang v Ottawa Electric Ry [1926] A.C. 725; Stowell v Ry Executive [1949] 2 K.B. 519.
355
Martin v G.N. Ry (1855) 16 C.B. 179.
356
L.T. & sRy v Patterson (1913) 29 T.L.R. 413. This decision can be criticised on the ground that
there were no further precautions which the railway company could have taken in all the
circumstances: Schlarb v L.N.E. Ry [1936] 1 All E.R. 71.
[750]
CARRIERS 10–122
accidents. Thus, there was evidence of negligence where an excursion train was
provided and more people were allowed on the platform than it could properly
hold, as a result of which there was a rush when the train arrived, and the
claimant was pushed on to the line.357 It might be otherwise if adequate numbers
of competent station staff were provided.358
The railway authorities are liable for the negligence of their employees. So, 10–119
they were liable when the claimant was struck by a portmanteau which fell from
a luggage barrow, being pushed along the platform by a porter.359 But they are
not vicariously liable for the negligence of independent contractors,360 or for the
act of a stray dog, which bit a passenger on the platform, in the absence of
negligence in allowing it on the platform.361
Approaches. The occupier’s duty towards visitors is also owed in relation to 10–120
a footbridge or a staircase, either leading to a station or between one platform and
another. Reasonable care must be taken to see that the premises are reasonably
safe. So, railway authorities were liable where a passenger slipped on a worn
flight of steps.362 Likewise where the slip was on steps covered in snow. 363 When
there is more than one approach to a platform, it is no defence for the railway
authorities to show that the other route was safer, because a passenger is entitled
to avail himself of any approach provided.364
The duty is not to keep everything in such a condition that nobody can, by any 10–121
possibility, be hurt. For example, where a woman tripped on an escalator, by
catching her heel in the space between the bottom of the escalator and the
platform, the railway authority was not liable in negligence, since the space’s
width was only half an inch (12.7mm).365 On the other hand, a passenger, who
tripped over a projecting nut and bolt, which was part of a weighing machine that
was placed on a path leading from the platform to the street, succeeded in her
claim.366
The mere fact that a passenger slips on some steps is not evidence of 10–122
negligence. Where a passenger slipped on steps which were used safely by
hundreds of people daily, and it was proved that the nosing of the steps, which
were made of brass, had become worn and slippery, negligence was not made out
on proof that the accident would not have happened if lead had been used
357
Hogan v S.E. Ry (1873) 28 L.T. 271; McGregor v Glasgow District Subway Co (1901) 3 F. 1131;
Fraser v Caledonian Ry (1902) 5 F. 41.
358
M’Callum v N.B. Ry, 1908 S.C. 415. See also Cannon v M.G.W. Ry (1876) 6 L.R.Ir. 199 (railway
company not liable when passenger was pushed on to line from platform by a sudden rush of people
on to platform without permission).
359
Tebbutt v Bristol and Exeter Ry (1870) L.R. 6 Q.B. 73.
360
See Ch.3, paras 3–172 to 3–203, above, for liability for acts of independent contractors.
361
Smith v G.E. Ry (1866) L.R. 2 C.P. 4.
362
Osborne v L. & N.W. Ry (1888) 21 Q.B.D. 220, 221. cf. a similar case on the facts, Brackley v
Midland Ry (1916) 85 L.J.K.B. 1596, where the injured claimant failed to prove liability.
363
Letang v Ottawa Electric Ry [1926] A.C. 725.
364
Longmore v G.W. Ry (1865) 19 C.B.(N.S.) 183; Letang v Ottawa Electric Ry, above.
365
Alexander v City and South London Ry (1928) 44 T.L.R. 450.
366
Bloomstein v Railway Executive [1952] 2 All E.R. 418.
[751]
instead.367 Where a consignee of goods sent a horse and cart to a goods yard to
take delivery, and, on one side of the yard, there was an unfenced grass slope,
down which the horse and cart fell while the carter was signing for the goods, the
fact that the slope was unfenced did not give rise to liability.368
10–123 Crossing between platforms or over the lines. Suitable crossings must be
provided to allow passengers to enter or leave the station or go from one platform
to another. A crossing may take the form either of a bridge over the line or a level
crossing. Where both are provided, a notice forbidding passengers to cross by
means of the level crossing and directing them to use the bridge instead, will not
provide a defence if they there has been acquiescence to passengers using the
level crossing.369 When a level crossing is used, a passenger must take reasonable
care for his own safety.370 Where a passenger could not see an approaching train,
owing to darkness or to a curve in the line, and received no warning, either by
way of a whistle from the engine or otherwise that a train was expected, there
was evidence of negligence.371
10–124 Embankments and bridges. Embankments and bridges must be maintained

in a reasonably safe condition. A collapse of an embankment or bridge is
evidence of negligence and it is no defence to say that it was caused by
exceptional weather conditions, because ‘‘the railway company ought to have
constructed their works in such a manner as to be capable of resisting all the
violence of weather which in the climate . . . might be expected, though perhaps
rarely, to occur.’’372 Even so, liability was not established where there was no
evidence of negligence in construction or maintenance, it appeared that compe-
tent people had been employed in the work, and the best method and materials
used.373 When a highway is carried over the railway by a bridge, there is a
statutory duty to maintain the bridge and its approaches.374 When the road over
such a bridge was in a bad state of repair, with several potholes and a large rut,
as a result of which a cyclist was injured, the railway authorities were lia-
ble.375
10–125 Level crossings over highways. When a railway line crosses a highway,376
by means of a level crossing, the railway authorities are under a duty to keep the
367
Crafter v Metropolitan Ry (1866) L.R. 1 C.P. 300.
368
Norman v G.W. Ry [1915] 1 K.B. 584.
369
Dublin, Wicklow and Wexford Ry v Slattery (1878) 3 App.Cas. 1155; Rogers v Rhymney Ry (1872)
26 L.T. 879.
370
See Walker v Midland Ry (1866) 14 L.T. 796 and Davey v L. & S.W. Ry (1883) 12 Q.B.D. 70, both
of which would probably be decided differently today, although subject to findings of contributory
negligence.
371
See Dublin, Wicklow and Wexford Ry v Slattery (1878) 3 App.Cas. 1155, Brown v G.W. Ry (1885)
1 T.L.R. 614; Wright v Midland Ry (1885) 1 T.L.R. 406; Crowther v L. & Y. Ry (1889) 6 T.L.R. 18;
Dallas v G.W. Ry (1893) 9 T.L.R. 344.
372
G.W. Ry of Canada v Braid (1863) 1 Moo.P.C.(N.S.) 101, not following Withers v North Kent Ry
(1858) 27 L.J. Ex. 417, where an unusually violent storm had washed away an embankment, which
had stood for five years, the railway company was not liable.
373
Grote v Chester and Holyhead Ry (1848) 2 Exch. 251.
374
Railways Clauses Consolidation Act 1845 s.46.
375
Swain v Southern Ry [1939] 2 K.B. 560.
376
See James, ‘‘Railway Level Crossings and the Duty of Care’’, 145 J.P.N. 300.
[752]
CARRIERS 10–126
crossing in a proper state for the passage of traffic. They must take reasonable
care to reduce the danger created by the rails of their line to a minimum, although
the precise nature of the measures to be taken will depend on the circum-
stances.377 Thus, where rails were placed too high above the surface of a road, as
a result of which the claimant’s conveyance was caught by the rails and torn in
two, the authorities were liable.378 Further a crossing must be kept in proper
repair,379 which duty extends to any inclined approaches leading to it.380 It is not
however the case that they must reconstruct such approaches from time to time
to meet modern traffic requirements.381
The Railway Clauses Consolidation Act 1845 s.47,382 provides that if a 10–126
railway crosses a public carriage road on the level, the authorities must erect and
maintain good and sufficient gates across the road, and must employ proper
persons to open and shut them. Further, s.61 provides that if a railway crosses a
highway other than a public carriageway on the level, the company must, if the
highway is a bridleway, erect and maintain good and sufficient gates, and, if it is
a footway, good and sufficient gates or stiles at each side of the railway where the
highway communicates with it. For neglect to perform their statutory duty the
railway authorities are liable. Where, therefore, a railway line crossed a footpath
on the level and the company, in breach of their duty under s.61, had not erected
a gate or stile, with the result that a child of four-and-a-half, who was out on an
errand, got on to the crossing and was injured by a train, the authorities were
liable.383 Likewise where a good and sufficient stile had not been maintained, in
that it had become ruined by vandals within about 10 days of its erection, as a
result of which a two-year-old toddler got on to the railway lines and was
severely injured.384
In the absence of a gatekeeper, as required by s.47, a member of the public
ought not attempt to open the gate. There was no liability when someone did and
377
Smith v L.M.S. Ry, 1948 S.C. 125. Commissioner for Railways v Quinlan [1964] A.C. 1054. In
Commissioner for Railways v McDermott [1967] A.C. 169 it was held that in running trains through
a level crossing there was imposed on the railway authority a general duty of care towards persons
lawfully on the crossing, which extended not merely to positive operations but included keeping the
crossing itself in a reasonably safe condition. See too Clegg v Rogerson [2005] CSOH 113. See Hall,
‘‘Occupiers’ Liability towards Trespassers’’ 115 L.J. 87 (founded on this case); ‘‘Negligence at Level
Crossings’’ 236 L.T. 101.
378
Oliver v N.E. Ry (1874) L.R. 9 Q.B. 409.
379
Guilfoyle v Port of London Authority [1932] 1 K.B. 336; Swain v Southern Ry [1939] 2 K.B.
560.
380
Hertfordshire County Council v G.E. Ry [1909] 2 K.B. 403. The wide principle enunciated by
Fletcher Moulton L.J. was said to be ‘‘too broadly expressed’’ in Sharpness New Docks, etc., Co v
Attorney-General [1915] A.C. 654. The obligation under the Railways Clauses Consolidation Act
1845 s.16, does not extend to repairing the approaches: West Lancashire Rural District Council v L.
& Y. Ry [1903] 2 K.B. 394.
381
Attorney-General v G.N. Ry [1916] 2 A.C. 356.
382
The Railways Clauses Act 1863 s.6, requires the company to erect a lodge at the point where the
railway crosses a public carriage road. The Road and Rail Traffic Act 1933, s.42 the Transport Act
1968 ss.123–124, and the Local Government Act 1972 Sch.30, contain other provisions relating to
level crossings, not affecting the text.
383
Williams v G.W. Ry (1874) L.R. 9 Ex. 157, approved and followed by the CA in Thomas v British
Railways Board [1976] Q.B. 912. For cases of injury to cattle through neglect of fencing, see also
Ch.14, para.14–85, below.
384
Thomas v British Railways Board [1976] Q.B. 912.
[753]
was injured385 Apart from s.47, the railway authorities are under no obligation
(except under a special Act) to employ a gatekeeper or a watchman at a level
crossing.386 The duty of a gatekeeper at a level crossing over a highway is not
increased by the fact that there is an accommodation crossing near it.387
10–127 By the provisions of the Level Crossings Act 1983, the Secretary of State may
by order provide for the protection of those using the level crossing. Such an
order must be requested by the operator of the crossing. When it is in force, the
duty is placed on the operator to comply with operational conditions and provide
for use of protective equipment.
10–128 Railway authorities must take reasonable care to avoid injuring members of
the public at level crossings. If their employees act in a way which would lead
a reasonable person to believe that it is safe to cross the lines and a person
attempts to cross and is injured by a train, then there is evidence of negli-
gence.
ILLUSTRATIONS
10–129 Liability was established: where a railway gatekeeper indicated to a carman

that the line was clear whereupon the carman entered the line and was hit by a
train388; where the level crossing gates across a road were left open and a
pedestrian, who assumed he could proceed in safety, attempted to cross the line
and was run over389; where a man, after calling one night to inquire after his wife
at the gatekeeper’s lodge, proceeded to cross the line, not having been warned by
the gatekeeper that a train was approaching, and was killed,390 where a wicket
gate, which was usually kept locked when a train was about to pass, was left
unlocked and a pedestrian went through and was run over by a train.391 In
circumstances where there was no duty to whistle on the approach to a level
crossing but it was a regular practice and the claimant assumed that it was safe
to cross but was struck by a train, there was evidence of negligence.392
10–130 Apart from the provision of gates, reasonable precautions must be taken for the
protection of persons using a crossing, such as by drawing attention to the need
to look in both directions along the track before attempting to cross, whether on
385
Wyatt v G.W. Ry (1865) 34 L.J.Q.B. 204.
386
Cliff v Midland Ry (1870) L.R. 5 Q.B. 258; Stubley v L. & N.W. Ry (1865) L.R. 1 Ex. 13; Newman
v L. & S.W. Ry (1890) 7 T.L.R. 138.
387
Liddiatt v G.W. Ry [1946] K.B. 545 (level crossing 160 yards from accommodation crossing, south
gate of which was visible to gatekeeper—gatekeeper opened level crossing when south gate open,
and claimant’s heifer was killed by a train—railway company were held not liable).
388
Lunt v L. & N.W. Ry (1866) L.R. 1 Q.B. 277.
389
N.E. Ry v Wanless (1874) L.R. 7 H.L. 12.
390
Smith v S.E. Ry [1896] 1 Q.B. 178.
391
Mercer v S.E. & C. Ry [1922] 2 K.B. 549; see also North Eastern Ry v Wanless (1874) L.R. 7 H.L.
12.
392
Dublin, Wicklow and Wexford Ry v Slattery (1878) 3 App.Cas. 1155 at 1165, per Lord Cairns;
Smith v South Eastern Ry [1896] 1 Q.B. 178 at 183, per Lord Esher.
[754]
CARRIERS 10–133
foot or by vehicle.393 An omission to whistle or otherwise to give warning of the

approach of a train may be evidence of negligence, according to the circum-
stances,394 but there is no obligation to whistle in every case.395 But where a
whistle board was placed so near to a crossing that it would only take 12-and-
a-half seconds for the train to be on the crossing after blowing the whistle at the
board, and there was a limited view of the track for qnyone using the crossing,
there was evidence of negligence.396
Level crossings and the Highway Code. The driver or rider of a wheeled 10–131
vehicle may be found negligent if he does not comply with the Highway Code,397
which provides that a level crossing should be approached and crossed with care.
A driver should never drive onto a crossing unless he can see the road is clear on
the other side; drive too close to the vehicle in front; stop on or just after a
crossing; or park too close to it.398 Most modern level crossings have steady
amber and twin flashing red traffic lights and an audible alarm which must
always be obeyed.399 The Highway Code paras 295–298, also covers crossings
without traffic lights, user-operated crossings and open crossings .
Contributory negligence on crossings. Not surprisingly, a person who 10–132

crosses a railway line without first looking and listening to determine whether a
train is approaching may be prevented from recovering in full on the ground of
contributory negligence, particularly if the line is straight and he has an
uninterrupted view along the line.400 When the railway crossed a footpath and the
plaintiff attempted to use the path by crawling under a standing train just before
the train moved off, his claim failed altogether, even though no warning had been
given that the train was about to start.401
Private accommodation crossings. When a train is approaching an accom- 10–133

modation crossing,402 reasonable care must be used, but there is no duty to drive
393
Karamalis v South Australian Railways Commissioner (1976) 14 S.A.S.R. 432 (held that the
railway authority’s share of the blame was 15 per cent, compared with the claimant cyclist’s 85 per
cent contributory negligence).
394
Dublin, Wicklow and Wexford Ry v Slattery (1878) 3 App.Cas. 1155; James v G.W. Ry (1867) L.R.
2 C.P. 634n.; Gray v N.E. Ry (1883) 48 L.T. 904.
395
Ellis v G.W. Ry (1874) L.R. 9 C.P. 551; Newman v L. & S.W. Ry (1890) 7 T.L.R. 138.
396
Jenner v S.E. Ry (1911) 105 L.T. 131.
397
Road Traffic Act 1988 s.38. The current edition was issued in 2007.
398
At para.291.
399
At para.293.
400
See Karamalis v South Australian Railways Commission (1976) 14 S.A.S.R. 432. For some earlier
English decisions on the point, when contributory negligence was a complete defence see: Ellis v
G.W. Ry (1874) L.R. 9 C.P. 551; Davey v L. & S.W. Ry (1883) 12 Q.B.D. 70; Skelton v L. & N.W. Ry
(1867) L.R. 2 C.P. 631; Stubley v L. & N.W. Ry (1865) L.R. 1 Ex. 13.
401
French v Hills Plymouth Co (1908) 24 T.L.R. 644.
402
These are sometimes referred to as ‘‘occupation crossings’’. If there is any significant distinction
it seems to be that where there had been an existing private right of way before the railway was built
the resulting level crossing made was to replace the roadway and was an ‘‘accommodation’’. When
only the land without any right of way was severed by the advent of the railway, the level crossing
provided was for the purpose of making a link between the severed parts of land under the same
occupation and hence was an ‘‘occupation crossing’’.
[755]
so that it can be stopped within the limit of the driver’s vision.403 The degree of
care to be exercised by a train driver approaching such a crossing is not as high
as for a public level crossing. Further, where the driver of a tractor had sustained
fatal injuries in a collision with a train at an accommodation level crossing on a
foggy morning, it was held that the railway authorities were not bound to take
any special precautions in foggy conditions.404 They,
‘‘need not at common law go so far as to turn an accommodation crossing into a public
level crossing, with all the statutory obligations incident thereto; but they must do all
that could reasonably be required of them, in the way of warnings, whistles and so forth,
to reduce the danger to people using the crossing.’’405
Also, when it is known that the public are using a private road crossing, there
is a duty to take reasonable care to make the crossing safe. A notice, ‘‘Beware of
the trains’’406 was held to be insufficient.
10–134 There is a duty not to expose users of the crossing to any perils, beyond those
ordinarily inherent in the user of an accommodation crossing. Normally, if there
is nothing in the layout of the crossing to call for special precautions,407 the
railway undertakers will not be liable, unless there can be established negligence
on the part of the crew of the train. The duty of the engine driver is not the same
as that of the driver of a motorcar. In particular, he is not bound to look out for
either highway traffic, such as motor vehicles, approaching a crossing,408 or for
pedestrians, such as a railway employee, who was walking to his place of work
along the line.409
10–135 When railway undertakers agreed with contractors to construct and maintain a
temporary level crossing over a railway line, to enable timber to be carried
across, their duty was to take reasonable precautions for the safety of persons
who were using the crossing for such purposes. They were liable for the death of
a lorry driver, who was killed by a railway train, when he was driving a load of
timber over the crossing.410
403
Knight v G.W. Ry [1943] K.B. 105 (the whistle was sounded where the whistle board was placed);
Short v British Railways Board (1974) 118 S.J. 101.
404
Hazell v British Transport Commission [1958] 1 W.L.R. 169. This followed Kemshead v British
Transport Commission [1958] 1 W.L.R. 173, where a car, having reached the crossing, the gates of
which had been left open, proceeded immediately over it in foggy conditions and was struck by a
train.
405
Lloyds Bank Ltd v Railway Executive [1952] 1 All E.R. 1248, per Denning L.J. (the defendants
were liable both for breach of statutory duty, in failing to employ a gatekeeper, and in negligence, for
failing to have a whistle board ; the deceased was guilty of contributory negligence to the extent of
one-quarter.) See also Smith v L.M.S., 1948 S.C. 125, both of which were distinguished in Lloyds
Bank Ltd v British Transport Commission [1956] 1 W.L.R. 1279.
406
Smith v Smith and The Railway Executive [1948] W.N. 276.
407
Special precautions were held to have been necessary at an ‘‘extraordinarily dangerous’’ crossing
near Hexham, Northumberland, on the Newcastle upon Tyne to Carlisle main line and the Board’s
failure to provide safety precautions within seven weeks of the matter having been brought to its
notice, was held to be negligent: Skeen v British Railways Board [1976] R.T.R. 281.
408
Lloyds Bank v British Transport Commission [1956] 1 W.L.R. 1279.
409
Trznadel v B.T.C. [1957] 1 W.L.R. 1002 at 1006, per Morris L.J. See further n.414, below.
410
Anderson v John M. MacDonald Ltd (1954) 104 L.J. 762.
[756]
CARRIERS 10–139
Persons present on the track. Although a train driver’s duty is different from 10–136
that of a driver on a road,411 nevertheless, he must still take reasonable care to
keep a look out along the track ahead, in order to avoid, if possible, persons who
may be in a position of danger either on or near the rails.412 If there is a duty to
warn in the circumstances, then it must be to make the warning effective. Thus,
a train driver was found to be negligent in giving only a short blast on his whistle,
instead of a prolonged one, when driving along a dangerous part of the track
during a dark and stormy morning.413 Where an employee of the railway
authorities was injured by a passing train whilst he was walking along the track,
however, the engine driver was not negligent in failing to see him.414 A driver is
not under any duty to keep any special look out for animals which may have
strayed on to the track.415
Shunting. When shunting operations are taking place, railway authorities are 10–137
under a duty to give warning to persons who are likely to be injured if no warning
were to be given. Failure to give such warning or to keep a look out for persons
whose presence on the line ought to be anticipated was held to be evidence of
negligence.416 They are ‘‘under a duty to conduct their shunting operations with
due care for the safety of all persons lawfully going over the level-crossing on
business bent’’.417 Railway authorities, which owned and worked lines in a
dockyard, were under no obligation, before carrying out shunting, to shut the
dock gates, which opened on to a public street.418 Conducting noisy shunting
operations, so that a number of cattle were frightened whilst being driven on a
nearby siding, was evidence of negligence.419
Where a chargeman examiner was examining a stationary damaged wagon, 10–138

which was suddenly shunted into so violently that he was startled and fell,
injuring himself, it was held that, as the claimant’s injury was foreseeable, the
defendants were liable for their shunter’s negligence in allowing abnormal
shunting, which had produced such an unnecessarily loud and violent crash.420
International carriage by railways. The Convention concerning Inter- 10–139

national Carriage by Rail (COTIF) has the force of law in the United Kingdom
by the Railways (Convention on International Carriage by Rail) Regulations
2005. The Convention introduces a uniform rules governing international
411
Lloyds Bank v British Transport Commission [1956] 1 W.L.R. 1279.
412
Conway v B.T.C. (1962) 106 S.J. 78
413
Geddes v B.R.B. [1957] 112 S.J. 194.
414
Trznadel v B.T.G. [1957] 1 W.L.R. 1002. But where workmen are working on the maintenance of
the permanent way itself, see Judson v B.T.C. [1954] 1 W.L.R. 585; Reilly v B.T.C. [1957] 1 W.L.R.
76; Hicks v B.T.C. [1958] 1 W.L.R. 493; Cade v B.T.C. [1959] A.C. 256.
415
Beddie v B.T.C. (1957) 74 Sh.Ct.Rep. 130.
416
Jones v G.W. Ry (1930) 47 T.L.R. 39; Paul v G.E. Ry (1920) 36 T.L.R. 344; Grant v G.W. Ry
(1898) 14 T.L.R. 174.
417
Ross v Railway Executive, 1948 S.C.(HL) 58, per Lord Uthwatt (deceased killed while crossing
railway line between wagons during shunting—he ‘‘walked into a danger which was obvious to an
ordinary man’’—Railway Executive not liable).
418
Clark v N.B. Ry, 1912 S.C. 1.
419
Sneesby v L. & Y. Ry (1875) 1 Q.B.D. 42.
420
Slatter v British Railways Board (1966) 110 S.J. 688 at 710.
[757]
carriage by rail: the Uniform Rules Concerning the Contract of International

Carriage of Passengers by Rail (CIV) and the Uniform Rules Concerning the
Contract of International Carriage of Goods by Rail (CIM).
(C) Road Carriage
10–140 Duty generally. The general principles of law, as set out above in relation to
railways, apply to road carriage, with the necessary modifications. The carriers’
liability as to the condition of the vehicle, which the intending passenger enters
as a lawful visitor, is under the Occupiers’ Liability Act 1957 and the duty owed
is the common duty of care, which has already been explained.421
10–141 Collisions. Liability for a collision on the highway depends on proof of

negligence of those in charge of the vehicles involved. As with any highway
collision, an insured passenger in a public conveyance can sue the owners of the
vehicles, including the one in which he is travelling, even though there may also
have been fault on the part of some third party whose negligence contributed
towards the happening of the accident.
10–142 Passengers struck by external objects. The fact of a collision between a

passenger in a vehicle and a stationary object on the highway, is evidence of
negligence against the person in charge of the vehicle. An evidential burden
arises to show that the collision arose without negligence.422 Thus, where a child
was sitting with her elbow protruding through an open window of the defendant’s
bus and the bus pulled away from the kerb so close to a pole that her elbow was
struck, it was held that the defendants’ driver ought reasonably to have foreseen
the possibility of such an accident happening and the defendant was liable.423
Where a driver knows or ought to have realised that the trees were a potential
source of danger and that they might overhang the highway, he should give them
a wide berth.424
10–143 Defective apparatus. When a passenger in a tram was injured through a

trolley arm becoming detached from the wire and striking him on the head, it was
evidence of negligence against the owners of the vehicle. However, on proof the
tram was in good order, was properly worked and every possible precaution had
been taken to secure the safety of passengers, it was held that the prima facie case
of negligence had been rebutted.425 Where the wheel of a bus was wrenched off
421
paras 10–88 to 10–90, above and, generally, Ch.8. For the obligatory road testing of motorve-
hicles, see the Road Traffic Act 1988 ss.46–53. Part II of the 1988 Act deals generally with the
‘‘Construction and Use of Vehicles and Equipment’’ and s.41 provides for the Secretary of State to
make appropriate regulations, of which there are many in force.
422
Isaac Walton & Co v Vanguard Motorbus Co (1908) 25 T.L.R. 13; Barnes Urban District Council
v London General Omnibus Co (1908) 100 L.T. 115; Ellor v Selfridge & Co Ltd (1930) 46 T.L.R.
236; Radley v L.P.T.B. [1942] 1 All E.R. 433 (claimant succeeded where a bus collided with
overhanging branch). See also Simon v London General Omnibus Co (1907) 23 T.L.R. 463; Hase v
London General Omnibus Co (1907) 23 T.L.R. 616 and Trinder v G.W. Ry (1919) 35 T.L.R. 291.
423
Bohlen v Perdue [1976] 1 W.W.R. 364, Alberta Sup. Ct.
424
Hale v Hants & Dorset Motor Services [1947] 2 All E.R. 628 (the trees were planted by the Poole
Corporation, which was held liable for allowing them to overhang the highway, the liability being
apportioned two-thirds to the corporation and one-third to the motor company).
425
Newberry v Bristol Tramways Co (1912) 107 L.T. 801.
[758]
CARRIERS 10–145
by tramlines there was prima facie evidence of negligence against the bus
company.426 The fact of a breakdown of the vehicle is evidence of negligence on
the part of carriers, throwing upon them the burden of showing that they had
exercised reasonable care and skill in detecting and remedying defects but the
onus is a very heavy one to discharge. This is well illustrated in Henderson v H.E.
Jenkins & Sons,427 where the House of Lords laid down that the standard of care
is a high one, having regard to modern traffic conditions.
Injury caused by one passenger to another. It is the duty of those in charge 10–144
of public conveyances to take reasonable care to prevent them from being
overcrowded428 and, also, to take reasonable care to prevent persons who are
likely to be dangerous to other passengers, by reason of disease, drunkenness, or
a declared intention to use violence, to enter the vehicle. Where a drunk was
allowed to enter a tram and he pushed a woman and her baby down from the top
of the vehicle, so that she was injured and the baby was killed, the vehicle’s
owners were liable.429
Stopping and starting. There is a duty to exercise reasonable care in starting 10–145
and stopping. If a vehicle is started with such a jerk as to injure a passenger then
that would indicate negligence on the part of the driver,430 although absolute
smoothness in starting and stopping cannot be expected.431 There is no general
duty upon the driver of a bus to wait until all boarding passengers have taken
their seats before moving off, although if there is some particular risk, for
example, in the case of the elderly or infirm, or a passenger encumbered with
luggage or children then special care may have to be taken.432 A driver may be
required to take reasonable care to stop his passengers from acting negligently, in
certain circumstances.433 A taxi driver owes no special duty of care towards an
inebriated passenger in choosing a place at which to set him down.434
426
Lilly v Tilling Ltd (1912) 57 S.J. 59.
427
[1970] A.C. 282 (a sudden failure of brakes owing to loss of brake fluid through a corroded hole
in the pipe at a place beneath the vehicle which was inaccessible to routine weekly visual inspec-
tions).
428
Pickering v Belfast Corp [1911] 2 Ir.R. 224, See also para.9–102, above, dealing with
overcrowding on railways.
429
Murgatroyd v Blackburn Tramways (1887) 3 T.L.R. 451.
430
Holland v North Metropolitan Tramways (1886) 3 T.L.T. 245; Geeves v London General Omnibus
Co (1901) 17 T.L.R. 249.
431
Manengela v Bay Passenger Transport Co Ltd 1971 (4) S.A. 293.
432
Fletcher v United Counties Omnibus Co Ltd [1998] P.I.Q.R. P154. cf. Azzopardi v State Transport
Authority (1982) 30 S.A.S.R. Many of the older cases concern the behaviour of conductors (now
something of a rarity) see: Mottram v Lancashire Transport Co [1942] 2 All E.R. 452 (giving the
signal to move off when passengers are waiting to alight); Wagner v West Ham Corp (1920) 37 T.L.R.
86 (passenger giving the starting signal too soon: no liability); Davies v Liverpool Corp [1949] 2 All
E.R. 175 (passenger giving starting signal when the conductor was absent from the platform for an
appreciable time: liability established) cf. Martin v Dublin United Tramways [1908] 2 Ir.R. 13;
Prescott v Lancashire United Transport Co [1953] 1 W.L.R. 232 (bus halted short of the authorised
stop: conductor should have given a warning not to alight prematurely);
433
Curley v Mannion [1965] I.R. 543.
434
Griffiths v Brown, The Times, October 23, 1998 (alternatively it was said that even if a special duty
existed it was not broken on the facts since the passenger’s condition was not such as to make it
obvious that he was incapable of taking care of his own safety in crossing the road).
[759]
10–146 It does not amount to contributory negligence on the part of a passenger to

stand on the footboard, whilst waiting for a vehicle to stop, after a signal to stop
has been given,435 but if no signal to stop has been given, the passenger who
stands on the step in anticipation of the tram stopping and sustains an injury, may
find himself without a remedy.436
10–147 Boarding and alighting from vehicle in motion. If a passenger attempts to

board a vehicle in motion, he does so at his own risk and the only duty of those
in charge of the vehicle is not to act in reckless disregard of his safety. Where a
drunk attempted to get on to a tram in motion and the conductor pushed him off,
so that he fell and was injured, it was held, robustly, that he could not recover
damages. He had wrongfully attempted to force himself on to the tram and had
placed the conductor in a difficulty; the conductor, in the circumstances, had not
acted with such want of care as to cause the accident.437
10–148 A passenger who attempts to leave a vehicle which is still in motion, may, at
least, be guilty of contributory negligence.438 Where the door through which a
passenger was about to alight was opened by the driver or conductor and the
passenger was forced out by the pressure of other passengers behind, his action
in damages succeeded.439 On the other hand, where a passenger on a double-
decker bus was injured after he had lurched out and fallen through the open
folded door of the vehicle from the platform, on which he was standing in order
to alight, it was held by the House of Lords that the defendants were not liable.
Since there were sufficient handholds, their failure to provide a central pillar in
the doorway or else to institute a system whereby the door was kept closed until
the vehicle had become stationary, was not negligent in the circumstances.440
10–149 Operation of the doors. A driver owes a duty to operate the doors of a bus
so with reasonable care. In Bollito v Arriva London,441 a bus driver allowed a
passenger, who had run after the bus, to embark whilst the bus was stationary at
some traffic lights. As the claimant stood on the platform by the doors, waiting
for his companions to catch up the bus, the driver negligently closed the doors,
trapping the claimant and causing him to fall from the bus.
10–150 Statutory duties. By reg.5 of the Public Service Vehicles (Conduct of

Drivers, Inspectors, Conductors and Passengers) Regulations 1990,442 a driver or
435
Hall v London Tramways (1896) 12 T.L.R. 611; see also Watt v Glasgow Corp, 1919 S.C. 300 and
Anderson v Belfast Corp [1943] N.I. 34.
436
Caldwell v Glasgow Corp, 1936 S.C. 490; Jude v Edinburgh Corp, 1943 S.C. 399.
437
Delany v Dublin United Tramways (1892) 30 L.R.Ir. 725, but cf. Cullen v Dublin United
Tramways [1920] 2 I.R. 63, where it was held that there was evidence of negligence on the part of
the conductor, who had refused to allow an intending passenger to climb aboard the slowly moving
vehicle, which was full to capacity, at a stopping place whereupon the man had had to jump back off
the step.
438
McSherry v Glasgow Corp, 1917 S.C. 156. See, Ch.4, paras 4–03 to 4–72, above.
439
Pickering v Belfast Corp [1911] 2 I.R. 224.
440
Wyngrove v Scottish Omnibuses, 1966 S.C. (HL) 47.
441
[2008] EWHC 48 (QB).
442
SI 1990/1020, re-enacting with amendments the Public Service Vehicles (Conduct of Drivers,
Inspectors, Conductors and Passengers) Regulations 1936 (S.R. and O. 1936/619).
[760]
CARRIERS 10–153
a conductor is obliged to take all reasonable precautions for the safety of

passengers who are on, or who are entering or leaving a public service vehicle.
Where the conductor controls the door of a public service vehicle, he should not
cause it to be opened before the vehicle stops.443 Whilst this regulation imposes
a duty of care with regard to passengers entitled to enter the vehicle, none is
imposed with regard to a passenger who attempts to board the vehicle in
motion.444 Any intending passenger who attempts to board a bus which is not at
a bus stop but either when it has stopped at traffic lights or has halted elsewhere,
does so at his own risk.445 The receipt of a signal to proceed, which has been
given by the conductor, cannot absolve the driver of a bus from his duty to take
reasonable care for an intending passenger’s safety. Thus, where a driver moved
off while a passenger was still in the act of climbing aboard, liability was
established.446
Damage caused by driving. The driver owes a duty of care to passengers to 10–151
drive with reasonable care.447 This duty is owed to both seated as well as
standing passengers, whether the latter are holding on or not.448 A sudden swerve
causing injury to a passenger can be evidence of negligence449; in contrast the
mere fact that a passenger was flung through the open door was not.450 Usually,
the sudden application of the brakes, which injures a passenger, is evidence of
negligence, but where it was done to avoid running over a dog, the driver was not
liable, since he had acted with reasonable care in an emergency.451 Driving a bus
at such a speed as to cause a passenger who suffers poor health to become ill, is
not negligent: the driver is entitled to assume normal health in his pas-
sengers.452
Contracts restricting liability. A contract restricting liability in respect of the 10–152

death or bodily injury to a passenger either in a public service vehicle or any
other vehicle453 is void.
Hackney carriage passengers. A person who accepts another as a passenger 10–153

in a hackney carriage or other road vehicle is bound to exercise reasonable care
for the safety of the passenger and of whatever he brings with him into the
443
Nicholson v Goddard (1954) 118 J.P. 394.
444
Reid v MacNichol, 1958 S.L.T. 42.
445
Police v Okoukwo [1954] Crim.L.R. 869 but see Bollito v Arriva London [2008] EWHC 48 (Q.B.)
para.10–149, above.
446
McLaughlin v Glasgow Corp (1963) 79 Sh.Ct.Rep. 172.
447
Sutherland v Glasgow Corp, 1951 S.C. 1; [1951] W.N. 111 (sudden braking to avoid a collision
with a dog, shortly after the tram had been put in motion and while the pursuer was making her way
to her seat).
448
Western Scottish M.T. Co v Allam [1943] 2 All E.R. 742.
449
O’Hara v Scottish M.T. Co, 1941 S.C. 363; Doonan v S.M.T. Co, 1950 S.C. 136.
450
Johnstone v Western S.M.T. Co (1955) 105 L.J. 762.
451
Parkinson v Liverpool Corp [1950] 1 All E.R. 367; Wooller v London Transport Board [1976]
R.T.R. 206, CA.
452
Walker v Pitlochry Motor Co, 1930 S.C. 565.
453
See the provisions of the Unfair Contract Terms Act 1977, which are discussed in detail in Ch.4,
paras 4–84 to 4–86, above, in connection with business liability.
[761]
vehicle. A taxi driver owes no special duty of care towards an inebriated

passenger in choosing a place at which to set him down.454
10–154 Under the London Hackney Carriages Acts the registered proprietor of a
hackney carriage is liable for the negligence of the driver, whether or not the
relation of employer and employee exists between them.455 So, if the passenger
is injured or his luggage is lost owing to the negligence of the driver, the
proprietor is liable.456 Liability is imposed not only on the licensed proprietor but
also on the actual proprietor, so that where a hackney carriage was owned by the
defendant and her son, but the son alone was registered as proprietor, it was held
that the defendant was liable.457 Under the Town Police Clauses Act 1847
ss.37–68,458 the registered proprietor of a hackney carriage is liable for the
negligence of the driver while plying for hire.459
10–155 Gratuitous rides. A person who gratuitously gives another a ride in a vehicle
is liable to the passenger for any damage, caused by the driver’s negligence. It is
the same whether he drives himself or another does so.460 He is under a duty to
warn his passenger of a danger which is known to him but unknown to his
passenger, such as a low bridge, that is dangerous to persons inside the vehi-
cle.461
10–156 Seat belts. The wearing of a seat belt is both a wise precaution for drivers and
passengers and, save for exemptions, compulsory.462 A driver or passenger who
fails to wear a seat belt will be regarded as failing to take reasonable measures
for their own safety. Since Froom v Butcher463 it has been well settled that a
passenger involved in an accident caused by the fault of another, is liable to a
finding of contributory negligence to the extent that it can be shown that the
wearing of a seat belt in the particular circumstances of the accident would have
454
Griffiths v Brown [1999] P.I.Q.R. P131 (alternatively if a special duty existed on the facts it was
not obvious that the passenger was not capable of taking care for his own safety).
455
Keen v Henry [1894] 1 Q.B. 292; King v London Improved Cab Co (1889) 23 Q.B.D. 281;
Venables v Smith (1877) 2 Q.B.D. 279.
456
Powles v Hider (1856) 6 E. & B. 207.
457
Gates v Bill & Son [1902] 2 K.B. 38.
458
Repealed as to public service vehicles, Road Traffic Act 1930 Sch.V, in turn repealed by the
Statute Law Revision Act 1950. The law as to hackney carriages applies to motorvehicles: Road
Traffic Act 1988 s.191.
459
Bygraves v Dicker [1923] 2 K.B. 585.
460
Pratt v Patrick [1924] 1 K.B. 488; Samson v Aitchison [1912] A.C. 844; Smith v Harris [1939]
3 All E.R. 960; Miller v Liverpool Co-operative Soc. Ltd [1940] 4 All E.R. 367 (affirmed [1941] 1
All E.R. 379n.). For liability for acts of agents, see Ch.3, paras 3–160 to 3–171, above.
461
Lewys v Burnett & Dunbar [1945] 2 All E.R. 555.
462
A person of 14 years of age or more must wear a seat belt in the front seats of a motor vehicle
and in the rear of a motor car, subject to various exemptions—the Road Traffic Act s.14 and the
Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (SI 1993/176) regs.5 & 6. Child restraints
must be used for children of up to 12 years of age or 1.35m in height. Children of age 12 and 13 or
over 1.35m in height must wear an adult seat belt—the Road Traffic Act s.15 and the Motor Vehicles
(Wearing of Seat Belts by Children in Front Seats) Regulations 1993 (SI 1993/31) and the Motor
Vehicles (Wearing of Seat Belts by Children in Front Seats) (Amendment) Regulations 2006 (SI
2006/2213).
463
[1976] Q.B. 286.
[762]
CARRIERS 10–159
prevented or reduced the injuries sustained. As usual where issues of contribu-

tory negligence arise, the court should consider both the causative potency and
the blameworthiness of the relevant act of neglect. In road traffic accidents the
principle negligence is that which caused the accident in the first place; the
failure to wear a seat belt may cause the damage sustained to be more severe. In
Froom, Lord Denning M.R. suggested that where the wearing of a seat belt
would have prevented the damage from being sustained altogether the appro-
priate reduction for contributory negligence should be 25 per cent; where the
wearing of the seat belt would have reduced the severity of the injury sustained
to a considerable degree the appropriate reduction should be 15 per cent; and
where the wearing of a seat belt would have made no difference to the outcome
there should be no reduction.464 The burden of proving that the wearing of a seat
belt would have reduced or eliminated the injuries sustained lies on the
defendant. The suggested deductions now have some weight of practice behind
them and will generally be regarded as binding unless the facts of a case are
exceptional.465 Attempts to persuade courts at first instance to depart from the
guidelines have been rejected.466
The driver’s duty to exercise reasonable care and skill for the safety of his 10–157
passengers does not require, in the absence of special circumstances, a request to
wear a seat belt if one is provided. The driver of a car has a legal responsibility
to ensure that a passenger under the age of 14 years uses a seat belt or child
restraint if one is available.467
International carriage by road. The Convention on the Contract for the 10–158
International Carriage of Passengers and Luggage by Road of 1973 has never
been ratified by the United Kingdom. The Carriage of Goods by Road Act
1965468 gives effect in the United Kingdom to the Convention on the Contract for
the International Carriage of Goods by Road, signed at Geneva which is known
as the CMR Convention. Detailed consideration of this subject is outside the
scope of this book.
(D) Ships
Generally. The liabilities of ship owners towards passengers are governed by 10–159
the Merchant Shipping Act 1995. The provisions of the Convention relating to
the Carriage of Passengers and their Luggage by Sea (the Athens Convention)
and the Convention on Limitation of Liability for Maritime Claims 1976 are
464
See, e.g. Stanton v Collinson [2010] EWCA Civ 81 (no seat belt worn by front seat passenger with
another passenger on his lap where expert evidence not clear that his injuries would have been
materially less had a belt been worn).
465
J v Wilkins [2001] P.I.Q.R. P179, CA.
466
See, e.g. Gawler v Raettig [2007] EWHC 373 (Q.B.) and Stanton v Collinson, above, at [2009]
EWHC 342 (Q.B.).
467
See n.462, above.
468
Which came into operation on June 5, 1967, by virtue of the Carriage of Goods by Road Act 1965
(Commencement) Order 1967 (SI 1967/819).
[763]
given the force of law in the United Kingdom.469 The time-limit for bringing
proceedings regarding damage or loss caused by the fault of a ship to another
ship, its cargo or freight or any property on board it or for damages for loss of
life or personal injury caused by the fault of that ship to any person on board
another ship, is two years.470
10–160 The Athens Convention. Under the Athens Convention471 a carrier is liable
for damage as a result of the death of or personal injury to a passenger and for
the loss of or damage to luggage, if the incident which caused the damage
occurred in the course of the carriage and was due to the fault or neglect of the
carrier or of his employees acting within the scope of their employment.472 Fault
or neglect is presumed, unless the contrary is proved, if the death or personal
injury or damage to cabin luggage arose in connection with the shipwreck,
collision, stranding, explosion or fire, or defect in the ship.473 In relation to
passengers and their luggage carriage means the period during which the
passenger is on board the ship or in the course of embarkation or disembarkation
and includes transport by water from land to the ship or vice versa if the cost of
such transport was included in the fare.474 Death or personal injury or damage to
luggage caused by negligence of the passenger can exonerate the carrier either
wholly or partly.475 The carrier’s liability for death or personal injury cannot
exceed 46,666 units of account476 per case.477 The carrier is not entitled to limit
his liability if the damage resulted from an act or omission done with the intent
to cause such damage or recklessly and with knowledge that damage would
probably result.478 No action can be brought otherwise than in accordance with
the Convention.479 Limitation periods are provided for in art.16, which is brought
into effect in domestic law by s.190 of the Merchant Shipping Act 1995, as
already discussed above.480
469
The Merchant Shipping Act 1995 s.183(1) and s.185(1) respectively. See generally, Giddins,
‘‘Accidents do happen: boating PI claims’’ 153 N.L.J. 1879.
470
The Merchant Shipping Act 1995 s.190.
471
Formally known as the Convention Relating to the Carriage of Passengers and their Luggage by
Sea 1974, a protocol to the convention was agreed on November 1, 2002. This protocol will come
into force twelve months after the date on which ten states have ratified it.
472
The Athens Convention art.3(1).
473
The Athens Convention, art.3(3).
474
The Athens Convention, art.1(8)(a).
475
The Athens Convention, art.6.
476
A unit of account is a Special Drawing Right as defined by the International Monetary Fund.
477
The Athens Convention, art.7. The Convention states a limit of 300,000 units of account but in
relation to carrier whose principal place of business is the UK the limit is set at 46,666 units by the
Carriage of Passengers and their Luggage at Sea (United Kingdom Carriers) Order 1998. Pursuant to
art.8 the limit of liability relating to luggage is: 833 units of account per passenger per carriage in the
case of cabin luggage; 3,333 units of account per vehicle per carriage in the case of vehicles including
all luggage carried in or on the vehicle; and 1,200 units of account per passenger per vehicle in the
case of any other luggage.
478
The Athens Convention, art.13(1). See Goldman v Thai Airways [1983] 1 W.L.R. 1186, CA, per
Purchas L.J. at 1202; Gurtner v Beaton [1993] 2 Lloyd’s Rep. 369; Nugent v Michael Goss Aviation
Ltd [2000] P.I.Q.R. P175, CA and MSC Mediterranean Shipping Co SA v Delumar BVBA [2000] 2
Lloyds Rep 39.
479
The Athens Convention art.14.
480
See Ch.4, paras 4–231 to 4–232, above.
[764]
CARRIERS 10–164
Safe access. A shipowner owes a duty to the passengers to take reasonable 10–161
care to provide safe access to the ship. Where, therefore, passengers were taken
to a hulk, from which they were to board a steamship, and the claimant, after
descending a ladder in the hulk, fell down an open hatchway that had been left
unguarded and imperfectly lighted, his action for damages succeeded.481 On the
other hand, the claim for damages failed where a passenger, in embarking on a
ship, slipped from the gangway, which was three inches above the deck’s level
and fractured her ankle. Although she claimed that the gangway was not properly
lighted and that there was no one to help her off the gangway, it was held that the
shipowners, who had embarked 30,000 passengers during the year, without more
precautions at night and in all states of the tide, were not liable.482
Safety on board. On board the ship itself, reasonable care must be taken for 10–162
the safety of passengers. Where there was no ladder provided to enable a female
passenger in an upper berth to descend, and the stewards had placed a chair for
the purpose but the passenger slipped, hurting herself, it was held that the
shipowners were liable. It was their duty ‘‘to provide means by which passengers
might get out of their berths without danger of falling.’’483 Liability also attached
where the porthole glass in a cabin was not properly secured but was revolving
at a high speed, so that the passenger’s hand was injured when he attempted to
draw the curtains aside.484 Reasonable care must also be taken to provide
accommodation for passengers’ luggage, so that where luggage was stowed in a
vacant lavatory, which became flooded as a result of an overflow of water from
an adjoining lavatory, the shipowners were liable.485
Where the floor of the passage outside a passenger’s cabin had been made 10–163
slippery by washing, liability for the claimant’s slip was not established where he
had seen what was done486 although it was said that ‘‘wholly different
considerations would arise if the steward had gone away, leaving the floor wet
and slippery, without taking steps to warn perambulating passengers of its
condition’’.487
As with motor vehicles,488 it is no answer to a claim in negligence against the 10–164

owner of a vessel to prove a system of inspection, maintenance and repair, if the
proof does not explain how a mechanical fault causative of injury could arise in
spite of the exercise of reasonable care. So, in Binnie v Rederij Theodoro BV489
where injury was caused to a port operator struck by a rope being used in an
attempt to arrest the forward progress of a ship, the reverse engine of which had
failed to operate in a lock, it was held that once on the evidence a prima facie
481
John v Bacon (1870) L.R. 5 C.P. 437; this was so, in spite of the fact that the shipowner had only
the right to use the hulk on the ground that the claimant was invited to use it.
482
Cameron v L.M.S Ry (1936) 54 Ll.L.R. 95.
483
Andrews v Little & Co (1887) 3 T.L.R. 544.
484
Jones v Oceanic Steam Navigation Co [1924] 2 K.B. 730 (the company was however absolved
from liability by the conditions of the contract).
485
Upperton v Union-Castle Mail Steamship Co (1902) 19 T.L.R. 687.
486
Beaumont-Thomas v Blue Star Line Ltd [1939] 3 All E.R. 127.
487
Beaumont-Thomas v Blue Star Line Ltd [1939] 3 All E.R. 127 at 135, per Goddard L.J.
488
See Henderson v Henry E. Jenkins & Sons [1970] A.C. 280, para.10–247, below.
489
1993 S.C. 1993.
[765]
case of negligence was raised, the burden passed to the defenders to explain how
the accident could have occurred, consistent with the exercise of reasonable care.
It was insufficient to lead evidence only of an engine inspection two months
beforehand.
10–165 Employees. The health and safety of those working on board ships is
protected by statutory duties similar to those applicable to onshore workers. It
has been observed however that in framing such legislation, Parliament adopted
a different approach as between fisherman and other workers at sea.490 A system
of certification was enacted to protect the former so that a fishing vessel could not
go to sea without there being in force in respect of it a certificate issued by the
Secretary of State after a survey to ensure that the vessel complied with the
relevant rules.491 In the case of other workers at sea they had a civil right of
action for damages when a breach of statutory duty caused them to suffer
injury.492
10–166 The Carriage of Goods by Sea Act 1971. The Act493 gives effect to
amendments to the Hague Rules, relating to the Carriage of Goods by Sea
contained in the Protocol, agreed internationally in Brussels in 1968,494 and
repeals the Carriage of Goods by Sea Act 1924, which gave effect in the United
Kingdom to the Hague Rules in their original form. The Brussels Protocol made
two main amendments to the Rules,495 the first of which increased the limits of
liability under the Rules and made new provisions concerning the qualification of
amounts, and the second extended the defences and limits of liability of the
carrier496 to his servants or agents, provided that they are not independent
contractors.
10–167 Where a shipper discovered that cattle feed has become contaminated with
lead during transportation, he discharged his duty of care by arranging for a
reputable salvor to destroy it, and he was not liable in negligence when the salvor
in fact sold it on.497
490
See Ziemniak v ETPM Deep Sea Ltd [2003] EWCA Civ 636; The Times, May 15, 2003, CA.
491
The system is described in Todd v Adams [2002] 2 Lloyd’s Rep. 293.
492
Ziemniak v ETPM Deep Sea Ltd, n.490, above (The claimant, a marine engineer, suffered serious
injuries when testing the launching and recovery of lifeboats on board a merchant vessel and a
suspension chain holding one of the lifeboats failed when he was sitting in it, causing the lifeboat to
fall to the water below. It was held, distinguishing Todd v Adams, n.491 above, that he could rely upon
the defendants’ breach of reg.43(1) of, and Pt II(c) of Sch.16 to, the Merchant Shipping (Life Saving
Appliances) Regulations 1980).
493
It was passed on April 8, 1971 and came into force on June 23, 1977, by virtue of SI 1977/981.
See article on the Act, Powles [1978] J.D.L. 141 and O’Hare, ‘‘The Duration of the Sea Carriers’
Liability’’ 6 A.B.L.R. 65.
494
Cmnd. 3743.
495
Namely those contained in Arts IV(5) and IV bis. See, e.g. Effort Shipping Co Ltd v Linden
Management S.A. [1998] A.C. 605, HL.
496
Whenever loss or damage has resulted from unseaworthiness, the burden of proving the exercise
of due diligence shall be on the carrier or other person claiming exemption under art.IV. Article
IV(2)(c) precludes liability for perils of the sea. Foreseeability of bad weather does not prevent such
immunity attaching: Great China Metal Industries Co Ltd v Malaysian International Shipping Corp
BHD (The Bungo Seroja) [1999] 1 Lloyd’s Rep. 512, H.C.(Aus).
497
Hanford Feeds Ltd v Alfred C. Toepfer International GmbH (1996) C.L.Y. 5300, CA.
[766]
CARRIERS 10–171
(E) Aircraft
(i) Common law liability

At common law, the liability of the owner of an aircraft does not differ from 10–168
that of the owner of a highway vehicle. An aircraft at rest is relatively harmless
and even in motion is not an inherently dangerous thing or a thing dangerous in
itself.498 Accordingly, the principle of Rylands v Fletcher499 does not apply to it.
The result is that, apart from statutory provisions,500 liability for aircraft is based
on negligence. When negligence is in question, the principle res ipsa loquitur
applies.501 So, when an aircraft took off and crashed just outside the aerodrome
‘‘well before it had attained the height at which the journey would be
performed’’, the doctrine was applied and the owners were held liable for the
death of a passenger in the aircraft at the time of the crash.502
An aircraft company was held liable when a man who was seeing his wife and 10–169
daughter off was led to a position by one of the servants of the company and
killed by one of the revolving propellers. The occupiers of the airfield were held
not liable.503
The owners’ liability as to the condition of the aircraft, which the intending 10–170
passenger enters as a lawful visitor, is under the Occupiers’ Liability Act 1957
and, as already explained,504 the duty owed is the common duty of care.
Liability of pilot. It is the duty of a pilot505 to take reasonable care at all 10–171
material times, which must includes making all necessary and proper inquiries
concerning the proposed flight, making sure of the availability of any items of
equipment required during the flight, filing a flight plan, carrying out the proper
preflight checks on the aircraft, keeping a proper lookout during the taxi-ing, take
off and the flight, and carrying out the requisite checks before attempting to land
at the airfield of destination. Where a light aircraft crashed on approaching the
runway for landing, when it got caught in turbulence caused by a large jet
aeroplane which had made a practice approach only to overshoot deliberately, it
was held that the accident was the sole responsibility of the light aircraft’s pilot.
The air traffic controller at the airport was under no obligation either to warn of
turbulence or to prescribe separation distance, prior to his giving the pilot landing
clearance.506 Likewise, the pilot was held entirely to blame for using an approach
procedure that had been superseded, as a result of which he missed the runway
and crashed into a nearby mountain. There was no responsibility resting on the
498
See Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108 at 112, per Goddard J.
499
(1866) L.R. 1 Ex. 265; 3 H.L. 330; 37 L.J. Ex. 161.
500
Explained in para.10–173, below.
501
See further Ch.6, paras 6–100 to 6–131, above.
502
Fosbroke-Hobbes v Airwork Ltd [1937] 1 All E.R. 108. See also George v Eagle Air Services Ltd,
The Times, May 15, 2009, PC, Ch.6, para.6–117, above (owners liable for unexplained crash arising
as an apparently airworthy aircraft came in to land).
503
Waring v East Anglian Flying Services Ltd [1951] W.N. 55.
504
See para.10–88, above.
505
See Abeyratne, ‘‘Negligence of the airline pilot’’ (1998) 4 P.N. 219.
506
Sexton v Boak (1972) 27 D.L.R. (3d) 181.
[767]
air traffic controller to monitor the aircraft’s descent to the runway and its course,
after the pilot had accepted the clearance to land, unless it was for the purpose
of providing separation between aircraft.507 Both pilots were to blame where as
a result of their failures to ‘‘see and avoid’’ two gliders collided in mid-air.508
10–172 Duty to passengers during flight. In Chisholm v British European Air-

ways,509 the captain of an aircraft received notice of an approaching storm, in
consequence of which the passengers were told to remain seated and to fasten
seat belts. The claimant however left her seat to go to the toilet and, as the aircraft
encountered severe turbulence and plunged violently, fell sustaining injury. It
was held that the warning given had been adequate and liability did not attach.
By way of contrast the defendants were liable in Goldman v Thai Airways
International,510 where the pilot failed to light the sign to fasten seat belts,
although he knew that moderate turbulence had been forecast and the aircraft
struck severe turbulence, which resulted in the claimant being thrown from his
seat and injuring his back. Where an inspector performed an inspection of an
aircraft and certified its airworthy condition, he and his employer, an association
empowered under s.3 of the Civil Aviation Act 1982 to issue a certificate of
fitness for flight, owed a duty of care to a passenger, injured when the aircraft
crashed during a test flight.511
(ii) Civil Aviation Act 1982

10–173 The Civil Aviation Act 1982,512 s.76, provides:
‘‘(1) No action shall lie in respect of trespass513 or in respect of nuisance, by reason only
of the flight of an aircraft over any property at a height above the ground, which, having
regard to wind, weather, and all the circumstances of the case is reasonable, or the
ordinary incidents of such flight, so long as the provisions of any Air Navigation Order
and any orders under section 62 above514 have been duly complied with and there has
been no breach of section 81 below.515 (2) Subject to subsection (3) below, where
507
Churchill Falls (Labrador) Corp Ltd v The Queen (1975) 53 D.L.R. 360. For the duties in
controlling air traffic, see Gilchrist, ‘‘Air Traffic Control—The Operator’s Liability’’ [1977] 2 Lloyd’s
M.C.L.Q. 204.
508
Curran v Derbyshire and Lancashire Gliding Club [2004] EWHC 687 (the leading glider executed
an 180 degree turn without being aware until too late of the presence of the glider following; liability
was apportioned 6040 in favour of the former).
509
[1963] 1 Lloyd’s Rep. 626.
510
(1981) 125 S.J. 413.
511
Perrett v Collins [1999] P.N.L.R. 77, CA. See also Ch.2, para.2–71.
512
Which consolidates certain enactments relating to civil aviation and came into force on August 27,
1982 by virtue of s.110(2). See also the Regulations made under the Act, such as the Rules of the Air
Regulations 1996 (SI 1996/1393), which came into force on June 19, 1996.
513
In Bernstein v Skyviews & General Ltd [1978] Q.B. 479, it was held that the protection given by
the subsection was not limited to a bare right of passage over land, analogous to the limited right of
a member of the public to pass over the surface of a highway, but extended to all flights provided that
they were at a reasonable height, complied with the statutory requirements, and did not constitute a
harassment. (The defendants had taken aerial photographs of the claimant’s country home, Coppings
Farm, Kent).
514
Which relates to control of civil aviation in time of war or emergency.
515
Which relates to ‘‘dangerous flying,’’ a criminal offence.
[768]
CARRIERS 10–174
material loss or damage516 is caused to any person or property on land or water by, or
by a person in, or an article,517 animal or person falling from, an aircraft while in
flight,518 taking off,519 or landing, then unless the loss or damage was caused or
contributed to by the negligence of the person by whom it was suffered, damages in
respect of the loss or damage shall be recoverable without proof of negligence or
intention or other cause of action, as if the loss or damage had been caused by the wilful
act, neglect, or default of the owner of the aircraft. (3) Where material loss or damage
is caused as aforesaid in circumstances in which—
(a) damages are recoverable in respect of the said loss or damage by virtue only of
subsection (2) above, and
(b) a legal liability is created in some person other than the owner to pay damages
in respect of the said loss or damage,
the owner shall be entitled to be indemnified by that other person against any claim in
respect of the said loss or damage.’’
The burden of proving that the loss or damage was either caused by or contributed to
by the negligence of the injured party is on the owner of the aircraft.520
Strict liability. The effect of s.76 is to impose a strict liability on the ‘‘owner’’ 10–174
of the aircraft, as defined in the Act, subject only to the qualified defence of
contributory negligence. The Act clearly contemplates that the owner is liable,
although the damage or loss has been caused by the wrongful act, neglect or
default of a third party. Even if the damage or loss be caused by an ‘‘act of
God,’’521 the reference to liability ‘‘without proof of negligence or intention or
other cause of action’’ seems to indicate that the owner would still be liable.
The owner’s liability, however, is confined to material loss or damage to any
person or property on land or water,522 and does not include loss or damage to
person or property in the air. Liability for damage in the air will accordingly
depend on proof of negligence.523
516
The expression ‘‘loss or damage’’ includes, in relation to persons, loss of life and personal injury:
s.105(1). Psychiatric damage is included provided that the claimant can satisfy the common law rules
as to the categories of person entitled to recover for psychiatric injury: Glen v Korean Airlines
Company Ltd [2003] 3 W.L.R. 273. (For the categories of person entitled to recover for such injuries
where they arise in consequence of the defendant’s negligence see Ch.10, paras 10–123 to 10–131,
above).
517
Which has been held to include a chemical liquid: Weedair (N.Z.) Ltd v Walker [1961] N.Z.L.R.
153, NZCA.
518
Greenfield v Law [1955] 2 Lloyd’s Rep. 696 (the claimant must prove that the damage was caused
whilst the defendants’ aircraft was in flight); see also Piper v Darling (1940) 67 Ll.L.R. 419 (the
plaintiff’s yacht lying in harbour was damaged by the accidental discharge of a torpedo from an
aircraft—liability was admitted).
519
As to the meaning of ‘‘taking off,’’ see Blankley v Godley [1952] 1 All E.R. 436n.
520
Cubitt v Gower (1933) 47 Ll.L.R. 65. In Goldman v Thai Airways International (1981) 125 S.J.
413 no contributory negligence was proved against the injured claimant for not wearing his seat belt,
where the pilot had omitted to order, by illuminating the signs, the passengers to fasten their seat belts
when he knew that the aircraft was likely to meet moderate clear air turbulence, forecast for the flight
over Turkey. However, the trial judge’s finding of common law liability against the defendants was
reversed on appeal [1983] 1 W.L.R. 1186, CA.
521
For the meaning of this expression, see Ch.13, paras 13–35 to 13–39, below.
522
See s.76(2), quoted above.
523
Regulations can be made for the prevention of collisions at sea between seaplanes and vessels on
the surface of the water: s.97(1).
[769]
10–175 Compulsory insurance. A statutory code was enacted with a view to

securing that air operators were compulsorily insured against third-party aviation
risks,524 which adopted that laid down by the Rome Convention 1933. The
United Kingdom has neither ratified nor is bound by this Convention or the Rome
Convention 1952, drawn up to supersede and improve the one of 1933. Indeed,
the relevant sections of the Civil Aviation Act 1949 have been repealed.525
10–176 Liability of hirer of aircraft. Although the strict liability, set out above, is
imposed on the owner of the aircraft, where any aircraft, ‘‘has been bona fide
demised, let or hired out for any period exceeding fourteen days to any other
person by the owner thereof, and no pilot, commander, navigator or operative
member of the crew of the aircraft is in the employment of the owner,’’ the owner
of the aircraft is freed from liability. In such instance, the hirer then becomes
subject to such liability, just as if he were the owner.526
(iii) Carriage by Air Conventions

10–177 The Carriage by Air Conventions. The starting point for the consideration
of the liabilities of air carriers is the Warsaw Convention of 1929.527 This was the
first uniform international code governing the liability of air carriers regarding
injury, loss and damage sustained in the course of and arising out of international
air travel. Successive amendments were agreed and these were consolidated into
the Montreal Convention 1999. These carriage by air conventions have the force
of law in the United Kingdom by s.1 of the Carriage by Air Act 1961 (as
amended).528 All air carriers operating under a licence granted by an European
Union member state are subject to the Montreal Convention as regards liability
to passengers and baggage. The Convention came into force in the United
Kingdom on June 28, 2004.
10–178 The Montreal Convention. The Montreal Convention applies to all inter-
national and non-international carriage of persons, baggage or cargo performed
by aircraft for reward and includes carriage by the state or legally constituted
public bodies. It also includes gratuitous carriage by an air transport undertaking.
An aircraft includes a hot air balloon529 but it does not include a tandem para-
glider.530
524
i.e. the Civil Aviation Act 1949. See s.43, which was the equivalent to the provisions of the Road
Traffic Act 1972 s.143, in the case of motorvehicles used on the road.
525
i.e. by the Companies Act 1967 s.128, which had repealed ss.43–46 and 49(1) of and Sch.6 to the
Act of 1949, and the Civil Aviation Act 1968 s.26, which had repealed ss.42 and 48 of the 1949 Act.
Now, the Civil Aviation Act 1968 s.26 has itself been repealed by the Civil Aviation Act 1982
Sch.16.
526
Civil Aviation Act 1982 s.76(4). See also Greenfield v Law [1955] 2 Lloyd’s Rep. 696 (low-flying
aircraft over a road caused a horse to bolt—the pilot was not the owner of the aircraft).
527
Formally entitled: the Convention for the Unification of Certain Rules Relating to International
Carriage by Air.
528
The carriage by air conventions only have the force of law in the UK to the extent that the Council
Regulation (i.e. Council Regulation (EC) No. 2027/97 (as amended) does not. The EU has effectively
adopted the provisions of the Montreal Convention by the amendments to Council Regulation (EC)
No. 2027/97 by Regulation 889/2002.
529
Laroche v Spirit of Adventure (UK) Ltd [2009] Q.B. 778.
530
Disley v Levine [2002] 1 W.L.R. 785, CA.
[770]
CARRIERS 10–181
Pursuant to Article 17:
‘‘The carrier is liable for damage sustained in the case of death or bodily injury of a
passenger upon condition only that the accident which caused the death or injury took
place on board the aircraft or in the course of any of the operations of embarking or
disembarking.’’
Bodily injury. In King v Bristows Helicopters Ltd,531 two conjoined appeals 10–179
were heard where in both cases the claimant had suffered purely psychiatric
injuries apart from that common element the facts of the two cases were starkly
different. Mr. King was a passenger in a helicopter which had just taken off from
a production platform in the North Sea. In poor weather the aircraft developed
problems, it landed heavily on the platform engulfed in smoke. There was panic
among the passengers and although Mr. King was not physically injured he
developed moderate post traumatic stress disorder. In the conjoined appeal a
fifteen year old girl fell asleep on a flight and awoke to discover the man in the
seat next to her caressing her leg from the knee to the hip, she became distressed
and subsequently developed a depressive reaction. The House of Lords held that
these purely psychiatric injuries did not constituted bodily injuries for the
purposes of art.17 of the Warsaw Convention and to hold otherwise would be
inconsistent with a decision of the United States Supreme Court in Eastern
Airlines Inc v Floyd.532
Accident. The word ‘‘accident’’ in the present context means an unexpected 10–180
or unusual event or happening that is external to the passenger; it does not
include a passenger’s own internal reaction to the usual, normal and expected
operation of the aircraft.533 In Re Deep Vein Thrombosis and Air Travel Group
Litigation,534 a culpable failure to warn a passenger of the risk of deep vein
thrombosis (DVT), or to provide less cramped seating to minimise the risk of
developing DVT, did not amount to an ‘‘accident’’535 for the purposes of art.17.
An indecent assault by another passenger does constitute an accident.536
Fatal accident claims. Where an aircraft passenger dies as a result of an 10–181

accident the provisions of the Fatal Accidents Act 1976 (as amended) apply
pursuant to s.3 of the Carriage by Air Act 1961 (as amended) and the damages
would be assessed in accordance with that Act.537
531
[2002] 2 A.C. 628.
532
(1991) 499 US 530 (during flight the plane developed engine failure and the passengers were
informed that the ‘‘plane would be ditched’’ the engine was restarted and the plane landed safely,
some of the passengers suffered from emotional injury, which did not qualify as a bodily injury under
art.17 of the Warsaw Convention.
533
Air France v Saks 470 US 392.
534
[2005] 3 W.L.R. 1320, HL. See also Tompkins, ‘‘Deep vein thrombosis (DVT) and air carrier legal
liability: the myth and the law’’ A. & S.L. 2001 (26) 231; Meyer, ‘‘Deep vein thrombosis: blood flow
v profit flow’’ A. & S.L. 2001 (26) 225; Gates, ‘‘Airline liability for DVT enters appellate arena;
SARS poses no problem’’ (2003) I.F.L. Rev. 22 (7) 6; Panesar, ‘‘Air carriers’ liability for deep vein
thrombosis’’ J.P.I. Law 2004, 3, 192.
535
See further as to ‘‘accident’’ Ch.1, paras 1–08 to 1–10, above.
536
Morris v KLM Royal Dutch Airlines [2002] Q.B. 100.
537
See Ch.16.
[771]
10–182 Limitation of liability. Under the Montreal Convention the air carrier cannot
exclude or limit its liability in respect of claims for damages not exceeding
100,000 Special Drawing Rights538 for each passenger.539 To the extent that
claims exceed 100,000 Special Drawing Rights for each passenger, the carrier is
not liable beyond that extent if it proves that: (a) such damage was not due to
negligence or other wrongful act or omission of the carrier its servants or agents;
or (b) such damage was due solely to negligence or a wrongful act or omission
of a third party.540 The time limit for bringing claims is two years calculated from
the date of arrival at the destination or the date on which the aircraft ought to
have arrived or from the date on which the carriage stopped.541
10–183 Baggage claims. The carrier is liable for destruction of or loss or damage to
checked baggage upon condition only that the event which caused the destruc-
tion, loss or damage took place on board the aircraft or whilst the baggage was
in the charge of the carrier but it is not liable to the extent that the damage etc
resulted from inherent defect in the quality of the baggage542 Unless the
passenger has made a special declaration as to the baggage and paid a
supplementary sum, as necessary, the liability of the carrier in relation to
destruction of or damage or loss to baggage is 1,000 Special Drawing Rights per
passenger.543
10–184 In Sidhu v British Airways544 the House of Lords considered whether the
limitation against common law claims arose only in respect of the specific perils
mentioned in art.17 of the Warsaw Convention or whether it was general, in the
sense that only those perils mentioned in the Convention could be the subject of
claim, and any such claim had to be brought under the Convention’s terms. It was
decided, using a purposive approach to construction, that the latter was the
case:
‘‘ . . . the purpose is to ensure that, in all questions relating to the carrier’s liability, it
is the provisions of the Convention which apply and that the passenger does not have
access to any other remedies, whether under the common law or otherwise, which may
be available within the particular country where he chooses to raise his action’’.545
538
A unit of account as defined by the International Monetary Fund.
539
The Montreal Convention art.21(1).
540
541
The Montreal Convention art.35.
542
543
The Montreal Convention art.22.2.
544
[1997] A.C. 430. The claimant and others had been passengers on an international flight between
London and Malaysia. Their aircraft landed in Kuwait to refuel several hours after Iraqi forces
invaded and they were captured and detained in Baghdad. They sought damages for physical and
psychological injury on the basis of alleged negligence in landing after the start of hostilities. The HL
heard at the same time an appeal in Abnett v British Airways Plc originally reported at 1995 S.C.L.R.
654, Ct. Sess. OH which raised similar issues. See also Martin, ‘‘Airline legal liability—some
developments?’’ [1995] T.L.J. 3.
545
per Lord Hope at 41.
[772]
CARRIERS 10–186
(F) Hovercraft
Generally. A hovercraft546 is defined in s.4(1) of the Hovercraft Act 1968547 10–185

as ‘‘a vehicle which is designed to be supported when in motion wholly or partly
by air expelled from the vehicle to form a cushion of which the boundaries
include the ground, water or other surface beneath the vehicle’’. The Act grants
wide powers for regulating hovercraft, particularly in relation to registration and
safety; liability for damage caused by or involving their use548; investigation of
accidents; the regulation of noise and vibration; the application of enactments
relating to other forms of transport and of general maritime law; and the
application of certain enactments limiting liability for damage. Certain enact-
ments relating to Admiralty jurisdiction are applied to hovercraft by s.2, which
further enables provision to be made by Order in Council for modifying or
excluding the application of those enactments in prescribed cases.
Liability to passengers. In relation to damage to passengers and their 10–186

baggage carried by hovercraft, the Carriage by Air Act 1961 and the Carriage by
Air (Supplementary Provisions) Act 1962 apply with modifications by virtue of
the Hovercraft (Civil Liability) Order 1986549 as amended. Detailed considera-
tion of these provisions is beyond the scope of this text. These statutory
provisions incorporate into United Kingdom law the rules relating to inter-
national carriage by air550 and apply the rules to hovercraft. In summary, the
carrier is liable for damage sustained in the event of the death or wounding of a
passenger or any other bodily injury551 suffered by a passenger if the accident
took place on board the hovercraft or in the course of any of the operations of
embarking or disembarking.552 The carrier is liable for damage sustained in the
event of the destruction or loss of or damage to any baggage other than that
which the passenger takes charge of himself, if the occurrence which caused the
damage took place during the carriage by the hovercraft.553 Where there is delay
in the carriage of passengers or baggage the carrier is liable.554 The carrier is not
liable if he proves that he, his servants or agents, have taken all reasonable
measures to avoid the damage or that it was impossible for him or them to take
such measures.555 If the damage was caused by the negligence of the injured
person then the carrier may be exonerated wholly or partly from liability.556 In
relation to the carriage of persons, the carrier’s liability is limited to £80,000 per
546
For an historical introduction to this topic, see Charlesworth & Percy on Negligence (8th ed.,
1990), Ch.9, para.9–182 et seq.
547
Which came into force on August 26, 1968, with the exception of s.4(3), which came into
operation on July 12, 1972, by virtue of the Hovercraft Act 1968 (Commencement) Order 1972 (SI
1972/979).
548
See Hovercraft Civil Liability Order 1986 (SI 1986/1305).
549
SI 1986/1305.
550
See paras 10–177 to 10–184, above.
551
‘‘Bodily injury’’ will not usually include psychiatric symptoms: see King v Bristow Helicopters
Ltd, M v KLM Royal Dutch Airlines [2002] 2 A.C. 628, n.531, above.
552
art.17 of the Convention.
553
art.18(1) of the Convention.
554
555
556
[773]
person.557 In relation to baggage, liability is limited to £246 per passenger unless

the passenger or consignor has made a special declaration of interest in the
property.558 The carrier cannot impose, by contract or otherwise, a lower limit on
his liability.559 The limits on the carrier’s liability do not apply if the damage
resulted from an act or omission of the carrier done with intent to cause damage
or recklessly and with knowledge that damage would probably result.560 Any
action relating to personal injury or damage to baggage sustained during carriage
by a hovercraft should be brought within two years from the date of arrival at the
destination or the date upon which the hovercraft ought to have arrived.
3. HIGHWAY USERS AND COLLISIONS
10–187 The duty of care generally. As Lord du Parcq pointed out, ‘‘an underlying
principle of the law of the highway is that all those lawfully using the
highway . . . must show mutual respect and forbearance’’.561 Hence, the duty of
a person who either drives or rides a vehicle on the highway562 is to use
reasonable care to avoid causing damage to persons, vehicles or property of any
kind on or adjoining the highway.563 Reasonable care means the care which an
ordinarily skilful driver or rider would have exercised, under all the circum-
stances, and connotes an ‘‘avoidance of excessive speed, keeping a good look-
out, observing traffic rules and signals and so on’’.564 It includes keeping
reasonable control over passengers.565 The steps that need to be taken in order to
perform the duty have been considered in many situations of commonplace
occurrence.566 Since the duty is to drive with reasonable care and prudence a
motorist will seldom be held liable for the outcome of a split second decision
where a number of courses of action are open to him and each has potential
disadvantages. Just because an accident could have been avoided by the taking
557
558
559
560
ibid. Art.25. For the interpretation of this clause, see Gurtner v Beaton [1993] 2 Lloyd’s Rep. 369
and Nugent v Michael Goss Aviation Ltd [2000] P.I.Q.R. P175, CA.
561
Searle v Wallbank [1947] A.C. 341 at 361.
562
per Potter L.J. in Clarke v Kato [1997] 1 W.L.R. 208, CA at 211: ‘‘The existence of a highway
depends upon the establishment of a public right of passage whether on foot, on horseback or by
vehicle, over the way concerned as a result of dedication or long usage.’’
563
As regards a learner driver, see paras 10–258 to 10–261, below.
564
Bourhill v Young [1943] A.C. 92 at 104, per Lord Macmillan.
565
Minister Van Polisie en Binnelandse Sake v Van Aswegan, 1974 (2) S.A. 101 (police officers were
held to be negligent in not keeping a prisoner under proper control inside their police car so that, with
the object of gaining an opportunity to escape, the latter was able to grapple with the steering wheel,
turn it and cause the vehicle to crash).
566
In Foskett v Mistry [1984] R.T.R. 1, the CA applying the dictum of Lord Dunedin in Fardon v
Harcourt-Rivington (1932) 146 L.T. 391 at 392, has reiterated that authorities seldom ought to be
cited in simple running-down cases, where liability is dependent merely on whether or not the
defendant can be shown to have failed to take reasonable care in all circumstances.
[774]
HIGHWAY USERS AND COLLISIONS 10–191
of a particular measure does not necessarily mean that taking of the measure
which, in fact caused the accident was negligent. 567
To whom the duty is owed. Primarily, the person who either drives or rides 10–188
a vehicle on the highway owes a duty of care to all other road users, as well as
persons and their property on land adjacent to the highway. Likewise, a
passenger568 in a motorvehicle and a pedestrian569 each owes a duty of care to
other users of the highway.
A road user must not assume that others on the highway will themselves 10–189
behave with reasonable care, which common experience has shown to be a false
assumption. Lord Uthwatt observed: ‘‘a driver is not, of course, bound to
anticipate folly in all its forms, but he is not, in my opinion, entitled to put out
of consideration the teachings of experience as to the form these follies
commonly take’’.570
The duty of care is owed to ‘‘persons so placed that they may reasonably be 10–190
expected to be injured by the omission to take such care’’.571 It is a separate and
distinct duty, which is owed by one user of the highway to each other user,572 so
that, for example, an instructor driver and a learner driver owe duties to one
another, as well as to other persons likely to be affected by the latter’s driving.573
A driver can still owe a duty of care to a passenger notwithstanding that they are
jointly engaged in committing road traffic offences.574
Each decision turns on its facts. It is essential always to bear in mind, when 10–191
considering the following text, that each decision turns upon its own individual
facts575 and should be treated as a guide, rather than as a binding authority for a
rule of law.
567
Lambert v Clayton [2009] EWCA Civ 237 (no liability upon the defendant, who drove a pickup
towing a cattle trailer in a right turn from a country road into a lane about 100m from a blind summit,
for a collision with a motorcyclist who approached from behind the summit at very high speed : an
argument that he should have decided in a split second to abort his manoeuvre was rejected.
568
See para.10–262, below.
569
See paras 10–268 to 10–278, below.
570
L.P.T.B. v Upson [1949] A.C. 155 at 173.
571
Bourhill v Young [1943] A.C. 92 at 104, with Lord Macmillan adding, ‘‘the duty is owed to those
to whom injury may reasonably and probably be anticipated if the duty is not observed.’’
572
Randolph v Tuck [1962] 1 Q.B. 175, 185.
573
See para.10–258, below, and Nettleship v Weston [1971] 2 Q.B. 691. Where the owner of a car
hands the keys to a learner driver, the correct test of negligence is whether or not a reasonable man
in all the circumstances would have realised that there was a real risk of such learner driver driving
it. Setchell v Snowdon [1974] R.T.R. 389.
574
Jackson v Harrison (1978) 19 A.L.R. 129; Taylor v Leslie, 1998 Rep.L.R. 110, OH, Currie v
Clamp 2001 S.C.L.R. 504, OH (passenger not disqualified from suing for injuries sustained in an
accident by the criminal offence of being driven in a car taken without the owner’s consent). See, on
the general point of principle, Glofcheski, ‘‘Plaintiff’s illegality as a bar to recovery of personal injury
damages’’ (1999) 19 L.S., 6. See Ch.4, paras 2–248 to 2–253, above.
575
Scott v Warren [1974] R.T.R. 104 (a motorist, who was driving in a line of moving traffic, was
following a van, which made an emergency stop, and despite braking hard he was unable to stop in
time and crashed into the van’s rear): Banfield v Scott and Ranzetta (1984) 134 New L.J. 550; Foskett
v Mistry [1984] R.T.R. 1.
[775]
10–192 The Highway Code. The Highway Code was originally established under
s.45 of the Road Traffic Act 1930. The current, fifteenth, edition of the Highway
Code was issued in 2007.576 Its effect is set out in s.38(7)577 of the Road Traffic
Act 1988 as follows:
‘‘A failure on the part of a person to observe a provision of the Highway Code shall not
of itself render a person liable to criminal proceedings of any kind, but any such failure
may in any proceedings (whether civil or criminal, and including proceedings for an
offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or sections 18
to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as
tending to establish or to negative any liability which is in question in those pro-
ceedings.’’
10–193 It follows that, usually, a failure to observe the provisions of the Code is prima
facie evidence of negligence but the Code should not be treated as a statutory
instrument and a breach of the Code does not necessarily indicate negligence:
‘‘it contains many propositions of goods sense, which may be taken into account in
considering whether reasonable care had been taken, but it would be a mistake to
elevate them into propositions of Law.’’578
For instance, it is unlikely that it would be regarded as evidence of negligence for

a pedestrian on a footpath to walk next to the kerb with his back to the traffic
(para.1). Also there is some reluctance to make findings of contributory
negligence against pedestrians who walk on the ‘‘wrong’’ side of the road,
thereby not facing oncoming traffic,579 even when the only pavement was to the
other side of the road580; or where the pedestrian was not wearing or carrying
anything white, light-coloured or reflective.581
10–194 Compliance with the provisions of the Highway Code does not necessarily
absolve a person from being guilty of negligence.582 For example, although hand
576
The resolutions of Parliament are required for any proposed revision: Road Traffic Act 1988
s.38(3).
577
In order to rely on s.38(7) in a claim for damages, it is unnecessary to establish that the latest
edition of the Code was available to the party who is alleged to have been in breach of its provisions,
or that he had actually read it: O’Connell v Jackson [1972] 1 Q.B. 270.
578
Qualcast (Wolverhampton) Ltd v Haynes [1959] A.C. 743 at 759 per Lord Denning. Regard must
be paid to the circumstances in which the Code is invoked: Rosser v Lindsay, The Times, February
25, 1999, CA (the requirements of the Code as to the frequent use of a vehicle’s mirrors could not
be considered mandatory for a driver manoeuvring on a construction site).
579
para.2 of the Code. See Parkinson v Parkinson (Note) [1973] R.T.R. 193, CA; but contrast the
Australian case of Evers v Bennett (1983) 31 S.A.S.R. 228 (pedestrian 30 per cent to blame where
he was struck by the motorist from behind while walking with his back to approaching traffic in bright
sunlight).
580
Kerley v Downes [1973] R.T.R. 189, CA.
581
para.3 of the Code. See Powell v Phillips [1972] 3 All E.R. 864; but cf. Jarvis v Fuller [1974]
R.T.R. 160 (collision with a pedal cyclist wearing dark clothing whose bicycle had no red light to the
rear).
582
White v Broadbent and B.R.S. [1958] Crim.L.R. 129. See also cases on traffic lights incidents, e.g.
Godsmark v Knight Bros (Brighton), The Times, May 12, 1960 (approved and followed by the CA in
Radburn v Kemp) [1971] 1 W.L.R. 1502 but cf. Sudds v Hanscombe [1971] R.T.R. 212; Tingle Jacobs
& Co v Kennedy [1964] 1 W.L.R. 638n.
[776]
signals are seldom used nowadays, it can still be negligent not to give one when
either an unusual or a hazardous manoeuvre is to be undertaken.583
Statutory regulations under Road Traffic Act 1988, etc. In addition to the 10–195
Highway Code, there are various regulations, made under the earlier Road Traffic
Acts, and the consolidating Act of 1988 s.41, regulating the use and construction
of motorvehicles on roads.584 Failure to comply with these regulations is a matter
to be taken into account in deciding whether there is negligence.
Many of these regulations impose a public duty upon road users and a breach 10–196
will give rise to a criminal sanction, although not civil liability. Conversely, even
where there has been full compliance with the Highway Code, and any relevant
statutory provision, a finding of negligence may be made.
Rule of the road. The rule of the road585 is that when two vehicles are 10–197
approaching each other from opposite directions, each must travel ‘‘on the left or
near side of the road for the purpose of allowing’’ the other to pass.586 Failure to
observe this rule is prima facie evidence of negligence.587 The Highway Code
incorporates the rule of the road as to vehicles in para.160, and as to riders of
horses in para.53. Even if a collision occurs on a driver’s wrong side of the road
it is not conclusive evidence of negligence against him. There may have been
circumstances such as to make it reasonable for him to depart from the ordinary
rule. But it does throw upon him the burden of proving what those circumstances
were.588
It has been said that ‘‘the rule as to the proper side of the road does not apply 10–198
with respect to foot passengers; and as regards the foot passengers the carriages
may go on whichever side of the road they please’’.589 This misleading. The rule
is, no doubt, primarily a rule regulating the course of vehicles, passing each other,
but it leads to the result that all persons, including pedestrians, may reasonably
expect that vehicles will be driving on or next to their near side of the road in
anticipation of meeting approaching traffic, whose drivers will regulate their
583
Goke v Willett [1973] R.T.R. 422 (a misleading signal, using the right trafficator’s flashing lights,
was given by the driver, who not only pulled out to overtake traffic ahead but suddenly braked hard
and attempted to execute a right turn, whereupon he was run into from behind by the following
motorist, who mistakenly had believed that the intended manoeuvre being signalled was one of an
overtaking movement only. The misleading signaller driver was held one-third to blame for the
accident). See further, paras 10–233 to 10–234, below.
584
585
For the effect of white lines, see para.10–203, below.
586
Highway Act 1835 s.78, which imposes a penalty for breach of the section. The Act adopts the
old common law rule of the road. There are no special precautions over and above the existence of
reasonable care, which the owners of a large vehicle, using a narrow lane, necessarily ought to take:
Thrower v Thames Valley and Aldershot Bus Co Ltd [1978] R.T.R. 271.
587
Chaplin v Hawes (1828) 3 C. & P. 554.
588
Wayde v Lady Carr (1823) 2 Dowl. & Ry 255; Wallace v Bergius, 1915 S.C. 205 (vehicles A and
B approach each other from opposite directions on the same side of the road, A on its proper side and
B on its wrong side, and when collision is imminent, A swerves to its wrong side, B at the same time
swerving to its proper side causing a collision—B is liable to A).
589
Cotterill v Starkey (1839) 8 C. & P. 691; see also Lloyd v Ogleby (1859) 5 C.B.(N.S.) 667.
[777]
actions accordingly. A pedestrian must keep a careful lookout, both before and
during the crossing of a road,590 but if a vehicle on its wrong side of the road
collides with a pedestrian, the driver must explain how his position on the road
is consistent with the exercise of reasonable care on his part.591 When traffic is
held up, no attempt should be made to gain a forward position by encroaching on
the offside of the road.592
10–199 Motorways. These roads are designed to allow safe travel at high speed.
Special rules apply to motorway travel and the Highway Code has a section
devoted to motorways. Pedestrians, holders of provisional car or motorcycle
driving licences, motorcycles under 50cc, cyclists and horse riders are prohibited
from using motorways.593 Agricultural vehicles and most invalid carriages are
also prohibited.594 Motorways have special signals situated in the central
reservation and sometimes on overhead gantries.595 These are used to warn
drivers of the presence of hazards on the road ahead and to impose temporary
speed restrictions. When red flashing lights are shown, drivers must not pass the
signal.596 The Highway Code advises that when joining a motorway drivers
should: give priority to traffic already on the motorway; adjust their speed to fit
safely into the traffic flow in the left-hand lane; not cross solid white lines
separating lanes; remain on the slip road if it continues as an extra lane; and
remain in the left-hand lane long enough to adjust to the speed of the traffic
before overtaking.597 The speed limit on motorways is 70 mph for cars, buses and
coaches not exceeding 12 metres in length and goods vehicles not exceeding 7.5
tonnes maximum laden weight. For cars towing caravans or trailers, goods
vehicles exceeding 7.5 tonnes maximum laden weight and lighter goods vehicles
towing a trailer the speed limit is 60 mph.598 Drivers on motorways must not
reverse, cross the central reservation or drive against the flow of traffic.599 Traffic
must not stop on the carriageway, hard shoulder, central reservation slip road or
verge except in emergencies or under the direction of a police officer or a
590
See Highway Code, ‘‘The Green Cross Code’’ at para.7. Hurt v Murphy [1971] R.T.R. 186 (the
deceased was held one-fifth to blame for not continuing to look to her left while crossing over the
road).
591
See McKechnie v Couper (1887) 14 R. 345; Clerk v Petrie (1879) 6 R. 1076; Smith v Browne
(1891) 28 L.R.Ir. 1; McKnight v General Motor Carrying Co, 1936 S.C. 17.
592
Highway Code para.151, advises drivers in slow moving traffic: to reduce the distance between
their own vehicle and the vehicle in front to maintain traffic flow; never to get so close to the vehicle
in front so as not to be able to stop safely; to leave enough space to be able to manoeuvre if the vehicle
in front breaks down; not to change lanes to the left to overtake; and to allow access into and from
side roads.
593
Highways Act 1980 ss.16 and 17 and Sch.4, Motorways Traffic (England & Wales) Regulations
1982 (SI 1982/1163) and the Motorways Traffic (England & Wales) (Amendment) Regulations 1992
(SI 1992/1364).
594
Motorways Traffic (England & Wales) Regulations 1982 (SI 1982/1163) reg.4.
595
These are illustrated in the Highway Code.
596
Road Traffic Act 1988 s.36 and Traffic Signs Regulations and General Directions 1994 (SI
1994/1519).
597
para.233.
598
Motorways Traffic (Speed Limit) Regulations 1974 (SI 1974/502).
599
Motorways Traffic (England & Wales) Regulations 1982, (SI 1982/1163) regs 6 and 7.
[778]
signal.600 Driving on the hard shoulder is prohibited.601 Traffic must not overtake
on the hard shoulder.602
Vehicles towing a trailer, goods vehicles with a maximum laden weight over 10–200
7.5 tonnes and passenger vehicles with a maximum laden weight of over 7.5
tonnes constructed or adapted to carry more than eight passengers must not use
the right-hand lane where there are three or more lanes.603
Paragraph 268 of the Highway Code advises drivers not to overtake on the left. 10–201
In congested conditions, however, where adjacent lanes of traffic are moving at
similar speeds, it is permissible to keep up with traffic in the same lane even if
that means passing traffic in a lane to the right, which is moving more slowly. In
such conditions traffic should not weave in and out of lanes to overtake.
When leaving the motorway motorists should: watch for signs indicating the 10–202
position of their exit; move into the left-hand lane well before the exit; and signal
left in good time.604 On slip roads and link roads between motorways drivers
should check their speedometers.605
Traffic signs and lines or marks on a road.606 White or yellow lines or 10–203
marks607 have been made specifically a ‘‘traffic sign,’’ by s.64(1) of the Road
Traffic Regulation Act 1984.608 A double white line along the middle of the road
is of particular significance, because if the nearer line is a continuous one, the
vehicle must keep to its own side of it and is prohibited from crossing or
straddling it. On the other hand, if the nearer line is a broken one, a vehicle may
cross, in certain circumstances, although the mere presence of a broken line does
not mean that it is safe for a vehicle to overtake. A failure to comply with the
indication given by a ‘‘traffic sign’’ or with ‘‘traffic directions’’, is an offence
under the 1988 Act.609
Overtaking and being overtaken. Overtaking must be done on the right- 10–204
hand or offside of the vehicle overtaken, save when the driver in front has
signalled that he intends to turn right.610 A driver must not overtake where his
vehicle would have to cross or straddle double white lines with an unbroken line
600
Motorways Traffic (England & Wales) Regulations 1982, (SI 1982/1163) regs 7(1), 9 and 10.
601
Motorways Traffic (England & Wales) Regulations 1982, (SI 1982/1163) reg.5, save when an
appropriate sign is displayed indicating that the hard shoulder is to be used as the nearside lane
because of road works or other obstruction.
602
Motorways Traffic (England & Wales) Regulations 1982, (SI 1982/1163) regs 5 and 9.
603
Motorways Traffic (England & Wales) Regulations 1982, (SI 1982/1163) reg.12.
604
Highway Code para.272.
605
606
For the liability of highway authorities regarding the provision of road signs see para.10–10,
above.
607
See Highway Code paras 106–111.
608
Which has replaced s.54 of the Road Traffic Regulation Act 1967 that had overruled Evans v
Cross [1938] 1 K.B. 694.
609
ss.35 and 36.
610
Highway code para.163. When traffic is moving slowly in queues, motorists should keep to their
lane and may overtake traffic on their right-hand side in a queue which is moving more slowly.
[779]
nearest to him611; in the zig-zag area of a pedestrian crossing and after a ‘‘no
overtaking’’ sign. A driver should not overtake approaching or at a corner or
bend; a road junction612; a hump bridge, or the brow of a hill, or when he might
come into conflict with other road users.613 The driver or rider of the overtaking
vehicle, before attempting to overtake, should see that it is safe to do so, and
should be especially careful at night or in poor visibility, when it is more difficult
to judge speed and distance.614
10–205 There will be occasions when a hand signal, in substitution for or in addition
to a flashing indicator’s signal, may become essential. For instance, it will be
important to distinguish between the intention of overtaking, then either
maintaining a constant speed or increasing it, and the intention of reducing speed,
probably rapidly, then changing direction by turning to the right.615 Failure so to
give a clear indication, in such circumstances, could well confuse and mislead the
drivers of following vehicles and cause a collision.616
10–206 In all cases it is the duty of the person who is overtaking to allow an adequate
margin of safety between his vehicle and the vehicle overtaken,617 and to
overtake only when he can do so without causing danger to other traffic.618 A
driver, who overtook a stationary bus at some traffic lights just as they were
changing to green, and struck the claimant, who was still in the process of
crossing the road in front of the bus, was held liable. It was negligent to overtake
the bus where he did, and in the circumstances, he should have waited until it was
half-way across the crossroad before attempting to pass it.619 Drivers should not
assume that they can simply follow a vehicle in front which is overtaking because
611
It is permissible to cross an unbroken white line if it is necessary to pass a stationary vehicle or
to overtake a pedal cycle, horse, or road maintenance vehicle if they are travelling at 10 mph or less:
Road Traffic Act s.36 and The Traffic Signs and General Directions 1994 (SI 1994/1519).
612
Joseph Eva Ltd v Reeves [1938] 2 K.B. 393; Goke v Willett [1973] R.T.R. 422; Joliffe v Hay, 1991
S.L.T. 151. Different considerations may apply when approaching a side road: see Tocci v Hankard
(No.2) (1966) 110 S.J. 835, but also the decisions referred to in n.621, below.
613
Highway Code para.167. Examples of potential conflict with other road users include: on the
approach to a junction on either side of the road; where the road narrows; when approaching a school
crossing patrol; between the kerb and a bus or tram when it is at a stop; where traffic is queuing at
junctions or road works; at a level crossing; and when a vehicle is indicating right.
614
Highway Code paras 162 and 163. A driver is entitled to assume he can overtake without danger
if what he is overtaking gives not the slightest sign of any unexpected manoeuvre: Clark v Wakelin
(1965) 109 S.J. 295.
615
Joliffe v Hay, 1991 S.L.T. 151 (the leading vehicle’s driver had been approaching a junction with
the intention of turning right and had commenced to do so, whilst the following vehicle’s driver had
moved out to overtake and had collided with the rear of the leading vehicle).
616
Goke v Willett [1973] R.T.R. 422 (one-third responsibility on behalf of the driver giving the
misleading signal). See Joliffe v Hay, 1991 S.L.T. 151 (30 per cent blame on the driver of the leading
vehicle and 70 per cent blame on the following, overtaking vehicle’s driver).
617
Henry v Santam Insurance Co Ltd, 1971 (1) S.A. 468 (besides allowing for the normal clearance
sufficient between the two vehicles when a two-wheeled machine is being overtaken due allowance
must be given for some lateral movement on the part of the cycle rider, especially when the road’s
surface is rough).
618
Leaver v Pontypridd Urban District Council (1911) 76 J.P. 31; Umphray v Ganson Bros, 1917
S.C. 371.
619
Shepherd v H. West & Son Ltd (1962) 106 S.J. 391 ; [1964] A.C. 326 (damages only).
[780]
there may only be enough room for one vehicle to overtake.620 A driver travelling
in the outer lane on a main road and overtaking a queue of traffic which is
stationary or moving very slowly or irregularly, must be prepared for the
possibility that the inner lane’s vehicles will give way to vehicles which are
waiting to emerge from a side road and desiring to pass through a gap in the main
road’s traffic.621 Having finished overtaking, a driver should not cut in, that is,
pull sharply in front of the vehicle which has just been overtaken.622 Animals
should be passed slowly, be given plenty of room, and, if necessary, the driver
should bring his vehicle to a stop.623
A driver should use reasonable care while being overtaken, and must not 10–207
swerve outwards, so as to get in the way of the vehicle overtaking him.624 A
driver should not accelerate while being overtaken,625 but if he does, the driver
of the overtaking vehicle should fall behind. The driver being overtaken should
not impede an overtaking manoeuvre, but if a dangerous situation is created by
the actions of the overtaking vehicle, the driver being overtaken is not negligent
if he continues to drive at a proper speed upon a proper course.626
Drivers must show consideration for the safety of pedestrians. If a public 10–208
conveyance is either stationary or about to stop, the driver of an overtaking
vehicle should anticipate that passengers are likely to be alighting and keep a
good look out for them.627
Speed. It is the duty of the driver or rider of a vehicle to travel at a speed628 10–209
which is reasonable under the circumstances. In determining what is reasonable,
the nature, condition, and use of the road in question, and the amount of traffic
which is actually on it at the time, or which might reasonably be expected to be
on it, are all important matters to be taken into consideration. The Highway Code
provides:
‘‘125—The speed limit is the absolute maximum and does not mean it is safe to drive
at that speed irrespective of conditions. Driving at speeds too fast for the road and traffic
conditions can be dangerous. You should always reduce your speed when:
the road layout or condition presents hazards, such as bends;
sharing the road with pedestrians and cyclists, particularly children, and motorcy-
clists;
620
621
The ‘‘overtaker’’ was wholly to blame in Clarke v Winchurch [1969] 1 W.L.R. 69, explained by
the CA in Worsfold v Howe [1980] 1 W.L.R. 1175, and to the extent of 80 per cent in Powell v Moody
(1966) 110 S.J. 215, CA; two-thirds in Garston Warehousing Co Ltd v O.F. Smart (Liverpool) Ltd
[1973] R.T.R. 377; and one-half in Leeson v Bevis & Tolchard Ltd [1972] R.T.R. 373.
622
623
See Downing v Birmingham & Midland Trams (1888) 5 T.L.R. 40.
624
See Milliken v Glasgow Corp, 1918 S.C. 857.
625
626
Smith v Cribben [1994] P.I.Q.R. P218, CA.
627
Christie v Glasgow Corp, 1927 S.C. 273; Gambino v Di Leo (1971) 7 D.L.R. (3d) 167 (children
who emerged suddenly from behind an ice cream truck).
628
For restrictions, generally, see the Road Traffic Regulation Act 1984 ss.81–88.
[781]
weather conditions629 make it safer to do so;

driving at night as it is harder to see other road users.’’
If the driver of a vehicle sees a pedestrian in time to avoid a collision but does
not slacken speed, because he thinks there will be no collision if the pedestrian
moves normally, and the pedestrian, owing to age or infirmity, does not do so and
a collision occurs, the driver will be liable.630
10–210 A motorist should drive at a speed such that he can stop well within the
distance that he can see to be safe.631 So where a motorist approached the brow
of a hill on a single track road at such a speed that she could not stop to avoid
a stationary vehicle on the other side of the brow of the hill liability was
established even though the defendant was only travelling at between 15 to 20
mph.632 The maximum permitted speed of certain motor vehicles is regulated by
statute633 and, if that speed is exceeded, it is most probable that a case of
negligence will be established against the driver.634 Again, it is an offence to
drive a vehicle at a speed exceeding 30 mph on a road in a built-up area, that is,
a road where there are street lamps not more than 200 yards apart, or a road to
which the speed limit has been applied by order of the Minister of Transport.635
Obviously, it is evidence of negligence to exceed the speed limit in a built-up
area, because other traffic and persons in the area may be assumed to regulate
their conduct in the expectation that the law will be obeyed.636 On the other hand,
a driver may not necessarily be negligent if he fails to reduce his speed below 30
mph in a built-up area, or sound his horn along a residential street, although he
is aware of the slight possibility that a child might suddenly dart out into the
roadway from behind a parked car.637
10–211 Police. A police oficer, like any other driver, owes a duty to drive with due
care and attention and without exposing members of the public to unnecessary
danger. So where a claimant was injured by a police motorcyclist, who was riding
in pursuance of his duties at 60 mph on a road where the maximum permitted
629
Failing to do so usually will result in the driver being found liable, either wholly or in part: Harvey
v Road Haulage Executive [1952] 1 K.B. 120; Rouse v Squires [1973] Q.B. 889.
630
Daly v Liverpool Corp [1939] 2 All E.R. 142. See generally, Cottrell, ‘‘Liability favours the
pedestrian’’ 2004 P.I.L.J. (Oct) 10.
631
632
Dawson v Angela [2007] EWHC 3395 (Q.B.).
633
Road Traffic Regulation Act 1984 s.86.
634
Kingman v Seagar [1938] 1 K.B. 397; Bracegirdle v Oxley [1947] 1 All E.R. 126. See also the
provisions of the Civil Evidence Act 1968 s.11, which places the burden on the defendant of
disproving negligence where he has been convicted of an offence which is relevant to the issue.
635
By the Road Traffic Regulation Act 1984 ss.81 and 82, certain roads, although provided with street
lamps, may be and have been freed from the speed limit by Order. In such cases signs to that effect
are fixed to the lamp-posts.
636
See Grealis v Opuni, The Times, February 7, 2003, CA (driver of car travelling at 38mph in 30mph
limit 20 per cent responsible for collision with moped driver who turned right, across his path). In
Puffett v Hayfield [2005] EWCA Civ 1760 it was said that, as a matter of law, a finding that excessive
speed at which a car had been driven was causative of an accident giving rise to personal injury could
be made without the court actually specifying what was a safe speed.
637
Moore v Poyner [1975] R.T.R. 127, applied in Saleem v Drake [1993] P.I.Q.R. P129, CA, but cf.
the situation in Armstrong v Cottrell [1993] P.I.Q.R. P109, CA.
[782]
speed was 40 mph liability was established.638 Where a police officer, in the
execution of his duty, must necessarily exceed the speed limit, he must exercise
a degree of care and skill proportionate to the speed and remember that the
ordinary road user in a built-up area will not expect a motor vehicle being driven
at a fast speed. It is desirable in such circumstances that particular care should be
given to audible or other warning of approach.639
Braking, slowing, coming to a stop. The driver of a vehicle following 10–212

another ought to allow a sufficient space between the vehicles, in which to deal
with the ordinary exigencies of traffic. It is evidence of negligence if a vehicle is
too close to the rear of a vehicle ahead and so fails to pull up in time, when the
other vehicle come to a sudden halt.640 On the other hand, to say that a bus-driver,
for example, must always preserve a gap in front of the bus, sufficient to enable
it to come to a halt, is a counsel of perfection which ignores traffic condi-
tions.641
The Highway Code suggests642 that a safe rule is not to get closer to the 10–213
vehicle ahead than the overall stopping distance (as set out in the table of such
distances); on roads carrying fast traffic a two-second gap should be left. On wet
or icy roads the gap should be at least doubled. If the following driver allows
proper space and the leading vehicle suddenly pulls up so that a collision cannot
be avoided, the former may not be liable for the damage.643
The question of the leading vehicle driver’s liability will depend on whether 10–214
the sudden stop was owing to that driver’s negligence or to some other cause.644
Where the defendant had applied her brakes violently in order to avoid hitting a
pheasant running across the road in front of her car, so that the motorist following
638
Gaynor v Allen [1959] 2 Q.B. 403. See further Marshall v Osmond [1983] Q.B. 1034 (police car,
in hot pursuit of some youths, who had taken a motorcar without the owner’s authority, injured one
of them); McLeod v Receiver of Metropolitan Police [1971] Crim.L.R. 364 (a police car lost control
at 70 mph, travelling in answer to an emergency call, and collided with another car); Gilfillan v
Barbour 2003 S.L.T. 1127, OH (Gaynor doubted where a police officer responding to a call was
approaching a junction on a damp surface at 60 mph and collided with a car whose driver, having
heard the siren of the police car, nonetheless attempted to turn right).
639
Dyer v Bannell (1965) 109 S.J. 216, applied in Cox v Dixon (1984) 134 New L.J. 236 and 451 (an
unmarked police car was travelling at about 60 mph in a built-up area along a dual carriageway,
which was subject to a 30 mph speed limit, in hot pursuit of a motorcyclist. Suddenly a motorist
emerged on to the dual carriageway from a side turning and collided with the police car. Liability was
apportioned, two-thirds to the police car driver, one-third to the motorist).
640
Thompson v Spedding [1973] R.T.R. 312 (each driver held equally to blame).
641
Wooller v London Transport Board [1976] R.T.R. 206, CA; applied in Parnell v Metropolitan
Police District Receiver [1976] R.T.R. 201.
642
643
Brown and Lynn v Western S.M.T. Co, 1945 S.C. 31 at 36, per Lord Justice Clerk Cooper: ‘‘The
following driver is, in my view, bound, so far as reasonably possible, to take up a position, and to
drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably
to be anticipated’’; Scott v Warren [1974] R.T.R. 104.
644
See Smith v Harris [1939] 3 All E.R. 960; Sharp v Avery [1938] 4 All E.R. 85 (leader of two
motorcycles held liable for leading into a position of danger); Goke v Willett [1973] R.T.R. 422 (one-
third responsibility held against the driver for giving a misleading signal to the traffic behind
him).
[783]
her was unable to avoid a collision, the defendant was held liable.645 Where a
motorcyclist ran into the rear of a van which had braked suddenly, the view was
expressed that, in such circumstances, the burden of proof lay on the van driver
to explain why such braking was required.646 On the other hand, where the
leading vehicle had come to a gradual halt, as a result of a blockage in the fuel
system, and was run into from behind, it was held that, because such a
breakdown was a foreseeable emergency, the following vehicle’s driver was
negligent in failing to anticipate that it might have to slow down or stop.647 Even
so, a driver, who intends to slow down, albeit suddenly, whilst driving along a
motorway, is under no duty to give any warning of his intention, because it is the
duty of those following behind to keep clear.648
10–215 Look out. It is the duty of the driver or rider of a vehicle to keep a good look
out. Indeed, a a failure to notice in time that the actions of another person have
created a potential danger is negligent.649 Attention must be paid to other traffic,
which is or may be expected to be on the road, whether in front, behind, or
alongside, especially at crossroads, junctions and bends.650 A look out must be
kept for traffic-light signals and traffic signs, including lines marked on the
highway. Disregard of traffic signals651 and failure to keep a proper look out are
both evidence of negligence. When there are pedestrians about, the driver or rider
must be ready in case they step from a street refuge or a footpath, or from behind
a vehicle or other obstruction and, also, be prepared for children, knowing that
they may be expected to run suddenly on to the road.652 The mere fact of a
motorist’s failure to see a pedestrian in an unlit street during the hours of
darkness, before a collision, does not necessarily mean that the defendant driver
was negligent.653 When passing a standing vehicle or other obstruction, which
prevents a clear view of oncoming traffic or pedestrians, a good look out should
be kept. It has been held that for a motorist to allow his wing mirror to strike a
pedestrian, who either was standing on the kerb or had his back to traffic or, even,
had gone an inch or two into the roadway, amounted to negligence and that the
645
Gussman v Gratton-Storey (1968) 112 S.J. 884. Contrast Welch v O’Leary [1998] 11 C.L. 432
(motorcyclist 100 per cent to blame where the driver of the car he was following and about to
overtake braked violently to avoid a collision with ducks); Sharp v M.O.D. [2007] EWCA Civ 1223
(seventh driver in military convoy colliding with the rear of the sixth vehicle—liability was not
established even though the drivers of the fifth and sixth vehicles had been negligent in driving too
close to vehicles ahead, because the effective cause of the accident was the claimant driving too close
to the sixth vehicle). See also Parkinson v Liverpool Corp [1950] 1 All E.R. 367, para.10–285, below
and Ritchie’s Car Hire v Bailey (1958) 108 L.J. 348, para.10–250, below.
646
Elizabeth v Motor Insurers’ Bureau [1981] R.T.R. 405.
647
Rowlands v Street, The Times, November 22, 1962.
648
Jungnickel v Laing (1966) 111 S.J. 19.
649
Foskett v Mistry [1984] R.T.R. 1, CA (motorist was driving at a reasonable speed in open parkland
when claimant, aged 16, ran down a slope and out into the road into collision with the vehicle. Had
the motorist seen the claimant he ought to have sounded his horn, in which event, on the balance of
probabilities, the claimant’s attention would have been alerted. Liability was apportioned the motorist
one-quarter and the claimant three-quarters). See also Rosser v Lindsay, The Times, February 25,
1999, CA, para.10–201, above (frequent use of mirrors not a mandatory rule on a building site).
650
Springett v Ball (1865) 4 F. & F. 472.
651
652
See Highway Code paras 204–209, and Foskett v Mistry [1984] R.T.R. 1, above.
653
Knight v Fellick [1977] R.T.R. 316, CA; see too Ahanonu v South East London & Kent Bus
Company Ltd [2008] EWCA Civ 274.
[784]
pedestrian was not guilty of contributory negligence.654 Negligence was not

established, however, where a bus driver saw a child running towards the bus on
the kerb side of bollards lining the pavement and the child fell under the bus as
it slowed down; the risk of injury was a remote one and not one which the driver
should have recognised and reacted to.655
In broad daylight, a collision with a stationary vehicle on the highway is prima 10–216
facie evidence of negligence. When a tractor came out of a field into a country
lane, which was a highway, and collided with a stationary car that was facing the
direction whence the tractor was coming, the tractor driver was liable.656 The
driver was caught in a bind:
‘‘Either there was room to pass or there was not. If there was room to pass, then the fact
that he damaged the plaintiff’s vehicle in passing was prima facie evidence of
negligence. If there was no room to pass, then he was negligent in attempting to do so
when there was no room.’’657
Mobile telephones and in-car technology. The Highway Code advises 10–217
motorists never to use a hand mobile phone or a microphone whilst driving.658
Even a hands free telephone is likely to be a distraction to a motorist. Many
vehicles now have route guidance and navigation systems and some have on
board personal computers. The Highway Code advises drivers not to operate,
adjust or view such equipment if it will cause a distraction.659
Reversing. A motorist, before either reversing or turning around on the 10–218

highway, should satisfy himself that it is safe to do so. The Highway Code
stresses the importance of checking to the rear before reversing is commenced;
being careful about the area that cannot be seen from the driver’s seat; obtaining
help if the view behind is obscured; and never reversing from a side into a main
road.660
When the driver of a bus was using his conductor, who was outside the vehicle, 10–219
walking backwards and keeping level with the rear of it, as his ‘‘eyes’’, he was
under a duty to make sure that those ‘‘eyes’’ were in a position to see what they
were supposed to see, namely any person who was attempting to cross the street
behind the back of the bus.661 The duty being to take reasonable care, it is
654
Chapman v Post Office [1982] R.T.R. 165, CA; also Ehrari v Curry [2007] EWCA Civ 120 (driver
30 per cent to blame for wing mirror collision between lorry and a 13 year old child who had stepped
into the road from behind a parked car and who was there to be seen for about 1 second before
impact).
655
Chadli v Brooks [2005] EWCA Civ 211.
656
Randall v Tarrant [1955] 1 All E.R. 600.
657
Randall v Tarrant [1955] 1 All E.R. 600 per Jenkins L.J. at 605.
658
659
660
Highway Code paras 200–203; see also McKnight v General Motor Carrying Co, 1936 S.C.
17.
661
Liddon v Stringer, The Times, April 15, 1967.
[785]
unrealistic to expect a bus driver to keep a constant eye on his nearside mirror
when there would be other potential dangers to consider.662
It is an offence for a person to cause or permit a motor vehicle to travel
backwards for a greater distance or time than may be requisite for the safety or
reasonable convenience of the occupants of that vehicle or of other traffic on the
road.663
10–220 Collisions in centre of road. When there is a collision between two motor
vehicles in the highway and there is no evidence pointing to one driver being any
more to blame than the other, the proper inference to be drawn is that they are
both to blame.664 So, when there had been a collision in the centre of crossroads
of equal status and, after the accident, the defendant said to a policeman, ‘‘I was
going along the road and we met in the middle’’, it was held there was a prima
facie case that both drivers were to blame. The claimant was an innocent
passenger and, as the defendant called no evidence, the claimant recovered in full
against the defendant.665 Each driver who was involved in an unwitnessed and
inexplicable head-on collision between two vehicles is likely to be held equally
to blame in negligence, even where there is some indication that one of them
might have been on his wrong side of the road.666
10–221 Further, it is by no means conclusive evidence of negligence that a vehicle

crossed over a dotted or single continuous white line in the middle of the road,
although different considerations would arise if it were a double white line with
a continuous line on the driver’s side.667 When a collision occurred, either
through the gross negligence of a motorist or the gross negligence of a
motorcyclist, but the judge, being unable to say which, dismissed both the claim
and the counterclaim, it was held that he should have made up his mind either
which one was to blame or have held both equally to blame.668 On the other hand,
it has been held, where there had been a head-on collision and each party had said
that he was on his correct side of the road and that it was the other who had
swerved, but the trial judge was unable to say that one account was more
probably correct that the other, then both the claim and the counterclaim should
be dismissed.669
662
Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274.
663
reg.106 of the Road Vehicles (Construction and Use) Regulations 1986 (SI 1986/1078), except for
a vehicle or road-roller engaged in work on the road.
664
Baker v Market Harborough Industrial Co-operative Soc. [1953] 1 W.L.R. 1472 (two motor-
vehicles, travelling in opposite directions, collided in the dark, in the centre of the road, both drivers
being killed. There was no evidence pointing to one driver being more blameworthy than the
other—held, both to blame); this decision was applied in Howard v Bemrose [1973] R.T.R. 32, CA
also Cooper v Hatton [200] R.T.R. 36, CA (no adequate evidential basis for preferring the account
of one driver over the other). See also Cooper v Floor Cleaning Machines Ltd, The Times, October
24, 2003, CA and the discussion at Ch.6, paras 6–88 to 6–91 above. That rule would seem to apply
even if it be perfectly feasible that neither party was negligent: Davison v Leggett (1969) 113 S.J. 409;
Nettleship v Weston [1971] 2 Q.B. 691.
665
France v Parkinson [1954] 1 W.L.R. 581.
666
Howard v Bemrose [1973] R.T.R. 32, CA.
667
668
Bray v Palmer [1953] 1 W.L.R. 1455.
669
Nesterczuk v Mortimore (1965) 39 A.L.R. 288.
[786]
Traffic lights. It is an offence under s.36 of the Road Traffic Act 1988,670 for 10–222
any driver or cyclist to disobey a traffic light signal.671 Likewise, it is an offence
under s.37 of the Act for any pedestrian to disobey a uniformed police
constable’s directions when he is engaged in regulating the vehicular traffic in the
road. Where a pedestrian starts to cross a road on a pedestrian crossing while the
lights are in his favour, he should be allowed free and uninterrupted passage over
the crossing, even though the lights change in the meantime. But, where there
was a central refuge in the road and the lights changed when the pedestrian
reached it, he was held to be at fault in stepping into the road without using due
care.672
The Highway Code instructs drivers to give way to pedestrians who are 10–223
already crossing a road into which they are turning.673 Where the claimant had
begun to walk across the road at a junction, when the traffic lights were in his
favour, and the defendant’s motor car emerged from a side road, turned to its
right and struck him as he had almost reached the central refuge, the defendant
was wholly liable, the claimant being under no duty to safeguard himself against
unforeseeably atrocious driving.674 Similarly, where pedestrians were injured,
whilst crossing a road on a crossing marked by studs but with the traffic lights at
green in favour of vehicular traffic, it was held that the degree of blameworthi-
ness to be attached to them was small, especially since the defendant’s vehicle
was approaching at a very fast speed.675
Crossing a road in disobedience to a traffic light will amount to negligence. A 10–224

driver, who is crossing a junction when lights are in his favour, is under no duty
to look out for traffic which is crossing in disobedience to the lights. Even so, if
he sees such traffic, then he must use reasonable care to avoid a collision.676 A
driver is under a duty not to enter a junction where traffic is already present prior
670
See Ryan v Smith [1967] 2 Q.B. 893 (where the motorcar was already partially over the stop line
when the lights were at green before it had to stop but it proceeded farther after the signals changed
to red).
671
Motorists must stop behind the white stop line unless a green light is showing in their favour.
Some junctions have advanced stop lines to allow cyclists to be positioned ahead of other road users.
Motorists must wait behind the first stop line and not encroach on the area marked for cyclists. See
the Traffic Signs Regulations and General Directions 2002 (SI 2002/3113).
672
Wilkinson v Chetham-Strode [1940] 2 K.B. 310, which, today, would amount to contributory
negligence. See also the provisions of the Highway Code paras 7, 8 and 9. cf. where pedal cyclist
enters crossing on green light but the lights change: Radburn v Kemp [1971] 1 W.L.R. 1502.
673
674
Frank v Cox (1967) 111 S.J. 670.
675
Mulligan v Holmes [1971] R.T.R. 179 (20 per cent contributory negligence).
676
Eva v Reeves [1938] 2 K.B. 393; Ward v London County Council [1938] 2 All E.R. 341 (fire
engine not entitled to disregard traffic lights); Knight v Cooper Supply Services (1965) 109 S.J. 358
(the driver entering crossroads with the lights in his favour was not guilty of contributory negligence
if he collided with another vehicle entering the crossing against the lights); Davis v Hassan (1967)
117 New L.J. 72; Butters v Fenner & Co (1967) 117 New L.J. 213; Ramoo S/O Erulapan v Gan Soo
Swee [1971] 1 W.L.R. 1014; Singh v Nixon and Costello (1974) 21 W.I.R. 203, Guyana CA; Horsman
v McGarvey [1983] 3 W.W.R. 564, CA British Columbia but cf. Shepherd v Zilm (1976) 14 S.A.S.R.
257 (claimant drove through traffic lights set at red against him and collided with the defendant
motorist, who had taken no avoiding action, although he could have seen that the claimant was not
going to stop, it was held that the defendant was negligent and thereby liable for 25 per cent of the
claimant’s damage).
[787]
to a change of lights, or which foreseeably may still be crossing it, until it is safe
to do so.677
10–225 A driver who, in plain view, was turning to his right across a main road and
into a side road at a junction, with traffic lights in his favour, was not negligent
for failing to make allowance for an oncoming vehicle which did not stop at the
lights against it.678 Where a van driver executed such a right turn too early and
collided with an approaching motorcyclist, who had also entered the crossroads
with the traffic lights in his favour but was intent upon riding straight ahead, the
van driver was wholly to blame.679 A motorist, who failed to realise that traffic
lights were not functioning properly could be guilty of negligence,680 despite the
presumption that traffic lights would be working properly.681 Drivers of emer-
gency vehicles682 are, by reg.36 of the Traffic Signs Regulations and General
Directions 2002, exempt from complying with traffic light signals in circum-
stances where the adherence to a red traffic light would hinder the purpose for
which the vehicle was being used.683 However a common law defence of
necessity is not available should an accident occur. The essential effect of the
regulation is that the driver must treat a red light as a ‘‘give way’’ sign and not
enter upon the junction in a manner or at a time which would endanger another
person or cause any motorist to change speed or course in order to avoid an
accident.684
10–226 Road junctions. When coming from a side road into a main road, the driver
or rider of a vehicle should select such a moment as will allow him to enter the
main road with safety. There is no principle of law that a driver is entitled to
emerge blind, from a minor road where his vision is obscured, by inching
forwards beyond his line of vision.685 At a junction with double broken white
lines across the road a driver must let traffic on the major road go by first. When
turning into a main road the obligation to give way is a continuing one and is
owed even to vehicles which are themselves travelling at a speed in excess of the
speed limit.686 At junctions with a ‘‘Stop’’ sign and solid white line across the
677
Radburn v Kemp [1971] 1 W.L.R. 1502 (pedal cyclist, who had entered a five-way road junction
when the lights were at green in his favour and had crossed two-thirds of the junction before the lights
changed in favour of the defendant, who then drove his car forwards and into collision with him).
678
Hopwood Homes v Kennerdine [1975] R.T.R. 82, CA; applied in Miller v Evans [1975] R.T.R. 70,
CA.
679
Smithers v H. & M. Transport (Oxford) (1983) 133 New L.J. 558.
680
Ramoo S/O Erulapan v Gan Soo Swee [1971] 1 W.L.R. 1014; Sudds v Hanscombe [1971] R.T.R.
212, CA.
681
Tingle Jacobs & Co v Kennedy [1964] 1 W.L.R. 638n.
682
In this context an emergency vehicle is one being used for fire brigade, ambulance, bomb or
explosive disposal, national blood service or police purposes.
683
SI 2002/3113.
684
See Griffin v Mersey Regional Ambulance Service [1998] P.I.Q.R. P34, CA (claimant 60 per cent
to blame after collision with ambulance crossing junction when lights on red since he failed to hear
its klaxon, or to see it or to be alerted to the possibility of its presence by the movements of another
vehicle).
685
Worsford v Howe [1980] 1 W.L.R. 1175, CA.
686
Dolby v Milner (1996) 10 C.L. 336, CA (driver of car turning right 75 per cent to blame; speeding
motorcycle 25 per cent).
[788]
approach a driver must come to a halt at the line and wait before moving off.687
A driver at a junction must not assume that a vehicle approaching from the right
and signalling a left turn will in fact turn left: it is proper to wait to make sure.
Where there is a doubt about priority at a junction there is a convention that the
vehicle which has the other to its right is the give way vehicle.688
It is an offence to disobey a ‘‘Slow’’ or ‘‘Halt’’ sign.689 However, although a 10–227

vehicle on a minor road must give way,690 it is the duty of a vehicle on the major
road to approach with caution.691 Should the possibility of danger be reasonably
apparent, it would be negligent for a driver on the major road not to take
precautions.692 This does not involve keeping a foot over the brake pedal on the
chance that a car, being driven dangerously, emerges suddenly from a side road
without stopping,693 unless it ought to have been apparent that the danger of a
collision was more than just a mere possibility.694
Turning right. Paragraphs 179, 180 and 181 of the Highway Code deal with 10–228
turning right. Motorists are advised: to use their mirrors to know the position of
vehicles behind; to give a right-turn signal; to take up a position just left of the
middle of the road or in a space marked for right turning traffic; and to leave
room for other vehicles to pass on the left if possible. Before making the turn
drivers should wait for a gap between themselves and any oncoming traffic and
should check their mirrors and blind spot to be sure that they are not being
overtaken.
Turning left. The Highway Code cautions left turning drivers not to overtake 10–229
before turning left and to watch out for traffic coming up the nearside, especially
cyclists and motorcyclists.695 When turning left drivers should give way to any
vehicles using a bus lane, cycle lane or tramway in either direction.
687
See para.171 of the Highway Code; also Macandrew v Tillard, [1907] S.C. 78; Campbell v Train,
1910 S.C. 475.
688
See Sellers L.J. in McIntyre v Coles [1966] 1 W.L.R. 831 at 834.
689
Road Traffic Act 1988 s.36; Tolhurst v Webster (1936) 53 T.L.R. 174; Anderson v Andrew’s
Ambulance Assn, 1943 S.C. 248, where the effect of the ‘‘Slow, Major Road Ahead’’ sign is
discussed. The sign ‘‘Slow’’ means proceed at such a speed that you can stop if, when you reach the
crossing, you find someone in the process of crossing or about to cross: Buffel v Cardox (Great
Britain) Ltd [1950] 2 All E.R. 878.
690
In Harding v Hinchcliffe, The Times, April 8, 1964, it was held that the defendant, who was
waiting to drive from a minor road, was negligent in doing so as a bus approached signalling a left
turn: his vision was restricted and he could not see the motorcyclist with whom he collided, who had
been overtaking the bus.
691
See Robertson v Wilson, 1912 S.C. 398; McNair v Glasgow Corp, 1923 S.C. 398; Hutchinson v
Leslie, 1927 S.C. 95; Lang v London Transport Executive [1959] 1 W.L.R. 1168; Watkins v Moffatt
(1967) 111 S.J. 719.
692
Lang v London Transport Executive [1959] 1 W.L.R. 1168. See also Williams v Fullerton (1961)
105 S.J. 208 where the CA held that a driver on a major road had a duty to look out for and guard
against excessive speed by drivers on minor roads.
693
Humphrey v Leigh [1971] R.T.R. 363 (doubting Ormrod L.J. in Williams v Fullerton, above).
694
Truscott v McLaren [1982] R.T.R. 34, CA, applying the dictum of Lord Dunedin in Fardon v
Harcourt-Rivington (1932) 146 L.T. 391, 392 (the driver on the major road was held to one-fifth and
the driver on the minor road four-fifths to blame).
695
paras 182 and 183.
[789]
10–230 Roundabouts. On approaching a roundabout a driver should decide as early

as possible which exit to take and find the correct lane. Traffic from the right has
priority unless road markings indicate otherwise. It is necessary to keep a watch
for traffic, particularly cyclists and motorcyclists, already on the roundabout. At
para.186 the Highway Code advises:
‘‘When taking the first exit to the left, unless signs or markings indicate otherwise:
u signal left and approach in the left-hand lane
u keep to the left on the roundabout and continue signalling left to leave.
When taking an exit to the right of going full circle, unless signs or markings indicate
otherwise
u signal right and approach in the right-hand lane
u keep to the right on the roundabout until you need to change lanes to exit the
roundabout
u signal left after you have passed the exit before the one you want.
When taking any intermediate exit, unless signs or markings indicate otherwise
u select the appropriate lane on approach to the roundabout
u you should not normally need to signal on approach
u stay in this lane until you need to alter course to exit the roundabout
u signal left after you have passed the exit before the one you want.
When there are more than three lanes at the entrance to a roundabout, use the most
appropriate lane on approach and through it.’’
10–231 A driver on a roundabout should bear in mind the likely movement of other
traffic. Where a driver mistakenly passed the exit she wanted and believing it too
late to turn, just carried on around the roundabout, thereby obstructing the path
of the claimant motorcyclist who himself wished to use the exit and a collision
ensued, liability was apportioned equally, even though the car had made no
sudden or untoward movement in the road. The driver should have been aware
that there might be somebody who wanted to leave the roundabout at that exit
and taken care accordingly.696
10–232 Mini-roundabouts. Mini-roundabouts are much smaller than conventional

roundabouts and usually have a painted disc in the centre rather than a physical
island. The same rules apply to mini-roundabouts as to conventional ones.697 All
vehicles must pass round the central markings except large vehicles which are
physically incapable of doing so.698 At double mini-roundabouts drivers should
treat each mini-roundabout as a separate roundabout.699
10–233 Signals. The driver or rider of a vehicle should give the proper signal before
moving out or overtaking, before stopping, slowing down or changing his
direction, and all signals should be given clearly and in good time to give an
indication of intention to other users of the highway. Attention must be paid to
696
Grace v Tanner [2003] EWCA Civ 354.
697
698
Road Traffic Act 1988 s.36.
699
[790]
the signals of other drivers and prompt action taken in response. A driver should
ensure that the indicator, if it is used, gives the signal intended, and is cancelled
immediately after use.700 Failure to do any of these is evidence of negligence.701
A confusing or ambiguous signal which in turn causes an accident is likely to
give rise to a finding of negligence.702
Whilst a driver must obey signals regulating traffic given by police officers, 10–234
traffic officers or traffic wardens,703 but it is no defence to a claim based on an
otherwise negligent manoeuvre that a signal to proceed was given by some
person lacking such authority.704
Lights. During the period between sunrise and sunset and where there is 10–235
seriously reduced visibility is obligatory for the driver or rider of a vehicle to
ensure that every front position lamp, rear position lamp and registration plate
lamp is lit.705 The Road Vehicles Lighting Regulations 1989 make provisions for
the fitting of lamps, reflectors and rear markings, their use and maintenance.
Breach of the statutory duty to carry the lights prescribed by the regulations 10–236
does not of itself give a person, who has suffered damage in consequence thereof,
any right to damages.706 The duty is a public duty only, punishable by the
penalties prescribed under the Road Traffic Offenders Act 1988, and is not
enforceable by any individual aggrieved. Driving in the dark without proper
lights, however, is evidence of negligence.707
Accordingly, failure to carry the usual lights, which misleads the driver of 10–237
another vehicle and causes a collision, is negligence.708 The same applies if lights
are used in a manner which is misleading. Where the defendant’s lorry was
700
701
The duty of the driver of a vehicle with a left-hand drive is discussed in Daborn v Bath Tramways
Motor Co [1946] 2 All E.R. 333.
702
See Coke v Willett [1973] R.T.R. 422 (one-third responsibility on behalf of the driver giving the
misleading signal); Wadsworth v Gillespie [1978] C.L.Y. 2534 (misleading trafficator signal was
given by the claimant motorcyclist, driving along the major road, as a result of which the defendant
motorist pulled out of a side road and across his path; claimant held one-third and defendant two-
thirds to blame for the accident); Winter v Cotton [1985] 4 C.L. 339 (the defendant motorist, driving
along the major road, was held wholly to blame for the collision). Compare Soils Ltd v Bromwich
(1998) C.L.Y. 3913 (no liability upon driver indicating left where he intended to turn shortly after the
junction from which the other vehicle emerged).
703
Vehicle and Operator Services Agency (VOSA) officers have powers to stop vehicles on all roads
in England and Wales. Highways Agency officers have powers to stop vehicles on motorways and
some ‘A’ class roads in England.
704
If such person, standing beside his parked motorvehicle, elects to give a signal to another motorist,
although he is under no obligation to give any signs at all, as a result of which the latter overtakes
the stationary vehicle, he owes a duty to him to give him an accurate signal, which will not result,
for example, in his driving forward into head-on collision with another vehicle approaching from the
opposite direction: Grange Motors (Cwmbran) v Spencer [1969] 1 W.L.R. 53.
705
reg.24 of the Road Vehicles Lighting Regulations 1989 (SI 1989 no.1796).
706
Currently the Road Vehicles Lighting Regulations 1989 (SI 1989/1796). See Clarke v Brims
[1947] K.B. 497, approved by the CA in Coote v Stone [1971] 1 W.L.R. 279; see also West v Lawson
Ltd, 1949 S.C. 430; Moore v Maxwells of Emsworth Ltd [1968] 1 W.L.R. 1077.
707
Baker v Longhurst & Sons Ltd [1933] 2 K.B. 461 at 464, per Scrutton L.J.
708
Pressley v Burnett, 1914 S.C. 874; Wintle v Bristol Tramways and Carriage Co Ltd (1917) 86
L.J.K.B. 24.
[791]
parked on the offside of the road at night with its headlamps on and the claimant
drove into it, each party was equally to blame.709 It was not negligent where,
attending a fire, a fire engine was parked close to the kerb with only the blue,
rather than the red, flashing warning lights illuminated. The fire brigade’s first
duty was owed to those in peril from the fire, and the blue lights were a sufficient
warning to approaching traffic.710
10–238 Where the person responsible for a motor vehicle leaves it at night unlit on the
road and it is involved in an accident, it is for that person to show that all
reasonable steps have been taken to avoid creating or continuing the hazard.711
When a lorry was properly provided with a rear light, which unknown to the
driver and without negligence on his part, became extinguished, and a collision
with an overtaking vehicle in the dark occurred, there was no liability on the lorry
owner.712 The presumption of negligence was also rebutted where a car, whose
lighting system had failed without fault of the driver, was run into while
stationary by a street light as it was towed away.713 When a motorist stopped his
car at night on a road in a position where it was only safe if it was exhibiting
lights, it was negligent to use the ‘‘self-starter’’ for prolonged periods which had
the effect or either dimming or extinguishing the compulsory lights.714 It is
negligent to drive a vehicle with inadequate lights so that the driver cannot see
an obstruction or traffic on the road in front of him in sufficient time to stop or
avoid it.715
10–239 A motorist must not use lights in a way which would dazzle or cause
discomfort to other road users.716 Where a vehicle’s lights were so bright that
they dazzled an approaching motorist, who, despite exercising reasonable care,
collided with a pedestrian in front of him, liability was established.717 Never-
theless, where a motorist drives on dipped headlights for the convenience of
709
Chisman v Electromation (Export) (1969) 6 K.I.R. 456; Watson v Heslop [1971] R.T.R. 308.
710
Amos v Glamorgan County Council (1967) 66 L.G.R. 166.
711
In Moore v Maxwells of Emsworth Ltd [1968] 1 W.L.R. 1077 the CA held that the presumption
of negligence arising from the presence of an unlit vehicle on a road after dark was rebutted by the
evidence. For the exemption of certain vehicles, whilst standing or parked on roads, from the
necessity to exhibit front and rear lights during the hours of darkness, see reg.24 of the Road Vehicles
Lighting Regulations 1989 (SI 1989/1796). See also Tompkins v Royal Mail Group Plc [2006] R.T.R.
5 (where the claimant drove into an unlit trailer parked under a street light on its incorrect side of the
road, he was himself principally to blame, however it was right to adjust the apportionment of
responsibility as between himself and the owner of the trailer by 10 per cent to reflect the fact that
the trailer had been deliberately and unnecessarily left in a location where it breached parking and
lighting regulations: the final division was 65 per cent:35 per cent, the claimant bearing the greater
share of blame). See further paras 10–253 to 10–257, below.
712
Maitland v Raisbeck [1944] K.B. 689 (the driver of the overtaking vehicle, a bus, was not
negligent, so that the injured passengers in the bus had no remedy).
713
Parish v Judd [1960] 1 W.L.R. 867, considered in Lee v Lever [1974] R.T.R. 35, CA (where a car
was left unlit because of lights failure on a clearway, which was well lit, the driver was negligent in
failing to display a warning sign but similarly the other driver, who had driven into the stationary
vehicle, was found to be equally negligent in failing to keep a proper look out).
714
Young v Chester [1973] R.T.R. 319.
715
Pronek v Winnipeg, Selkirk and Lake Winnipeg Ry [1933] A.C. 61.
716
Highway Code para. 114.
717
Saville v Bache (1969) 113 S.J. 228 (a driver is under a duty to dip his headlights unless there is
some good reason for keeping them on at full beam).
[792]
oncoming traffic, he must travel at a speed which will enable him to deal with the
ordinary problems of the highway.718
Flashing headlights. The Highway Code provides719 that the flashing of 10–240
headlights means only one thing: it lets another road user know of a driver’s
presence. Headlights should not be flashed for any other reason and it must never
be assumed as a result of such action that it is safe to proceed.720 Although in
some circumstances the flashing of headlights can mean ‘‘come along as far as I
am concerned’’ it does not exonerate the driver who acts upon it from satisfying
himself that his manoeuvre is safe.721
Hazard Warning Lights.722 These days most motor vehicles are fitted with 10–241
hazard warning lights in the form of amber indicator lights which flash
simultaneously. These may be used as a means of warning other road users that
a stationary vehicle ahead may pose a hazard. They are not to be used as an
excuse for dangerous or illegal parking. Hazard warning lights must not be used
whilst the vehicle is being driven except where upon a motorway or unrestricted
dual carriageway in circumstances where it is necessary to warn other road users
of a hazard or obstruction ahead.
Sounding horns. Sounding a horn or a bell may be useful to warn other traffic 10–242
of the approach of a vehicle but does not absolve a driver or rider of the duty to
take care or give a right of way.723 The omission to sound a horn or a bell is ‘‘a
collateral fact only, and not an independent act of negligence’’724; by itself it is
not evidence of negligence, although it may be taken into account, with other
circumstances, in determining whether the driver or rider was negligent.725
Normally, there is no need to sound a horn when overtaking another vehicle 10–243
which is going straight ahead, but it may become necessary, if there is a
718
Young v Chester [1973] R.T.R. 319. See also such cases as Hill-Venning v Beszant [1950] 2 All
E.R. 1151 and Harvey v Road Haulage Executive [1952] 1 K.B. 120.
719
para.110.
720
Not as a salute or recognition between drivers, and certainly not as a warning of a police radar trap
or check point ahead if the receiving driver is breaking the law when such a signal could possibly
amount to an offence of obstructing police in the execution of their duty. See Bastable v Little [1907]
1 K.B. 59; Betts v Stevens [1910] 1 K.B. 1.
721
Clarke v Winchurch [1969] 1 W.L.R. 69, which was explained by the CA in Worsfold v Howe
[1980] 1 W.L.R. 1175; Leeson v Bevis & Tolchard Ltd [1972] R.T.R. 373.
722
See Highway Code, para. 116.
723
The Road Vehicles (Construction and Use) Regulations 1986 (SI 1986/1078) reg.37, requires the
horn to be in working order. The horn must not be sounded at night (11.30 pm–7.00 am) in a built-up
area. See Highway Code para.112.
724
See Wintle v Bristol Tramways and Carriage Co Ltd (1917) 86 L.J.K.B. 240; Smith v Co-operative
Group Ltd [2010] EWCA Civ 725.
725
e.g. see Foskett v Mistry [1984] R.T.R. 1, CA, where it was held that if only the motorist had
sounded his horn, on the balance of probabilities the claimant’s attention would have been alerted,
before running down a slope and thence out on to the roadway in open parkland, thus colliding with
the vehicle. See also Bryce v McKirdy, 1999 S.L.T. OH, (driver 25 per cent to blame for collision with
workman who stepped backwards into the path of her car when she realised he could do so and failed
to sound her horn).
[793]
movement of the overtaken vehicle such as to put the overtaking driver on

inquiry as to what it is going to do.726
10–244 It has been held that there is no duty on a motorist to sound a horn, on seeing
a pedestrian standing on an adjoining pavement, whether or not that person is
showing any signs of leaving the kerb and dashing across the road727; nor, on the
facts, where a pedestrian was standing still in the middle of the road apparently
intending to cross,728 or when driving through a residential area, although the
driver was aware of the slight possibility that a child might suddenly run out into
the roadway from behind vehicles parked against the kerbside.729
10–245 Defective vehicle. The driver or rider of a vehicle has a duty to use reasonable
care to keep the vehicle in a roadworthy condition, so that proper control over the
vehicle can be exercised. There is no absolute duty in tort to keep the vehicle in
proper condition.730 So, where, owing to a defect in the axle of a lorry, a wheel
came off while the lorry was being driven in the highway and damaged a van,
there was no liability on proof that the lorry had been returned from the makers
two days before, following repairs and an overhaul.731
10–246 The owner of a vehicle must take such steps as a prudent owner would take to
keep a vehicle in a proper state of repair, maintenance and adjustment. If such
care is not taken so that the vehicle is defective, for example, if the steering of
a car becomes so worn that the driver’s control is compromised,732 or if the
vehicle emits dense clouds of smoke from its exhaust pipe on the highway,733 it
is evidence of negligence. Thus, the driver of a vehicle known to be defective
who nevertheless drove it on to the carriageway in foggy weather, where it broke
down, bore a proportion of the responsibility for multiple collisions involving
many following vehicles, each of which was being driven negligently.734
10–247 In Henderson v Henry E. Jenkins & Sons,735 a fatal accident occurred where
the brakes of a lorry failed. The brake failure was due to corrosion in a brake pipe
726
Holdack v Bullock Bros (Electrical) & Co (1965) 109 S.J. 238.
727
Davies v Journeaux [1976] R.T.R. 111, CA.
728
Liddell v Middleton [1996] P.I.Q.R. P36, CA (where it was observed that it would be quite
different if an emergency arose and a pedestrian started to cross the road at a time of danger: the
motorist would then be under a duty to sound his horn even if he thereby committed a criminal
offence under reg.99(1)(b) of the Road Vehicles (Construction and Use) Regulations 1986).
729
Moore v Poyner [1975] R.T.R. 127, applied in Saleem v Drake [1993] P.I.Q.R. P129, CA, but cf.
the situation in Armstrong v Cottrell [1993] P.I.Q.R. P109, CA. See also Nolan v Marsh Motors Pty
and Holzberger [1965] Q.L.R. 490 (pedestrian walking out into road from behind vehicles travelling
in the opposite direction to the driver).
730
But as regards the criminal law, see the effect of the Road Vehicles (Construction and Use)
Regulations 1986 (SI 1986/1078) and s.2A of the Road Traffic Act 1988.
731
Phillips v Britannia Hygienic Laundry Co [1923] 1 K.B. 539, affirmed [1923] 2 K.B. 832. Stennett
v Hancock [1939] 2 All E.R. 578 is a similar case.
732
Hutchins v Maunder (1920) 37 T.L.R. 72, where the defendant was held liable, although he was
not negligent in failing to discover the defect. In this respect, the case goes too far: see Phillips v
Britannia Hygienic Laundry Co [1923] 1 K.B. 539, affirmed [1923] 2 K.B. 832.
733
Tysoe v Davies [1984] R.T.R. 88.
734
Lloyds Bank Ltd v Budd [1982] R.T.R. 80, CA.
735
[1970] A.C. 282.
[794]
at a location where the corrosion could not be seen except by removing the pipe
completely from the vehicle. The corrosion was unusual and no explanation was
given by the defendants for its presence. The House of Lords held that the
defendants had not discharged the burden of proving that they had taken all
reasonable care. It was necessary for the defendants to prove that nothing unusual
had occurred in the history of the lorry to account for the failure.
It has also been held that a purchaser, who buys a second-hand motor vehicle
with a valid MOT certificate, is not necessarily relieved thereby of his duty of
care in relation to the safety of the vehicle : the existence of the certificate is
simply a factor which ought to be taken into account when deciding whether or
not his duty has been discharged.736
Not only must proper care be taken to see that a vehicle is in a roadworthy 10–248
condition before it is used on the road, but proper care must also be taken to see
that it is properly loaded. When a vehicle was sent out with a load which was
negligently secured, and was driven under a low bridge, so that the load was
thrown off, injuring a passer-by, the lorry’s owner was liable.737
The fact that a vehicle overturns on the highway,738 that a wheel comes off,739 10–249
that a tyre bursts,740 or that any part of the vehicle breaks and causes a
collision,741 is evidence on which, in the absence of a satisfactory explanation, a
finding of negligence on the part of the owner can be made.
Skidding and violent swerving. The fact that a vehicle, such as a motor-car, 10–250
is liable to skid on the road in certain circumstances, does not make it a nuisance
to use that vehicle on the road.742 It does, however, make it incumbent on the
driver to use additional care, proportional to the greater risk, both with regard to
his driving and also to the condition of his tyres.743
If a vehicle, driven in the roadway, collides with a fixed object or a pedestrian 10–251
on the footpath,744 the fact of the accident itself is evidence of negligence against
736
Rees v Saville [1983] R.T.R. 332, CA, distinguishing Henderson v Henry E. Jenkins & Sons, n.95,
above. (On the facts, the defendant purchaser was not obliged, before he drove his used motorcar, to
have it expertly examined, in the absence of any indication that it was defective ; nor to have the
vehicle serviced within a month of its being purchased). See also Worsley v Hollins [1991] R.T.R.
252, CA (the existence of a valid Ministry of Transport certificate of roadworthiness was insufficient
in itself to discharge the burden of showing that reasonable care had been taken in maintaining the
defendant’s vehicle).
737
Farrugia v G.W. Ry [1947] 2 All E.R. 565.
738
Halliwell v Venables (1930) 99 L.J.K.B. 353.
739
Phillips v Britannia Hygienic Laundry Co [1923] 1 K.B. 539. It is not, by itself, evidence of
negligence on the part of the repairers: Britannia Hygienic Laundry Co v Thornycroft (1926) 95
L.J.K.B. 237.
740
Barkway v South Wales Transport Co [1950] 1 All E.R. 392 at 394, 395.
741
Templeman v Haydon (1852) 12 C.B. 507; Welsh v Lawrence (1818) 2 Chit. 262; Cotterill v
Starkey (1839) 8 C. & P. 691.
742
Wing v L.G.O. Co [1909] 2 K.B. 652; Parker v L.G.O. Co (1909) 101 L.T. 623.
743
Ritchie’s Car Hire Ltd v Bailey (1958) 108 L.J. 348 (driver swerved violently and crashed into a
tree on the kerb).
744
Chapman v Post Office [1982] R.T.R. 165, CA (projecting wing mirror struck pedestrian on the
pavement).
[795]
the driver, even if it is proved that the vehicle skidded into that position.745 In the
past, the mere fact of a skid was thought to be a neutral circumstance which
assisted neither party. Hence, it was held to be no defence to the driver to prove
that his vehicle skidded, and, equally, it was not held to be evidence of negligent
driving on his part.746 The fact of a skid may suggest, on the one hand, that the
driver had been driving too fast or had applied his brakes too fiercely and
suddenly, having regard to the road conditions prevailing at the time, so as to be
evidence of negligence on his part. On the other hand, the skid may be consistent
with the driver’s having exercised proper caution but was caused by either the
negligence of a third party or an inevitable accident.747 Nevertheless, the modern
approach has been to take an unexplained and violent skid as itself evidence of
negligent driving.748
10–252 Opening doors. It is negligent to open the door of a vehicle,749 without first
taking reasonable care to see that it is safe. So, a passenger in a van was liable
in negligence when he opened the nearside door to get out, without taking proper
care, as a result of which a pedestrian on the pavement was struck and
injured.750
10–253 Obstructions: parking and leaving vehicles on highway. Where a vehicle is

left on the highway the person in charge of it owes a duty of care to leave it in
such a place that it will not be a danger to other users of the highway.751
ILLUSTRATIONS
10–254 It has been held to be negligent: to park on a bend in a main road when the
driver had overshot his turning752; to park near road works753; to leave a car
745
Isaac Walton & Co v Vanguard Motorbus Co (1908) 25 T.L.R. 13; Barnes Urban District Council
v L.G.O. Co (1908) 100 L.T. 115; Ellor v Selfridge & Co Ltd (1930) 46 T.L.R. 236; Liffen v Watson
(1939) 161 L.T. 351 (the report in [1940] 1 K.B. 556 deals solely with damages); Laurie v Raglan
Building Co [1942] 1 K.B. 152. The pavement should give security for those persons using it from
vehicles using the road and if a pedestrian be injured by a vehicle overlapping the pavement, e.g. by
a projecting door handle, then the driver may be liable in negligence: Watson v Whitney & Co [1966]
1 W.L.R. 57; Ottley v L.T.B., The Times, January 21, 1966 (a pedestrian’s foot was run over at a bus
stop).
746
Laurie v Raglan Building Co [1942] 1 K.B. 152.
747
Hunter v Wright [1938] 2 All E.R. 621; Ritchie’s Car Hire Ltd v Bailey (1958) 108 L.J. 348.
748
Richley v Faull [1965] 1 W.L.R. 1454. cf. Elizabeth v Motor Insurers’ Bureau [1981] R.T.R. 405
where a motorcyclist crashed into the back of a van, which had braked very suddenly, and the CA
expressed the view that in these circumstances the burden of proof was on the van driver to explain
why had braked in such a manner. See Simmonds, ‘‘A Skid as Evidence of Negligence’’ 130 J.P.J.
283.
749
It is an offence under the Road Vehicles (Construction and Use) Regulations 1986 (SI 1986/1073)
reg.105 to open a door of a motor vehicle on a road so as to cause injury or danger to any other
person.
750
Brown v Roberts [1963] 2 All E.R. 263.
751
It is an offence to leave a vehicle on any road in such a position or in such circumstances as to
be likely to cause danger to other persons using the road: Road Traffic Act 1988 s.42; Road Vehicles
(Construction and Use Regulations) 1986 (SI 1986/1078), regs 101, 103; Watson v Heslop [1971]
R.T.R. 308, CA. See also paras 214–226 of the Highway Code.
752
Waller v Levoi (1968) 112 S.J. 865; Stevens v Kelland [1970] R.T.R. 445.
753
Stevens v Kelland [1970] R.T.R. 445.
[796]
unattended on a slope when the handbrake was out of order and it was kept in
position only by a block of wood underneath one of the wheels754; to leave a car
unattended on a steep gradient, even though it remained at rest for half an hour
and the cause of its starting downhill was unexplained755; to leave a lorry at the
top of a steep and narrow street unattended with the engine running and without
taking proper precautions to secure it756; to leave a car in such a position that it
could be set in motion by a child.757 There is no rule of law that a clumsily-
parked motor vehicle can never give rise to liability in negligence.758
It raises a strong presumption of negligence to leave a vehicle unattended on 10–255

a dark road.759 So, it was negligent to leave a vehicle parked on the right hand
side of the carriageway at night760; to park at night in a busy main road where
other traffic could not pass easily761; to stop at night on a road and exhaust the
battery of the vehicle by repeatedly trying to start the engine so that compulsory
lights were extinguished762; to leave a vehicle unlit because of an electrical fault,
without displaying a warning sign, albeit on a well-lit clearway.763 Where an unlit
vehicle is left unattended at night and there is evidence of negligence, it is likely
also to constitute a nuisance.764
Negligence was not established where a lorry broke down at night on a 10–256
clearway and when its rear lights were still illuminated, it was run into by the
claimant from behind: it was immobile and the lorry driver had not been
negligent in failing to take it into a side road or on to the verge. Nor was it
negligent, in the absence of evidence of practice, to fail to provide a lorry driver
with a torch or flashing warning light.765 Where a motor-vehicle was left
unattended on a level highway and trespassers moved it backwards into a shop
window the owner was not liable.766 Nor was an owner liable where an unhorsed
van was left unattended and children climbed on to it and were hurt.767
754
Martin v Stanborough (1924) 41 T.L.R. 1.
755
Parker v Miller (1926) 42 T.L.R. 408.
756
Hambrook v Stokes Bros [1925] 1 K.B. 141.
757
Martin v Stanborough (1924) 41 T.L.R. 1.
758
Chop Seng Heng v Thevannasan S/O Sinnapan [1976] R.T.R. 193.
759
Parish v Judd [1960] 1 W.L.R. 867 at 870 and 871, per Edmund Davies J.; Moore v Maxwells of
Emsworth Ltd [1968] 1 W.L.R. 1077; Chisman v Electromation (Export) (1969) 6 K.I.R. 456.
760
Abbot Kleysen’s Cartage Co v Kasza and Ace Construction Co [1976] 4 W.W.R. 20. To do so is
an offence under reg.101 of the Road Vehicles (Construction and Use) Regulations 1986 (SI
1986/1078).
761
Watson v Heslop [1971] R.T.R. 308; Young v Chester [1973] R.T.R. 319.
762
Young v Chester [1973] R.T.R. 319.
763
Lee v Lever [1974] R.T.R. 35; also Campbell v Gillespie, 1996 S.L.T. 503, OH (a mechanic
extinguished the lights of a lorry parked at the side of a road, in the course of effecting a repair, but
parked his own vehicle, which was displaying lights, to the front of the lorry rather than the rear;
however, the motorist who collided with the lorry bore 60 per cent of the blame, since there was a
police warning sign and other vehicles had seen and avoided the obstruction).
764
Maitland v Raisbeck [1944] K.B. 689; applied in Parish v Judd, above.
765
Butland v Coxhead (1968) 112 S.J. 465.
766
Ruoff v Long & Co [1916] 1 K.B. 148.
767
Donovan v Union Cartage Co [1933] 2 K.B. 71.
[797]
10–257 If an obstruction in the highway is caused and the claimant can prove some
particular damage over and above mere inconvenience, an action can be
maintained in nuisance, unless the obstruction is authorised by statute.768 There
may well also be an action in negligence. While it may be a nuisance to leave a
large, wide lorry on the road overnight in a place where it was an obstruction,
albeit under a street light and with its own compulsory lights illuminated, a
claimant who collided with it would also have to establish it was a danger in
order to recover damages for his injuries.769
10–258 Learner drivers, their passengers, instructors and examiners. The duty of
care owed by a learner driver fell to be considered in Nettleship v Weston.770 The
Court of Appeal held that the duty was the same objective and impersonal
standard as that owed by every driver to every passenger, including the person
teaching her, to the public at large and to the owners of property, both on and off
the highway, in the criminal and civil law.771 Such a duty is to drive with that
degree of skill and care to be expected of a competent and experienced driver.
The standard of care was not affected or lowered in any way by reason of the
instructor’s knowledge of the learner’s lack of experience and skill772 since
uncertainties, endless confusion and injustice would result if, in the law of
England, varying standards were applied according to one person’s knowledge of
another’s skill or lack of it or whether they were sound or unsound in mind and
768
Benjamin v Storr (1874) L.R. 9 C.P. 400; Fritz v Hobson (1880) 14 Ch.D. 542; Vanderpant v
Mayfair Hotel Co [1930] 1 Ch. 138.
769
Dymond v Pearce [1972] 1 Q.B. 496; applied in Wills v T.F. Martin (Roof Contractors) Ltd [1972]
R.T.R. 368 to a builder’s skip, with lights, placed on the road. The meaning of the word ‘‘deposited’’
in the Highways Act 1980, s.139, includes the leaving of a skip on the highway and is not restricted
to the act of placing it there: Craddock v Green (1983) 81 L.G.R. 235. For cases involving poorly-lit
skips, see Drury v Camden London Borough Council [1972] R.T.R. 391 and Saper v Hungate Builder
Ltd [1972] R.T.R. 380 (skip owners and those who collide with them may be liable in varying degrees
of fault). See Poole, ‘‘Liability for Obstructing the Highway’’ 115 S.J. 940; Poole, ‘‘Skip on
Highways’’ 124 New L.J. 1073; Poole, ‘‘Responsibility of Highway Authorities for Traffic Hazards’’
125 New L.J. 1059; Williams ‘‘Skips on the Highway: Some Tips’’ 4 C.S.W. 281.
770
[1971] 2 Q.B. 691 (the claimant, an experienced driver, agreed to give a friend’s wife some
driving lessons in her husband’s own car, whereupon he took her out on the road, with her holding
the steering wheel and controlling the pedals, whilst he moved the gear lever and handbrake. She
made a mistake and took panic, as a result of which the car, moving slowly, mounted the kerb and
struck a lamp standard, injuring the claimant); considered in Lovelace v Fossum (1972) 24 D.L.R.
(3d) 561 where it was held that the duty of the pupil driver was to use the best skill he has and to obey
the instructor in so far as he has acquired the necessary skill (the car got into a skid and the instructor
was injured so that the blame was apportioned equally between himself and the pupil).
771
See the comments about ‘‘fault’’ made by Megaw L.J. in R. v Gosney [1971] Q.B. 674 at 680.
772
Salmon L.J., in disagreeing with the majority on this point, said that the learner could not, in the
normal case, owe his instructor a duty to drive with a degree of skill which they both knew he did
not possess. ibid. at 704B–C, 705A–B. See Weaver, ‘‘One Law for All’’ 121 New L.J. 634. It is to
be noted that the HC of Australia in Cook v Cook (1986) 68 A.L.R. 353 took the same view as Salmon
L.J. It accepted that in normal circumstances (i.e. in the absence of special and exceptional facts) the
standard of care required is the degree of care which could reasonably be expected of an experienced
and competent driver. Nonetheless, when the facts are such as to alter the ordinary relationship of
driver and passenger, whereby it would be unreasonable for the usual standard of care to apply, these
would constitute special and exceptional facts, e.g. the passenger well knew that the driver was
unqualified and inexperienced.
[798]
limb, eyesight and hearing.773 Further, it was held that, where the learner driver
and the instructor were jointly controlling the driving, they were, prima facie,
jointly responsible for the accident and, in the absence of evidence that one or
other was to blame, both should be held equally to blame.774
A reasonably competent supervising driver may be justified in permitting a 10–259

learner driver to proceed without dual controls, since it is a perfectly natural
progression in her training.775 Further, it was held that whilst his failure to advise
the learner on the advantages and disadvantages of wearing her seat belt776 could
amount to negligent instruction, it did not amount to negligence causative of the
accident. The relevance of such negligence would only arise for consideration if
the supervisory driver had been held liable to the injured learner driver and had
alleged contributory negligence against her.
Where a learner driver is undergoing a driving test by an examiner appointed 10–260

by the Secretary of State, such a person does not have the same joint control of
the vehicle as a driving instructor. The examiner’s sole purpose is to assess the
examinee’s competence and that will not normally require any interference with
the driving.777 The learner driver owes to the examiner the same duty of care as
to any other passenger. However, the examiner may be justified in interfering
with the learner’s driving if it became essential in the interests of safety.
The owner of a motorcycle was held to have been under a duty, before lending 10–261
it, to warn the rider, whom he knew was inexperienced, about the dangers and
difficulties in handling the machine. But the rider, well knowing his inexperience,
was equally blameworthy for an accident, in failing to ensure that he knew how
to ride the machine properly, before setting off.778 A breach of statutory duty on
the part of a provisional licence holder in driving unaccompanied by a qualified
driver, was insufficient in itself to give a cause of action.779
Passengers. Passengers, in common with their driver, owe a duty of care to 10–262
each other and to other users of the highway, such as for instance that already
dealt with regarding the opening of doors, so as not to endanger other persons or
things.780 But it must surely be arguable that a passenger’s duty is not limited to
773
But see Mansfield v Weetabix Ltd [1998] 1 W.L.R. 1263, CA (no liability where a driver was
unaware that he was suffering from a hypoglycaemic state which impaired his ability to drive, so that
his lorry crashed into a shop, the standard of care to be expected being that of the reasonably careful
driver unaware of a condition affecting his ability to drive). See also article ‘‘Negligent Driving’’
(1997) 9 Ins. L.M. (5), 5 (discusses liability in negligence where driver suffering from illness).
774
Megaw L.J. dissented from the majority on this point and considered that nothing in the evidence
justified a finding of any degree of contributory negligence of the claimant, the instructor driver. ibid.
at 710–711. For the duty of the supervisor of the learner driver, see, e.g. Rubie v Faulkner [1940] 1
K.B. 571 at 575, per Hilbery J.
775
Gibbons v Priestly [1979] R.T.R. 4.
776
For ‘‘seat belts,’’ generally, see paras 10–156 to 10–157, above.
777
British School of Motoring Ltd v Simms [1971] 1 All E.R. 317.
778
Stermer v Lawson (1979) 5 W.W.R. 628.
779
Verney v Wilkins (1962) S.J. 879. Further, see generally Ch.12.
780
[799]
such situations, but could properly be extended to include instances where he has
assumed some responsibility to assist the driver, for instance, by warning of
danger. Other similar situations might arise: where the passenger agrees to keep
a look-out being better placed than the driver to do so; or where advice or
directions are given; or where a passenger agrees to look and listen for
approaching traffic, including trains at a level crossing781; or where the passenger
has seen a danger developing, which the driver has apparently missed and fails
of it. Nonetheless, the courts have been reluctant to make any findings of
contributory negligence against a passenger,782 even where his proper participa-
tion783 might well have made up for the driver’s incompetence784 and, probably,
have avoided an accident.
10–263 Contributory negligence of passengers. A passenger who accepts a lift in a

car may be held guilty of contributory negligence if either he knew that the driver
had consumed an excess amount of alcohol or, knowing that he would be given
a lift afterwards, he had accompanied the driver on a bout of drinking785; or if he
knew that the vehicle was in a defective condition, for example there was no
effective foot-braking system786; or if he failed to take some precaution, such as
wearing a seat belt.787 Where a passenger travelled in the boot of a car knowing
that the driver had consumed excess alcohol his damages were reduced by 30 per
cent in respect of his contributory negligence.788
10–264 Where the driver and passenger are jointly engaged in some unlawful
enterprise, which involves dangerous driving, the defence of ex turpi causa non
oritur actio may apply to defeat the passenger’s claim.789 But the maxim volenti
non fit injuria cannot be invoked to similar effect since, in the context of a road
traffic accident, there is statutory provision which operates to prevent the driver
relying upon it.790 It is not appropriate to make a finding of 100 per cent
contributory negligence against a passenger.791
781
Kemshead v British Transport Commission [1958] 1 All E.R. 119 at 121A–B (per Lord Goddard
C.J.) and at 122B (per Denning L.J.); Skeen v British Railways Board and Scandle (Third Party)
[1976] R.T.R. 281.
782
Scandle v Skeen [1976] R.T.R. 281 (Latey J.).
783
See the development of this from the duty owed by the supervising driver in the case of a learner
driver, referred to in the previous paragraph.
784
Rubie v Faulkner [1940] 1 K.B. 571 at 575.
785
Owens v Brimmell [1977] Q.B. 859. See, further, Ch.4, paras 4–03 to 4–72, above, and
‘‘Passengers with Drunken Drivers’’ 1977 S.L.T. 133; also Roberts and Richard ‘‘Riding with a
drunken driver and contributory negligence revisited’’ J.P.I Law 2004, 1, 21.
786
Gregory v Kelly [1978] R.T.R. 426 (such passenger, who had also failed to wear his safety belt,
was held 40 per cent to blame for his damage).
787
Froom v Butcher [1976] Q.B. 286. See also paras 10–156 to 10–157, above.
788
Gleeson v Court [2008] EWHC 2397 (Q.B.).
789
Pitts v Hunt [1991] Q.B. 24.
790
Pitts v Hunt [1991] Q.B. 24. The current provision is s.149 of the Road Traffic Act 1998; see also
Morris v Murray [1991] 2 Q.B. 6 where, in relation to a crash in a light aircraft, the maxim was
successfully invoked.
791
Pitts v Hunt [1991] Q.B. 24.
[800]
Motorcyclists. The rider and any pillion passenger on a motorcycle, scooter 10–265
or moped must wear a protective helmet which must be fastened securely.792 The
Highway Code advises motorcyclists to wear eye protectors,793 which, if worn,
must comply with the regulations.794 Only one pillion passenger can be carried
and the passenger must sit astride the motorcycle on a proper seat and keep both
feet on the footrests.795 During daylight riding motorcyclists are advised to make
themselves as visible as possible.796 This involves wearing a light or brightly
coloured helmet and fluorescent clothing as well as displaying a dipped head-
light.797
Other cyclists. Much of the discussion above will apply to cyclists as it 10–266
applies to other road users. The Highway Code makes specific reference to the
duties of cyclists at paras 59–82. These duties include obligations as to
appropriate lights, and clothing; maintaining cycles in roadworthy condition;
wearing a helmet798; keeping a proper look out; and avoiding hazards such as
potholes. In Smith v Finch,799 it was observed that a cyclist could be guilty of
contributory negligence in failing to wear a helmet, even though there was no
legal compulsion to do so, but on the facts the failure to wear a helmet had not
contributed to the extent of the injury suffered and so no reduction was
appropriate. The cyclist is directed not to use bus lanes other than those
displaying the symbol of a bicycle; to grip the handlebars with both hands save
where indicating a manoeuvre, not to carry a passenger unless the cycle has an
appropriate adaptation; and not to carry anything which may adversely affect
balance. For a full account, the reader is referred to the provisions of the Code
itself.
Cyclists may ride across special road crossings called ‘‘Toucan Crossings’’. 10–267
These are designed for use by both cyclists and pedestrians who receive an
illuminated signal together.800
Pedestrians. Pedestrians have a right to use the highway and may walk on the 10–268
carriageway of a road save that it is illegal to walk on a motorway or its slip roads
except in an emergency.801 Pedestrians can expect motorists to take reasonable
care.802 Paragraph 1 of the Highway Code advises pedestrians to use pavements
792
Motorcycles (Protective Helmets) Regulations 1998 (SI 1998/1807).
793
794
Motorcycles (Protective Helmets) Regulations 1998 (SI 1998/1807).
795
796
797
For the use of lights generally, see paras 10–235 to 10–239, above.
798
See generally, Fulbrook, ‘‘Cycle helmets and contributory negligence’’ J.P.I. Law 2004, 3, 171.
799
[2009] EWHC 53 (QB). See generally, Stanley, ‘‘Head case’’ 150 S.J. 882; Porter Q.C., ‘‘Blame
the victim’’ 159 NLJ 337; Formby, ‘‘Wheels set in motion’’ 153 S.J. 3.
800
801
Road Traffic Regulation Act 1984 s.17; Motorways Traffic (England & Wales) Regulations 1982
(SI 1982/1163).
802
Boss v Litton (1832) 5 C. & P. 407.
[801]
and footpaths where available. It is likely that the failure to use a footpath would
be considered to be contributory negligence under modern traffic conditions.
Furthermore, a pedestrian is only entitled to expect other road users to exercise
reasonable care. If, therefore, there is a footpath available then a motorist can
expect a pedestrian, who is not crossing the road, to use the footpath. If under
such circumstances a collision occurs a claim made by the pedestrian may fail on
the ground that there was no negligence on the part of the motorist.803 Where a
pedestrian was found lying in the road at night having been struck by a van there
was prima facie evidence of negligence on the part of the van driver.804
10–269 Where there is no footpath, the Highway Code advises pedestrians to walk on
the right-hand side of the road,805 however, it is not necessarily negligent to fail
to do so.806 A driver was negligent when his external wing mirror struck and
injured a pedestrian who had been standing on the pavement’s kerb.807 Indeed,
the Court of Appeal expressed the view that the pedestrian was not guilty of any
contributory negligence, even if she had leaned outwards over the roadway or
had had her back to the traffic, or, even, had gone an inch or two on to the
roadway.
10–270 The Highway Code also advises pedestrians to wear or carry something light
coloured, bright or fluorescent in poor light and to wear something reflective in
darkness.808 Young children should not be out alone on a pavement or road.809
When walking with children adults are advised to walk between the traffic and
the children and to hold their hands firmly.810 Very young children should be
strapped into pushchairs or restrained by reins.811 The ‘‘Green Cross Code’’ is set
out in para.7 of the Highway Code.812 Although the Green Cross Code advises
pedestrians to find a safe place to cross and to use a designated crossing if one
is available, there is no legal duty upon a pedestrian to use such a crossing; a
pedestrian can cross anywhere so long as he takes reasonable care for his own
safety.813 The Highway Code advises that where there are barriers, pedestrians
should only cross at the gaps provided and should not climb over the barriers.814
A failure to comply with the advice in the Green Cross Code to keep looking and
803
See Tidy v Battman [1934] 1 K.B. 319; Scott v McIntosh, 1935 S.C. 1996.
804
Widdowson v Newgate Meat Corp [1998] P.I.Q.R. P138, CA.
805
para.2.
806
Kerley v Downes [1972] R.T.R. 188; Parkinson v Parkinson [1973] R.T.R. 216, CA. See also
Powell v Phillips [1972] 3 All E.R. 864.
807
Chapman v The Post Office [1982] R.T.R. 165, CA.
808
para.3.
809
810
811
812
The basic code reads as follows: ‘‘a. first find a safe place to cross, b. stop just before you get to
the kerb, c. look all around for traffic and listen, d. if traffic is coming let it pass and e. when it is safe,
go straight across the road—do not run.’’ Further advice is given in relation to each section of the
code in para.7 of the Highway Code.
813
Tremaine v Hill [1987] R.T.R. 131, CA.
814
para.9.
[802]
listening for traffic whilst crossing the road has resulted in a finding of
contributory negligence on the part of the injured pedestrian.815
A pedestrian owes a duty to other highway users to move with proper care. 10–271
‘‘When a man steps from the kerb into the roadway, he owes a duty to traffic
which is approaching him with risk of collision to exercise due care.’’816
Accordingly, where a pedestrian stepped out into the path of a motor scooter, so
that the rider fell off his machine and was killed, the pedestrian was liable.817 A
pedestrian, who suffered from attacks of petit mal epilepsy was not negligent
when she stepped off a pavement in a state of automatism and caused an accident,
there being no evidence that she had received medical advice not to go out
alone.818 A pedestrian is obliged to comply with traffic directions given by a
police constable in uniform.819 It is unlawful for a pedestrian to hold on to a
moving vehicle.820
On organised walks, if no path is available the group should keep to the left if 10–272
no footpath is available with lookouts stationed to the front and rear.821 At night
the lookout in front should carry a white light and the lookout to the rear should
carry a red light.822
Pedestrian crossings. There are several types of designated pedestrian 10–273

crossings. ‘‘Zebra’’ crossings are provided for by the Zebra, Pelican and Puffin
Pedestrian Crossings Regulations and General Directions 1997.823 Any driver
approaching a zebra crossing must proceed at such a speed so as to be able to stop
if necessary. By virtue of reg.25 every pedestrian824 within the limits of the
crossing825 has precedence over vehicular traffic. If by the exercise of reasonable
care, the driver can see that there is a pedestrian on the crossing, it is no defence
to prove that, before moving onto the crossing, the pedestrian did not look for the
815
Hurt v Murphy [1971] R.T.R. 186 (20 per cent).
816
Nance v British Columbia Electric Ry [1951] A.C. 601 at 611, per Lord Simon; see article
‘‘Liability of Pedestrians’’ 110 S.J. 934; also, Gilmour’s Curator Bonis v Wynn, The Times, September
28, 1995, OH, Ct. Sess. (claim of pedestrian who suffered permanent brain damage in collision with
car failed, where he had placed himself in the road to throw a stick at the car while it was swerving
to avoid other similar attacks).
817
Barry v McDonald (1966) 110 S.J. 56; Nolan v Marsh Motors and Holzberger [1965] Q.L.R. 490
(the driver of a motorcar does not have to drive in constant expectation that a pedestrian may at any
moment project himself into the path of his car from behind a vehicle in a line of traffic on his right,
which is moving in the opposite direction).
818
Green v Hills (1966) 113 S.J. 385.
819
820
821
822
823
SI 1997/2400.
824
In Crank v Brooks [1980] R.T.R. 441 a person pushing a bicycle over a zebra crossing was a foot
passenger within the meaning of the since revoked ‘‘Zebra’’ Pedestrian Crossing Regulations 1971
(SI 1971/1524).
825
References to the limits of a crossing are to the striped area and not to the area bounded by the
zig-zag lines: Moulder v Neville [1974] R.T.R. 53.
[803]
presence of traffic.826 Where there is an island in the middle of a zebra crossing

each section should be treated as a separate crossing.827
10–274 ‘‘Pelican’’ crossings828 are crossings where the pedestrian can press a button to
operate traffic lights. A driver is prohibited from driving on to the crossing when
the lights are showing red.829 A pedestrian also has precedence over vehicles
while the light is flashing amber.830 There are usually two illuminated figures to
indicate to pedestrians when they should cross. When the red figure is
illuminated it is a warning to pedestrians that in the interests of safety they should
not cross the carriageway.831 A steadily illuminated green figure indicates that
pedestrians may begin to cross the carriageway and that vehicles may not enter
the crossing.832 A flashing illuminated green figure indicates to pedestrians, who
are already crossing the carriageway, that they may continue to do so and would
have precedence over any vehicle.833 A flashing illuminated green figure
indicates to pedestrians, who have not started to cross, that they should not, in the
interests of safety, begin to cross.834 A ‘‘puffin’’ crossing is similar to a pelican
crossing except that there are no flashing amber and flashing green figure phases.
A ‘‘toucan’’ crossing is similar to a puffin crossing except that there is a facility
for cyclists to ride across together with pedestrians. At all crossings pedestrians
should check that traffic has stopped before starting to cross.835
10–275 The duty created by the regulations is not absolute. In Burns v Bidder,836 the
Divisional Court held that there was no breach where the driver who failed to
accord precedence to a pedestrian did so solely because his control of the vehicle
was removed by the occurrence of an event beyond his possible or reasonable
control and in respect of which he was in no way at fault. A latent defect in the
vehicle’s braking system may therefore be a good defence. If a pedestrian
suddenly steps from the footpath on to a crossing, just as a vehicle is about to
enter the same area, so that the driver is given no chance of avoiding a collision,
there may be no breach of statutory duty, provided that all reasonable care has
826
Bailey v Geddes [1938] 1 K.B. 156. But in so far as this case appeared to decide that when a
pedestrian on a crossing was struck by a motor vehicle he could not be guilty of contributory
negligence it has not been followed: see the cases cited at n.841, below.
827
828
See the Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997
(SI 1997/2400).
829
Zebra, Pelican and Puffin Pedestrian Crossings Regulations and General Directions 1997 (SI
1997/2400) reg.12.
830
1997/2400) reg.26.
831
1997/2400) reg.15(1)(a).
832
1997/2400) reg.15(1)(b).
833
1997/2400) reg.15(2)(a).
834
1997/2400) reg.15(2)(b).
835
836
[1967] 2 Q.B. 227; Megaw J. in Kozimor v Adey (1962) 106 S.J. 431 took a stricter view. See also
Maynard v Rogers (1970) 114 S.J. 320.
[804]
been taken by the driver, having regard in particular to the fact that a crossing is
present. In terms of civil liability, the driver could possibly avoid all responsibil-
ity,837 although more usually it is shared.838 Where a vehicle courteously stopped
in front of a crossing for the purpose of giving way to a pedestrian who had not
yet moved forward on to it, such vehicle was ‘‘stopped for the purpose of
complying with regulation 8’’, within the meaning of reg.10(b), so that other
drivers were at fault in trying to overtake it.839
The obligation to take care at a crossing does not fall entirely upon the driver. 10–276
The Highway Code reminds pedestrians to allow oncoming vehicles time both to
see them and to react to their presence before they step into the road.840 Where
the view of the driver of a bus approaching a crossing was obscured by a taxi, so
that he was unable to see a pedestrian upon it with whom he collided, it was held
that the driver was in breach of the regulations and liable. However, the
pedestrian was guilty of contributory negligence in crossing without first seeing
that traffic lights were in her favour.841
Where a pedestrian seeks to cross a road either near to or at places other than 10–277
a pedestrian crossing, he or she has no specific precedence and the responsibility
for causing an accident more often than not will be shared between the pedestrian
and the vehicle driver.842 Nevertheless, the court has held that a pedestrian may
cross a road at any place, provided that reasonable care is taken. There is no
obligation to cross the road only at an adjacent or nearby light-controlled
crossing.843
Pedestrians are warned not to cross directly in front of or behind a bus and to 10–278
wait until it has moved off.844 Tramways may run through pedestrian areas. Their
837
Chisholm v London Passenger Transport Board [1939] 1 K.B. 426; Sparks v Edward Ash Ltd
[1943] K.B. 223, followed in Mignogna v Giaccio (1975) 6 A.L.R. 502.
838
e.g. Maynard v Rogers (1970) S.J. 320 (pedestrian two-thirds; motorist one-third); Mulligan v
Holmes [1971] R.T.R. 179 and Clifford v Drymond [1976] R.T.R. 134, CA (pedestrians 20 per cent
to blame). For the liability of a school crossing attendant who allowed a child to run into the road,
see Toole v Newport Corp (Third Party) [1971] R.T.R. 479.
839
Gullen v Ford; Prowse v Clarke [1975] 1 W.L.R. 335.
840
See para.18–20.
841
L.P.T.B. v Upson [1949] A.C. 155 (the driver and the pedestrian were held equally to blame). See
also Gibbons v Kahl [1956] 1 Q.B. 59; Levine v Morris [1970] 1 W.L.R. 71 and Goddard v
Greenwood [2003] R.T.R. 10, CA (joggers on a pedestrian crossing controlled by lights were 80 per
cent to blame for an accident in which they were struck by the defendant’s vehicle, which drove onto
the crossing as the lights changed, although he was unable to see beyond a stationary lorry).
842
In addition to examples involving the use of zebra crossings, there are Hurt v Murphy [1971]
R.T.R. 186 (deceased, who failed to continue to look to her left whilst crossing over a straight but 30
mph speed restricted road, was held one-one fifth to blame); Williams v Needham [1972] R.T.R. 387
(pedestrian who stepped out and began to cross road, never having looked to her right, was held two-
thirds to blame); Powell v Phillips [1972] 3 All E.R. 864 (no blame on pedestrian); Moore v Poyner
[1975] R.T.R. 127 (no blame on motorist); Liddell v Middleton [1996] P.I.Q.R. P36, CA (motorist and
pedestrian equally to blame).
843
Tremayne v Hill [1987] R.T.R. 131, CA.
844
Tremayne v Hill [1987] R.T.R. 131, CA, para.32.
[805]
path may be marked out by shallow kerbs, changes in the paving or other road
surface, white lines or yellow dots. Pedestrians should cross at designated
crossings where available.845
10–279 Horses. There is no absolute duty imposed on the rider of a horse to prevent
it getting out of control, whilst it is being ridden properly along the highway.
Where a horse shies, when a motorist was overtaking it, it is incumbent upon the
rider to provide an explanation for the horse’s sudden movement, sufficiently to
negative any inferences of negligence.846 Where a horse is being ridden along a
narrow road, the driver of a vehicle must exercise great caution in passing it, his
duty being to slow down and to give it a wide berth. Should this be impracticable,
because of another vehicle’s approach, then he should stop and wait, before
attempting to pass the animal.847
10–280 At para.215, the Highway Code provides the following guidance:
‘‘Be particularly careful of horse riders and horse drawn vehicles, especially when
overtaking, Always pass wide and slowly. Horse riders are often children, so take extra
care and remember riders may ride in double file when escorting a young or
inexperienced horse or rider. Look out for horse riders’ and horse drivers’ signals and
heed a request to slow down or stop. Treat all horses as a potential hazard; they can be
unpredictable, despite the efforts of their rider/driver.’’
10–281 Led or herded animals. The rule of the road in relation to horses or other
animals, whether they are led, driven, or have a rider, is the same, that is, to keep
to the left.848 It is the duty of a person, leading or driving an animal or a number
of animals along the highway, to take reasonable care that they do not cause
damage either to other users of the highway or to property adjoining it.849 If cattle
are driven along the highway, it is the duty of the owner to keep them under
proper control and to employ an adequate number of persons for that purpose.850
Accordingly, where a drover failed to keep a heifer under proper control, so that
it tossed a woman who was walking along the pavement, the owner was held
liable.851 Likewise where a car collided with a cow at night and the drover had
not shown a light or shouted or otherwise given warning.852 The Highway Code
provides at para.58 that if animals are herded after dark, the herder should wear
845
Tremayne v Hill [1987] R.T.R. 131, CA, para.33.
846
Haimes v Watson [1981] R.T.R. 90.
847
Burns v Ellicot (1969) 113 S.J. 490; Carryfast v Hack [1981] R.T.R. 464.
848
For the old common law rule that the horse should be led along the right-hand or offside of the
road, see early editions of Charlesworth on Negligence.
849
Deen v Davies [1935] 2 K.B. 282.
850
It was not negligent to fail to provide an extra drover on the crest of a rise in an undulating country
road, along which livestock were being driven, in order to warn approaching traffic: Graham v
Crawford [1964] N.Z.L.R. 668. See also para.58 of the Highway Code.
851
Pinn v Rew (1916) 32 T.L.R. 451.
852
Turnbull v Wieland (1916) 33 T.L.R. 143. Cf. Ludlam v W. E. Peel & Son (1939) 83 S.J. 832,
where the owner succeeded.
[806]
reflective clothing and ensure that white lights are carried to the front and red
lights to the rear of the herd.853
Motorists are recommended to travel slowly past animals in the highway, to 10–282
give plenty of room and be prepared to stop, if necessary. Care should be taken
not to frighten animals by sounding the horn or revving up the engine. Motorists
should look out for animals being led or ridden and take extra care at left-hand
bends and on narrow country roads. If a road is blocked by a herd of animals a
motorist is advised to stop and switch off the engine of the vehicle until the herd
has left the road.854
Dogs on the highway. A collision with a dog in the highway imposes no 10–283
liability on the owner of the dog, unless the owner has been negligent in allowing
the dog to be loose.855 Even before the passing of the Animals Act 1971,856 it was
a general principle of English law (subject to the exception of immunity, when it
arose) that a person was liable for injury or damage caused by his animal, as a
result of his failure to take reasonable care. As Lord Atkin said:
‘‘It is also true that, quite apart from the liability imposed upon the owner of animals
or the person having control of them by reason of knowledge of their propensities, there
is the ordinary duty of a person to take care either that his animal or his chattel is not
put to such a use as is likely to injure his neighbour—the ordinary duty to take care in
the cases put upon negligence.’’857
In Gomberg v Smith,858 after dark, a shopkeeper came out of his shop, 10–284
adjoining a highway in a built-up area, with his St Bernard dog, which was not
on a lead. Suddenly it ran across the road, hotly pursued by its owner, before
turning back and colliding with a van, which was travelling slowly and on its
correct side of the road. The dog owner was liable in negligence for the damage
suffered, the rules applying to the escape of animals on to a highway,859 being
inapplicable where the dog was present on the highway as a result of deliberate
853
In Andrews v Watts [1971] R.T.R. 484, a cattle owner, who had herded cattle on a road at night,
was guilty of negligence in failing to equip his drovers with some form of lamp or a reflector, in
accordance with the Highway Code. See too Turner v Coates [1917] 1 K.B. 670 (a colt allowed to
travel loose with a mare at night running into the path of a cyclist; liability was established).
854
Highway Code para. 214.
855
For the position at common law, see Gibb v Comerford [1942] I.R. 295; Milligan v Henderson,
1915 S.C. 1030; Hines v Tousley (1926) 70 S.J. 732. Only in exceptional circumstances was there
negligence in allowing a dog to be loose on the highway, as in Pitcher v Martin [1937] 2 All E.R.
918 (dog on lead broke away from person leading it and entangled pedestrians in the lead—owner
liable). See also Jones v Owen (1871) 24 L.T.(N.S.) 587 (coupled greyhounds injured pedestrian—
owner liable). In Ellis v Johnstone [1963] 2 Q.B. 80 at Donovan L.J. referred to the fact that if a dog
were known to shoot out of a gate on to the highway more like a missile it would be negligent in
allowing it so to do.
856
See para.10–287, below.
857
Fardon v Harcourt-Rivington (1932) 48 T.L.R. 215, 217. The position at common law has not
been altered in this regard at all: Draper v Hodder [1972] 2 A.B. 556, CA (a pack of Jack Russell
terrier puppies made a sudden dash to some adjacent premises, attacked and savaged the three-year-
old claimant).
858
[1963] 1 Q.B. 25.
859
But, see now the provisions of the Animals Act 1971,s.8, para.10–287, below.
[807]
action by the owner. His failure to control the dog was a breach of the duty which
he owed to other highway users.
10–285 Further, a person, who causes or permits a dog to be on a designated road, that
is a road specified by an order made by the local authority in whose area the road
is situated, without it being held on a lead commits an offence.860 In the event of
a motorist having to take sudden action to avoid hitting a dog which had run
across his path, it was held that he was not liable for the injuries sustained by his
passenger, since he had acted with reasonable care in the circumstances.861 The
Highway Code provides at para.42 that dogs should not be let out on their own
and should be kept on a short lead when being walked on or near a road or a path
shared with cyclists. Dogs and other animals should be suitably restrained when
travelling in vehicles so that they cannot distract the driver and cannot cause
injury if the vehicle is caused to stop quickly.862 A dog should not be let out of
a vehicle on to the road unless on a lead.
10–286 Common law relating to straying livestock. If cattle863 which were being
driven along the highway strayed from the highway into a shop or other property
adjoining the highway, it was evidence of negligence that they were not being
kept under proper control, whether because of an inadequate number of persons
being employed to drive them or from carelessness on the part of those
employed.864 On the other hand, if there was no negligence on the part of the
driver, there was no liability for the trespass of the animal in entering property
adjoining the highway. So, where an ox was being driven through the streets of
a country town and, without any negligence on the part of those in charge of it,
entered a shop which adjoined the street and did damage, the owner was held not
to be liable.865
10–287 The Animals Act 1971.866 The Act is dealt with in Chapter 14, below. Briefly
the common law rules, which excluded or restricted a person’s duty to take care
to avoid damage being caused by animals straying on the highway,867 were
abrogated by s.8(1). The effect of this section was to remove an exception to the
common law, laid down in Searle v Wallbank,868 namely that there was no duty,
in the absence of special circumstances, relating to the behaviour of an animal
860
Road Traffic Act 1988 s.27(1).
861
Parkinson v Liverpool Corp [1950] 1 All E.R. 367, applied in Wooller v London Transport Board
[1976] R.T.R. 206, CA.
862
863
For the state of the law after October 1, 1971, see the effect of the Animals Act 1971, para.10–292,
below.
864
See Gayler and Pope Ltd v Davies & Son [1924] 2 K.B. 75 at 87. See Highway Code, para.152
and para.10–281, above.
865
Tillett v Ward (1882) 10 Q.B.D. 17. See now s.5(5) of the Animals Act 1971 and Ch.14, paras
14–84 to 14–85, below.
866
This Act came into operation on October 1, 1971 by virtue of s.13(3), and gave effect with certain
modifications to the recommendations contained in the Law Commission’s report on Civil Liability
for Animals. See generally Ch.14.
867
For the common law rules which pre-date the Animals Act 1971, see Charlesworth and Percy on
Negligence (9th edn, 1997; Ch.9, paras 9–282 to 9–285).
868
[1947] A.C. 341.
[808]
known to the landowner, to fence or maintain existing fences on land adjoining

highways, thus to prevent animals straying on to them. Following the Act
damage which results from animals straying on to the highways renders their
keeper liable to the extent that the damage was caused by his failure to take
reasonable care. Section 8(2) makes special provision for the occupiers of
unfenced land.
Defences. The general defences available in a negligence action are dealt with 10–288
in Chapter 4, above. In the present section it will have been observed that on a
number of occasions acts or omissions of a highway user have been described
‘‘as evidence of negligence’’. This is to indicate that on proof of the same the
court may (not must) come to the conclusion that there is negligence on the part
of the person responsible. Such negligence, if so found, is not necessarily
conclusive of the issue of responsibility for the damage, because it may be shown
that there was contributory negligence on the part of the claimant, in which event
the damages have to be apportioned,869 or that the negligence of a third party was
the real cause of the damage. Evidence of negligence may also be rebutted, albeit
rarely, by proving inevitable accident.870
Suing more than one defendant. A collision may be the result of the 10–289
negligence of more than one person, in which event an action can be brought
against them all jointly, severally, and in the alternative. Judgment may then be
given against either one or more but no more than the amount of damages
awarded can be recovered by the successful claimant. If judgment has been
obtained against one party whose negligence was responsible for the collision, he
may obtain contribution from any other party whose negligence also was
responsible.871 If more than one defendant has been joined and judgment
obtained against one of them only, the costs payable by the claimant to the
successful defendants may be ordered to be included in the costs, which are
payable by the unsuccessful defendant to the claimant. This is so, of course,
provided that it was reasonable for the claimant to join the successful defendants
in the first place.872 If the defendants before or at the trial attempt to throw the
responsibility for the collision upon each other, it will usually be held that the
claimant was reasonable in joining them all in the one action.
869
Ch.4, paras 4–03 to 4–72, above.
870
Ch.4, paras 4–128 to 4–136, above.
871
See the provisions of the Civil Liability (Contribution) Act 1978. See also Ch.3, paras 3–81 to
3–97, above.
872
Bullock v L.G.O. Ltd [1907] 1 K.B. 264.
[809]

Chapter 10 - Highways and Transport

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Chapter 10 - Highways and Transport

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HIGHWAYS AND TRANSPORT

1. Highways .................................................................................................................... 10–01

(A) Maintenance of the highway

Introduction. At common law no action lay if a highway, which was 10–01

What amounts to a dangerous hazard depends on the circumstances of the 10–04

10–08 Illustrations of liability for transient hazards. Liability was established

Land adjacent to the highway. A highway authority’s statutory duty to 10–09

Road marks.36 In Gorringe v Calderdale Metropolitan Borough Council,37 10–10

In Thompson v Hampshire County Council,39 the claimant was walking in 10–11

(b) the standard of maintenance appropriate to a highway;

out of a breach of a highway authority’s duties under s.39. No action in

(B) Dangers on the Highway

Duties in respect of a highway. It is a public nuisance46 to do any act on a 10–16

Illustrations of liability for obstructions. Where a local authority placed a 10–17

10–24 Other hazards caused by excavation. If a dangerous inequality in the

Structure in existence before dedication of highway. At common law, if a 10–29

Materials or equipment placed on highway. Even before the Highways 10–41

10–44 If a drinking-fountain or similar structure is maintained in the highway,

Lights on dangerous objects. Where a local authority, pursuant to statutory 10–46

particular locality.149 Conversely, where there has been no such vandalism

(C) Dangers adjoining the highway

10–52 Liability for dangerous buildings adjoining highway. Buildings adjoining

to users of the highway. Such buildings, if dangerous, constitute a public

Dangerous premises. If premises by the side of the highway are so 10–58

Dangerous excavations adjoining highway. The occupier of land is liable if 10–59

10–63 Dangers caused by diversion of highway. When a highway is diverted,

10–74 Occupier continuing a danger, created by third party. Although a third

(D) Miscellaneous dangers in the highway

10–75 Dangerous machines left in highway. Liability in respect of vehicles left

10–79 However, in a somewhat similar case, when a pedestrian slipped on the

injury is expressly authorised by statute, or is, physically speaking, the necessary

Introduction. A person, who undertakes, either for reward or gratuitously, to 10–83

the carriage for reward of persons or goods, or by virtue of any contract of

moveable structure, including any vessel, vehicle or aircraft, to his visitors.259

So far as the duty to warn a visitor of defects or dangers is concerned, it is 10–89

Trespassing passenger. A trespasser has been defined by Lord Dunedin as 10–95

Passenger riding with consent of employee. Where an employee of a carrier, 10–97

Injury caused by a stranger to the contract of carriage. Where a carrier 10–98

vehicles.280 This is purely a contractual duty. Where there is no contract a carrier

10–101 Illustrations of a prima facie case of negligence. When either a collision

Overcrowding of carriages. Railway authorities are bound to provide 10–102

Joining or leaving a train. Railway authorities are bound to provide 10–108

10–110 Opening the door of the carriage is an invitation to alight.327 Where, in

Duty to visitors. Persons resorting to railway premises, whether as intending 10–114

10–124 Embankments and bridges. Embankments and bridges must be maintained

10–129 Liability was established: where a railway gatekeeper indicated to a carman

foot or by vehicle.393 An omission to whistle or otherwise to give warning of the

Contributory negligence on crossings. Not surprisingly, a person who 10–132

Private accommodation crossings. When a train is approaching an accom- 10–133

Where a chargeman examiner was examining a stationary damaged wagon, 10–138

International carriage by railways. The Convention concerning Inter- 10–139

carriage by rail: the Uniform Rules Concerning the Contract of International

(C) Road Carriage

10–141 Collisions. Liability for a collision on the highway depends on proof of

10–142 Passengers struck by external objects. The fact of a collision between a

10–143 Defective apparatus. When a passenger in a tram was injured through a

10–146 It does not amount to contributory negligence on the part of a passenger to

10–147 Boarding and alighting from vehicle in motion. If a passenger attempts to

10–150 Statutory duties. By reg.5 of the Public Service Vehicles (Conduct of

a conductor is obliged to take all reasonable precautions for the safety of

Contracts restricting liability. A contract restricting liability in respect of the 10–152

Hackney carriage passengers. A person who accepts another as a passenger 10–153

vehicle. A taxi driver owes no special duty of care towards an inebriated