The result may well be right, but it seems to me the reasoning takes a wrong turning in treating this as a case about occupier’s liability rather than the liability of a highway authority: contrary to para [26], the duty contended for should turn on the special position of a highway authority.  This case squarely raises an issue as to the application of Stovin: are there ever any circumstances in which a highway authority does owe a duty of care to control hazards on land adjoining the highway?  If there are some such circumstances, then in the same sort of circumstances a highway authority must owe a duty of care to control hazards on adjoining land which it has itself acquired for the very purpose of carrying out improvement works (presumably improvement works for the benefit of the highway). Conversely, if a highway authority can never owe such a duty, then I cannot see how a private landowner could.

 

Hanna

________________________________________________

Hanna Wilberg BA LLB (Hons) (Otago), BCL MPhil (Oxford)

Associate Professor; Associate Dean (Equity)

Faculty of Law, University of Auckland
Private Bag 92019,  Auckland 1142, NZ

h.wilberg@auckland.ac.nz

 

http://www.law.auckland.ac.nz/uoa/os-hanna-wilberg

SSRN Author Page: http://ssrn.com/author=1602380

New publications:

H Wilberg “Interrogating ‘Absolute Discretion’: Are NZ’s Parliament and Courts Compromising the Rule of Law?” (2017) 45 Federal Law Review 541

H Wilberg “Interpretive Presumptions Assessed against Legislators’ Understanding” in M Elliott, JNE Varuhas & S Wilson-Stark (eds) The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, Oxford, 2018) 193

 

Please note that I check emails only around twice daily, and may take some days to reply to your emails.

 

 

On May 4, 2018, at 4:33 PM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:

This seems dead wrong to me.  The law of negligence restricts property

rights in all sorts of ways and for very good reasons.

Subject to proving foreseeability i.e. that it was reasonably

foreseeable that the high vedgetation would cause an accident, I think

this action should have succeeded.

On 5/4/18, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk> wrote:

The court dealt with that: they regarded the "near the highway" cases as

cases where there was something physically affecting the highway itself,

such as smoke blowing over it from a fire nearby. The danger on the

highway, in other words, had to be physical, not simply a matter

abstractly reducing the safety road users might otherwise enjoy.

Andrew

On 04/05/18 17:55, Jason W Neyers wrote:

I wonder how this result squares with the older cases which claimed

that it was a public nuisance to create a danger on or /near/ a public

highway.

*esig-law*

*Jason Neyers*

Professor of Law

Faculty of Law

Western University

Law Building Rm 26

e. jneyers@uwo.ca <mailto:jneyers@uwo.ca>

t. 519.661.2111 (x88435)

*From:*Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>

*Sent:* May 4, 2018 10:26 AM

*To:* obligations@uwo.ca

*Subject:* off-highway negligence

A nice case today about occupiers' non-liability. If I own land next

to the highway and do something with it that restricts visibility on

the highway, do I owe a duty of care to highway users? No. Highway

users take the view (or lack of it) next to the highway as they find

it. So a Welsh government was not liable for planting high vegetation

next to the highway that caused a car to hit a cyclist. Presumably

this also would cover, for example, the person who put up a picture of

an attractive naked woman on his house that, like Zuleika Dobson,

fatally distracted passers-by at a critical time.

See Sumner v Colborne [2018] EWCA Civ 1006

<http://www.bailii.org/ew/cases/EWCA/Civ/2018/1006.html>

Odd though it may seem, I suspect this is right. I don't see why

landowners' property rights should be restricted where they don't

physically impinge on non-visitors' space: in the same way that

occupiers don't owe any duty to keep those on neighbouring land safe

-- Armstrong v Keepmoat Homes Ltd, QBD (Newcastle District Registry),

unreported 3 February 2012.

Andrew

--

--

*Andrew Tettenborn*

/Professor of Commercial Law, Swansea University/

Institute for International Shipping and Trade Law

School of Law, University of Swansea

Richard Price Building

Singleton Park

SWANSEA SA2 8PP

Phone 01792-602724 / (int) +44-1792-602724

Cellphone 07472-708527 / (int) +44-7472-708527

Fax 01792-295855 / (int) +44-1792-295855

    

*Andrew Tettenborn*

/Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol

Ysgol y Gyfraith, Prifysgol Abertawe

Adeilad Richard Price

Parc Singleton

ABERTAWE SA2 8PP

Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724

Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527

Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

ISTL <http://www.swansea.ac.uk/law/istl/>

See us on Twitter:@swansea_dst <https://twitter.com/swansea_dst>

Read the IISTL Blog: iistl.wordpress.com <https://iistl.wordpress.com/>

Read Andrew's other writinghere

<https://www.conservativewoman.co.uk/author/andrewtetterborn/>

/Disclaimer: This email (including any attachments) is for the use of

the intended recipient only and may contain confidential information

and/or copyright material. If you are not the intended recipient,

please notify the sender immediately and delete this email and all

copies from your system. Any unauthorized use, disclosure,

reproduction, copying, distribution, or other form of unauthorized

dissemination of the contents is expressly prohibited./

--

--

*Andrew Tettenborn*

/Professor of Commercial Law, Swansea University/

Institute for International Shipping and Trade Law

School of Law, University of Swansea

Richard Price Building

Singleton Park

SWANSEA SA2 8PP

Phone 01792-602724 / (int) +44-1792-602724

Cellphone 07472-708527 / (int) +44-7472-708527

Fax 01792-295855 / (int) +44-1792-295855

    *Andrew Tettenborn*

/Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe/

Sefydliad y Gyfraith Llongau a Masnach Ryngwladol

Ysgol y Gyfraith, Prifysgol Abertawe

Adeilad Richard Price

Parc Singleton

ABERTAWE SA2 8PP

Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724

Ffôn symudol 07472-708527 / (rhyngwladol) +44-7472-708527

Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

ISTL <http://www.swansea.ac.uk/law/istl/>

See us on Twitter:@swansea_dst <https://twitter.com/swansea_dst>

Read the IISTL Blog: iistl.wordpress.com <https://iistl.wordpress.com/>

Read Andrew's other writinghere

<https://www.conservativewoman.co.uk/author/andrewtetterborn/>

/Disclaimer: This email (including any attachments) is for the use of

the intended recipient only and may contain confidential information

and/or copyright material. If you are not the intended recipient, please

notify the sender immediately and delete this email and all copies from

your system. Any unauthorized use, disclosure, reproduction, copying,

distribution, or other form of unauthorized dissemination of the

contents is expressly prohibited./