Yesterday I heard from one of our local campaigns about an argument put by a councillor. It was :-

"If I designate a street as 20mph, then more people will think it safe to walk and cycle.  I am worried that if someone is then killed or seriously injured by a car travelling at (say) 30mph, then the Traffic Authority might be liable".  

Here we discuss the relevant civil case law regarding the duty of the council to act reasonably when managing the roads. The argument condenses down to clear opinion that :-

1. If a Traffic Authority sets a speed limit which misrepresents the hazards involved, then it is in breach of its common law duty of care towards both the driver and to anyone injured. Regardless of whether the road user was negligent, the Traffic Authority risks liability for any consequences.
2. Where a Traffic Authority has set a 20mph speed limit, then liability for any consequences of a collision rests solely with the driver if they negligently exceeded the speed limit and could have avoided the collision if they had adhered to the limit.

The argument that Traffic Authorities risk liability if a 20mph limit is set and not adhered to by a driver has no credibility. Instead the reverse is true: The correct setting of a 20mph limit shifts liability to the driver when acting negligently by exceeding the speed limit regardless of any negligence by a vulnerable road user.

The Duty of Care responsibilities of a Traffic Authority are further explored in a comprehensive briefing.

First we can look at the responsibility of the Traffic Authority to set the correct speed limit. The relevant document is Dept for Transport Circular 01/2013 on Setting Local Speed Limits.

In the guidance it makes a particular note about the reliance of drivers on the speed limit as a guide to the hazards involved on a road. In section 3 it details that :-

"As well as being the legal limit, speed limits are a key source of information to road users, particularly as an indicator of the nature and risks posed by that road both to themselves and to all other road users."

In addition it references vulnerable road users in section 32 :-

"Different road users perceive risks and appropriate speeds differently, and drivers and riders of motor vehicles often do not have the same perception of the hazards of speed as do people on foot, on bicycles or on horseback. Fear of traffic can affect peoples’ quality of life and the needs of vulnerable road users must be fully taken into account in order to further encourage these modes of travel and improve their safety. Speed management strategies should seek to protect local community life."

This is coupled with a clear statement in Table 1 that the 20mph limit should apply "In streets that are primarily residential and in other town or city streets where pedestrian and cyclist movements are high, such as around schools, shops, markets, playgrounds and other areas, where motor vehicle movement is not the primary function."

Hence there is a predisposition in the guidance towards a 20mph limit in urban streets, where there are frequently vulnerable road users. Note that the requirement to fully take into account vulnerable road user' needs cannot be arbitrarily put on one side merely because drivers may not be either aware of either (1) the particular risks on a road or (2) the dis-benefits to society of travelling at a higher speed. The onus is on the Traffic Authority to set the right speed limit and for the driver to obey it. 

Note that the responsibility to set the correct limit is separate from any issues of compliance. In Section 97 on setting 20mph limits the guidance details how this can be done :-

"Traffic authorities are already free to use additional measures in 20 mph limits to achieve compliance, such as some traffic calming measures and vehicle activated signs, or safety cameras. Average speed cameras may provide a useful tool for enforcing compliance with urban speed limits."

This requirement to set the right speed limit quite rightly imposes a liability on the Traffic Authority. This is further endorsed by two Court of Appeal cases which have set legal precedents. The first covers the liability of a local authority in discharging its powers in managing roads and the second covers the liability of a driver of exceeding a 20mph limit.

In the case of Yetkin v London Borough of Newham in the Court of Appeal, the court recognised that the correct management of the roads imposes a liability on the Traffic Authority, even in cases where a road users had been negligent. Whilst the particular case was about the management of raised beds in a central reservation obscuring the view of a driver approaching a negligent pedestrian, the judgement was more general:-

"The Highway Authority owed a duty to all road users, whether careful or negligent, to use reasonable care in the manner in which it exercised its powers when it created and maintained the crossing facility."

"The Local Authority had a common law duty of care towards the Claimant, notwithstanding her own negligence; that duty was breached; the breach was a cause of the accident."

From this we can deduce that if a Traffic Authority sets a speed limit which misrepresented the hazards involved then it is in breach of its common law duty of care towards both the driver and to anyone injured regardless of whether either road user was negligent.

This supports the view that the local authority risks liability if it does not set (or keep a default 20mph limit in Wales) where there is clear guidance that such a limit is appropriate in warning drivers of the hazards on a road.

The case of Rehman v Brady found that where a driver was exceeding the speed limit then the driver becomes 100% liable for the consequences and damages of any collision, even if a pedestrian behaved negligently. A child of 7 was walking with her mother, aunt and sister when she negligently crossed the road and was hit by a car travelling at an estimated 28 to 32mph in a 20mph limit. Hence "allegations of contributory negligence will not be successful where it can be shown that the accident would not have happened at all but for the driver's negligence".

Where a Traffic Authority sets (or keeps in Wales) a 20mph speed limit, liability for the consequences of a collision rests solely with the driver if they had negligently exceeded a speed limit which if adhered to would have enabled the collision to be avoided.

So this "civil liability" argument is just a myth. If a councillor uses it as a reason why they do not support a 20mph then their error should be pointed out to them with the suggestion that they can check themselves with their council's legal officers. Keep any emails associated with the argument as evidence to be made available to any civil claimant that has been harmed by a driver in a residential street where the council has maintained a 30mph limit.