Rogers v National Assembly for Wales

LORD JUSTICE JUDGE: At about 8.30 in the evening on 19 September 1997 a road traffic accident occurred on the busy A447 road between Red Roses and Llanddowror in Camarthen when two cars collided. Stephen Rogers, an experienced driver, was driving his Vauxhall Astra towards Llanddowror with his wife, Mandy, as a frontseat passenger. It collided with a Rover Montego being driven in the opposite direction by Richard Shepherd. As a result of the accident Mrs Rogers was killed and Mr Rogers was injured.

Mr Rogers took proceedings against the Highway Authority, formerly the Secretary of State for Wales, whose responsibility for all material purposes subsequently passed to the National Assembly of Wales (the "National Assembly"). He alleged that the accident occurred as a result of the defective condition of the road surface and that the Highway Authority was in breach of its duty under section 41 of the Highways Act 1980. The National Assembly denied that there was any defect in the road at the point where the accident occurred or that they or their predecessors were in breach of the duty imposed on them by section 41. They also relied on the defence provided by section 58 of the Act.

The issue of liability was heard before Andrew Smith J. On 25 November 2002 at Cardiff he held that liability had been established. He rejected allegations of contributory negligence against Mr Rogers. This is an appeal by the National Assembly against his decision on the issue of primary liability. The allegations of contributory negligence are not pursued.

I gratefully adopt Andrew Smith J's description of the scene:

The judge accepted that the camber on the road was within normal limits, and that there was no major unevenness of the surface. He also accepted that the road camber or surface, or both, caused vehicles driving east (that is in the direction Mr Rogers was driving) to lean to the left, particularly at the point where the road passed over the culvert. As a result, minor steering adjustments were required of cars and heavy vehicles using this part of the road.

At the time of the accident it was just getting dark. The judge found that the road surface was "damp". There had been rain earlier in the day and the road was drying out, but the atmosphere was moist, and there was moisture "like a heavy dew" on the road surface. Although the road was "damp, or wet", there was no standing water. The judge found that the damp was sufficient substantially to reduce the co- efficient of friction between the road and the tyre travelling along it.

As a result of his injuries Mr Rogers had no recollection of the journey after he had bought some petrol in Red Roses, from where he drove away at a leisurely speed, using his wipers to clear the windscreen. The impact occurred when Mr Rogers' car "crossed the centre of the carriageway directly into Mr Shepherd's path". It was not suggested that his car was unroadworthy or that a sudden mechanical defect had occurred. Mr Shepherd was blameless. Although he braked, he had no chance of avoiding the collision, which occurred between the front of his car and the nearside of Mr Rogers' Astra.

The precise point of impact, but perhaps more accurately the point at which Mr Rogers' car started to cross the road, is not in dispute. The issue is whether this occurred on a straight stretch of road or near or approaching a bend. The significance of the dispute in this context is obvious. If the road was straight, Mr Rogers would not have been required to do more than keep his car running along in a straight line, and nothing untoward by way of steering would be needed. There is a second feature arising from this issue which is relied on by the appellant. There is something of a history of accidents on this road. I shall come to that history in due course. The appellant suggests that the judge overemphasised this history by failing sufficiently to appreciate that the other accidents occurred on bends, whereas this one did not.

There was a good deal of dispute in the written skeleton arguments, and so we have seen photographs of the scene taken immediately after the accident, together with photographs taken on a later occasion in daylight. In my view, however the road is described, at the point of the accident it is not straight. A careful driver would have to adjust his steering as he was coming towards and into the right- hand bend described by the judge. He would also of course have to allow for possible problems caused by the camber, and there is a suggestion of unevenness in the road just at about the point of impact.

The judge examined a number of criticisms made of Mr Rogers' driving, and rejected them. After considering the evidence of eyewitnesses, engineering evidence and evidence about the condition of the road surface, he expressly found that the speed was not inappropriate for the prevailing road conditions, and that Mr Rogers was keeping a reasonable lookout for traffic coming in the opposite direction. As described by witnesses in their different ways, Mr Rogers' car veered "extremely suddenly", or suddenly "veered into", or suddenly "cut across" into the opposite carriageway. After the accident a police officer who attended the scene observed skid marks in Mr Shepherd's carriageway, which reflected his attempts to stop. In the same carriageway, there was also a faint tyre skid mark, 2.12 metres in length, which began at the point where the central marking changed to a double white line. No skid marks were observed in the other carriageway. Tests were carried out at the scene, approximately an hour after the accident happened, using a Skidman Deceleratometer. This device measures speed, but it also gives readings about friction between the road surface and tyres. The readings, as the judge accepted, were "unusually low", and indeed the lowest reading found by the accident investigation officer, using the equipment since 1991.

Andrew Smith J continued his analysis of the evidence on this issue by reminding himself that there was no evidence of any skid marks observed in the carriageway from which Mr Rogers had come. He nevertheless concluded:

The National Assembly was held liable to him on the basis that the accident was caused by the low skid resistance of the road:

Having reached that conclusion, the judge examined whether the National Assembly could take advantage of the defence provided by section 58 of the 1980 Act. He concluded that this defence had not been made out. He held that the dangerous condition of the road was "because the Authority had not carried out works to repair the road, specifically because they had not at the time of the accident carried out the works of the kind that were started within a week afterwards". It is perhaps worthy of note at this stage that the judge expressed himself "conscious" that he had to reach his decision in relation to the defence under section 58 on the basis of what he described as "scanty evidence". He indicated that that was because the defendants did not adduce evidence from anyone more senior in their hierarchy than a Mr Williams (to whom I shall come in a moment) and "the important decisions were taken by persons senior to him".

Before examining the issues raised in the appeal the statutory context must be briefly summarised. Section 41(1) of the 1988 Act imposes a duty on the Highway Authority to "maintain the highway". Section 329(1) defines "maintenance" to include repair. The standard of maintenance or repair required will render the road "reasonably passable for ordinary traffic of the neighbourhood at all seasons of the year without danger caused by its physical condition." By section 58(1) of the Act, liability for breach of the duty imposed under section 41(1) is avoided if the Highway Authority proves 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 for traffic". When considering all the circumstances, the court is required to have regard to the following matters in particular:

The essential issues in this appeal are whether the judge was entitled to find that the accident occurred because the road surface was in a condition dangerous to vehicles, and if so, whether, notwithstanding the statutory defence, the Highway Authority was to be held liable. On the first aspect of the appeal, Mr Jarman QC in his written grounds of appeal and in his oral submissions before us this morning, criticised a number of findings made by the judge, and in particular in relation to the road surface, his conclusions first, that the condition of the road surface caused the accident; and second, that the skid resistance on the road surface was so low as to represent a danger to ordinary traffic. His premise was that the judge misunderstood the evidence of Mr Rowe about the unevenness of the road surface and the consequent need for voluntary and sudden action, and that he attributed too much significance to the history of other accidents on the road which had taken place before the one with which we are concerned. If these errors had not been made the inferences that the accident resulted from low skid resistance on the road surface could not and would not have been drawn. Mr Jarman further argued that even if low skid resistance had caused the accident it did not follow that the road constituted a danger for the purposes of section 41(1) of the Act as explained in the authorities.

The problem with these contentions is easily identified. Assuming that the passages in the judgment to which I have referred justify Mr Jarman's premise, the simple fact is that Mr Rogers' car did cross the centre of the road at a time when, on the judge's findings, it was being driven carefully, at a reasonable speed. No one - and there were eyewitnesses - saw anything which might have caused Mr Rogers to steer or veer fairly violently to his right- hand side. There was no evidence to suggest that some sudden, unexpected fault had developed in the car. There was evidence that the road surface, particularly when wet, was liable to result in skidding. Indeed, one of the arguments made in favour of the Highway Authority is that a programme for resurfacing the road, to reduce the known danger of skidding, had been postponed because of weather conditions and so the necessary resurfacing work did not start until shortly after the present accident. In my judgment the judge, after a careful examination of the evidence, including the history of accidents after March, was entitled to make the findings that he did. On those findings the most probable explanation for what would otherwise have been an inexplicable manoeuvre by an experienced driver was that the accident did indeed arise from a wet and dangerous road surface. More important, although I appreciate the careful argument developed before us by Mr Jarman, I can see no possible basis for this court interfering with the conclusion based on the judge's assessment of the relevant evidence and facts.

I must now consider section 58 of the Act, and the Highway Authority's criticisms of the findings that it had failed to establish the care required to secure that the road surface was not dangerous, by failing to rectify whatever problems with the road surface should have been or were apparent by the date of the accident. In written submissions it was argued that the judge overlooked the careful arrangements to investigate the site, over- emphasised the number of previous accidents on the relevant stretch of the road, particularly when set against the many journeys completed without incident, failed to focus on the precise geography of the road at the location of those previous accidents and ignored the practical problems of arranging for resurfacing of a main road within the timescale with which this case is concerned. Particular concern was expressed that the judge's failure in his judgment to refer to the Design Manual for Roads and Bridges HD28/94, Volume 7, section 3, which is specifically concerned with Skidding Resistance.

We were also informed that counsel's researches had revealed no previous reported case where a Highway Authority had been held liable in respect of a below level skid resistance on a road surface. It was said that the implications for highway authorities of this judgment were serious and far- reaching, particularly because, as we shall see, the accident occurred on a stretch of road which had been resurfaced just over two years previously. This is the appropriate point in the judgment to emphasise that our decision in this appeal does not raise any point of principle at all. It is, as the judge's findings were, fact- specific, and evidence- specific to this road and this particular accident. Anyone reading the judgment at a later date will also note that the judge was troubled, as already recorded, by the absence of detailed evidence from the Highway Authority which might support and prove the defence under section 58. If another similar case were to arise I should anticipate at least the possibility that the evidence by the Highway Authority might go rather further than it did here.

In reaching his conclusion in this case Andrew Smith J carefully considered the history of this particular stretch of the A447 which was resurfaced between 18 and 20 July 1995. He was right to do so. The outcome largely depended on his conclusions about the timing of a number of critical events. His analysis of the relevant evidence provides the framework for the narrative which follows.

The Highway Authority called Mr Williams, the network engineer responsible for this stretch of the A447, as its main witness of fact. His senior management was based in Camarthen at the Welsh Wales Trunk Road Agency ("WWTRA"). WWTRA works with the Highways Directorate of the Welsh Office based in Cardiff. Mr Williams is not the senior employee of WWTRA. No more senior employee was called. The judge noted that during Mr Williams' evidence it became apparent that decisions "about the work to be done on the road were in the hands of more senior management, and he was not able fully to explain how and why some decisions were taken". I do not read the judge's observation as amounting to any direct or personal criticism of Mr Williams whatever. It simply means that he did not have the evidence from those of senior management who would have been able fully to explain the decisions.

Some ten months after the resurfacing process was completed in May 1996 routine tests known as SCRIM tests (or sideways force routine investigation machine tests) were carried out by contractors on behalf of the Highway Authority. The purpose of these tests was to identify the road surfaces which needed further investigation to establish whether remedial work to improve skid resistance was required. The tests provide readings of a sideways force co- efficient on wet surfaces. Generally speaking, this is done by measuring the skid resistance to be expected on the road surface during the summer months. In the summer resistance is less than in winter "because heavier summer traffic polishes the surface and winter rain and frost prevent polishing materials from accumulating". This process was part of a programme of SCRIM tests which covered the road network for which the Highway Authority was responsible every two years, although the precise moment when any particular stretch of road would be investigated during the two- year cycle was a matter of chance.

These SCRIM result were sent to the WWTRA office in Camarthen. This were received there in January 1997. They were not analysed until the beginning of April 1997. Mr Williams himself did not receive the results, but rather a summary of them. In any event he personally would not have been able to extract meaningful information from the raw data.

On analysis these tests, taken only ten months after the resurfacing work was completed, showed that skid resistance movements for much of this stretch of road were below the investigatory level; that is to say below the standard chosen as a benchmark for alerting engineers "to a possibility of an increased risk of wet skidding accidents". As the judge noticed, there was room for debate about the appropriate benchmark. Having considered the evidence of Mr Roe, who was a senior scientist and research engineer of the Transport Research Laboratory, he accepted the conclusion that for a length of 1.2 kilometres of road, which included the site of the accident, and irrespective of the benchmark which was adopted, the test showed that "for most of the material length of road and in both directions, the skid resistance in the summer of 1996 was at or below the Investigatory Level". This presented a possible risk of increased skidding incidents in wet conditions. Readings at this level were "not to be expected so soon after resurfacing", and demonstrated that the site would need further investigation. In fact, before the process of analysis of these results was complete, another serious accident gave increased momentum to the need for a full investigation of the road surface.

In his arguments before us Mr Jarman was anxious to emphasise that of themselves SCRIM results of the kind and at this level were not diagnostic of a requirement that repairs to the road surface were immediately necessary. On the basis of the material before us, I accept that submission. Indeed it seems to me that the judge did not reject it or act on some different impression.

The significant next event has already been outlined. A road traffic accident occurred on the A447 on 9 March. It occurred some 150 metres east of the site of Mr Rogers' collision. It was a fatal accident. On this occasion in wet conditions a car left the load and a child was killed. No other car was involved.

After the accident the Welsh Office wrote to WWTRA asking for comments about road conditions at the site of the fatal accident including comments in relation to "SCRIM/skid readings".

The request by the Welsh Office for comments on road conditions and SCRIM/skid readings was, on the judge's findings, ignored. Moreover, there was no evidence before him that anyone in a position of responsibility in WWTRA looked up the relevant SCRIM information either immediately or after the results had been analysed.

In the meantime, Mr Williams had requested the Materials Laboratory to carry out pendulum skid tests, which took place on 30 March. For these tests the road surfaces is wetted and a rubber shoe is swung from a pendulum so as to test the resistance of the surface. These particular tests were carried out over a section of the road about 100 metres in length. Here too, the results were not satisfactory. "Not all the readings were above the recommended minimum requirement". The soils and materials engineer, Mr DPJ Morris, expressed the view in writing that they were "less than may have been anticipated". Another expert who gave evidence for the Highway Authority at trial suggested that the results were "indicative of the need for further investigation but they would not be of immediate concern unless the site test area had a reported high accident rate in wet road conditions".

Further investigations were carried out by Mr Morris and Mr Williams. On 10 April they arranged for six samples from the material in the carriageway to be cut out of the road surface. On laboratory testing the results indicated that excess binder content had been used when the road was resurfaced. There was also evidence of limescale contamination in the course aggregate. As I understand this evidence both findings are suggestive. Again I emphasise not diagnostic of possible reduced skid resistance.

On 7 May, and again on 9 May, there were further road traffic accidents on this stretch of road. Again, on both occasions the road surface was described as wet/damp. Both accidents involved a single vehicle. Both were described as "serious".

After the accident on 9 May, signs were erected along the road which warned drivers of a slippery surface. Three of these signs were for traffic going east, and three for traffic travelling in the opposite direction. They provided a warning to drivers not to drive too quickly, and to steer as unaggressively as possible. On the judge's findings, Mr Rogers, who passed two of the signs before his accident, was driving consistently with having heeded the warning.

A few days later, on 15 May, in a letter to the Welsh Office, WWTRA wrote that "urgent consideration should be given to surface dress this section of the Trunk Road. The approximate cost of carrying out this work is £23,000". The letter referred to "a further serious road accident" which had recently occurred on the same length of road, and sought "an urgent response". Quite apart from the need for urgency, which is demonstrated by the language used, the letter underlined that the concerns related to the stretch of this road was not confined to an isolated part or parts of it, on the bends.

In practical terms, the season for carrying out resurfacing work is short, lasting from about May until September, when prevailing weather conditions tends to bring such work to an end. In this context, therefore, the need for "urgency" described in the letter of 15 May was an important piece of evidence.

The action that was taken involved a letter from Mr Morris, dated 29 May, suggesting that further tests should be carried out by way of further cut outs of the road surface and tests of skid resistance. Mr Williams, who received the letter, agreed that there should be further cuts and further skid resistance testing through a different piece of equipment, the griptester. This was the start of what the judge decided was significant delay in organising appropriate remedial work. I shall return to this later in the judgment.

On 24 June the Welsh Office responded to the letter from WWTRA by saying that "since a fairly high proportion of skid resistance tests obtained values below the recommended minimum, and there is limestone contamination and out of specification binder content, there is a need to consider surface dressing". The letter went on to record that although a length of about 2 kilometres of road was then under consideration more grit testing was to be carried out to identify whether the whole length that had been resurfaced in the 1995 works required attention. The letter referred to exchanges with the contractor who had carried out those works with a view to obtaining reimbursement. These further cut outs are taken on 26 June.

Two further accidents occurred on this section on 13 July and then on 17 July. Again, both involved single vehicles. Both were serious. In relation to the accident on 13 July it was noted that the driver was reported to be intoxicated.

The Griptester Survey (or griptest) was then carried out on 23 July. Shortly afterwards, on 7 August, a chief inspector of Dyfed Powys Police wrote expressing "extreme concern" about the number of "fatal and injury road accidents that have occurred on this stretch of road over the last 10 years." He was, it is fair to say, directing attention to a stretch of 4.7 miles which included both Red Roses and Llanddowror villages, and so many of the more than 100 such accidents that he described during this period, and 13 which had taken place in 1997 could not fairly be said to have been directly relevant to this particular case. However, an analysis of the accidents which was enclosed with the letter observed that a number of them resulted from skidding or motorists going too fast or misjudging speed or distance. In any event, there had been what I shall describe as a "cluster" of accidents on the stretch of road with which this litigation is concerned. At the risk of repetition - 9 March, 7 May, 9 May, 13 July and 17 July.

Andrew Smith J inferred from the absence of disclosed documents from the traffic management section of WWTRA that there had been no proper examination of this cluster, and there was nothing to suggest that the views of the section were sought or received about whether repair work should start on the stretch of road, or the nature of the work that would be covered.

Mr Williams forwarded the letter he had received from the police to WWTRA at Camarthen. He commented:

The letter from the Welsh Office was received by WWTRA on 1 September. Instructions for the work were given on the following day. It was scheduled to take place beginning on 15 September. In short, despite the need for planning and organising the execution of the resurfacing programme, once the order was given, only 14 days were needed to make the necessary arrangements. Adverse weather conditions then delayed a programme of work elsewhere and so the planned programme for this stretch of road was disrupted, and the resurfacing programme was postponed. It had not been started when the accident involving Mr Rogers and his wife took place on 19 September. Work actually started a few days later on 24 September.

This analysis by the judge of these facts included no reference to the Design Manual for Roads and Bridges. The Highway Authority contends that, in exercising its functions, it had followed the guidance given in the manual, and the effect of the judgment is to contravene the advice given in it. I immediately acknowledge the force of the submission that some reference to the manual which, as I understand it was deployed by both sides before the judge, might well have been appropriate. But I have to add that I do not accept the absence of some reference in the judgment below has the consequence that Mr Jarman argued for. In the context of the condition of the highway and section 58 Mr Jarman highlighted a number of passages from the text. Having studied part of that text with the assistance of counsel and read it all beforehand, I do not believe that the document serves to undermine any of the judge's findings. I shall highlight one or two features. In parts, the paper is advisory and educational. It points out what some may regard as obvious. For example:

In his written submissions Mr Jarman relied on 3.69(d), which reads:

In particular, when examining the defence under section 58 the judge approached the case on the basis that although the SCRIM readings were taken in 1996, the fatal accident in March 1997 provided the appropriate starting point from which to consider the complaint that the Highway Authority did not respond to the defective condition of the surface with proper urgency. In doing so he looked at all the evidence, and he did not, in my judgment, attach inappropriate weight to the SCRIM test. The case on behalf of Mr Rogers was that resurfacing should have been arranged before his accident occurred, or that at the very least a temporary expedient to retexture the road and roughen the surface would have been appropriate. The Highway Authority contended that its response after the accident after 9 March was "methodical and timely". The problem was properly investigated and researched and according to this argument it was only a cruel misfortune which meant that the appropriate resurfacing works were delayed until after the accident had occurred.

The judge reminded himself of the harsh reality, that a highway authority cannot undertake the burden and cost of significant works on a highway without proper investigation, and warned himself of the dangers of deciding the case with the benefit of hindsight. He rejected the suggestion on behalf of Mr Rogers that he could decide the case simply on the basis that six months passed after the accident in March 1997 before any remedial works were carried out. He felt it right, and I agree with him, to examine what the Highway Authority was doing, or not doing, during this six- month period. In the end, after examining all the evidence he was not satisfied that enough had been done and that time was unnecessarily and unreasonably wasted.

The judge concluded that the initial response by the Highway Authority was not open to criticism, but he reminded himself that by mid- May WWTRA had concluded that "urgent" consideration should be given to resurfacing. Thereafter remedial work was delayed because of decisions which involved carrying out further tests. He noticed in particular that the proposal to have further cut outs by way of sample at the end of May 1997 was inappropriate. According to his judgment the Highway Authority at trial did not argue that these particular tests justified any delay in the remedial work. He considered the further skid resistance test using a griptester to decide whether the whole length required treatment. He concluded that this decision was unjustified on the basis that the Highway Authority had not explained why information from the SCRIM test and advice from the Traffic Management Section was not sought before the griptest proposal was adopted. He believed that the SCRIM results should have been reviewed immediately after the fatal accident in March. Basing himself on expert evidence he concluded that after there had been two further serious accidents before the end of May it was remarkable that WWTRA were not consulted before it was decided that these further tests were required. He recorded that "little evidence" had been put before him as to why WWTRA and the Welch Office decided that work should be delayed for further testing. He held that if the information from the SCRIM results had been taken properly into account with the other evidence, by June 1997 information was available which ought to have led to a decision that the whole length of road required resurfacing, and that if that decision had been made it could and would have been carried out promptly, and certainly before Mr Rogers' accident. That formed the basis for his rejection of the defence under section 58. In passing, I note that at the same time he rejected the criticism that the temporary expedient of retexturing of the road surfaces should have taken place.

In my judgment this was a finding of fact based on the evidence before the judge which he was entitled to reach. He took account of what Mr Williams and Mr Chamberlain, the appellant's expert witness, had told him. He expressly referred to their evidence in his judgment. This, in the end, was insufficient to enable him to decide how and why the remedial efforts required for this stretch of road were in fact delayed as long as they were, or perhaps more to the point, whether the delay was reasonable or justified to the extent that the Highway Authority had discharged the burden on it.

Despite Mr Jarman's focussed persuasiveness, I can see no basis for interfering with this factual finding. Accordingly, the appeal must be dismissed.

LORD JUSTICE LAWS: I agree that this appeal should be dismissed for all the reasons given by my Lord. I do not wish to add anything.

MR JUSTICE CHARLES: I also agree.