Highway Authority Duty

January 14th, 2015

Foulds v Devon County Council, Case No: A90EX006, Judgment 9 January 2015, relates to a cycling accident.  An 18 year old lost control of his bicycle and left the carriageway, continuing through/over ornamental railings which were on top of a low retaining wall, and falling down a large drop to a lower road.  The personal injury claim for negligence against the County Council as highway authority responsible for the road failed.  The essence of the case against the authority was that it owed a common law duty of care to ensure that railings were in place of sufficient strength and structural integrity to prevent a pedestrian or cyclist from falling over the retaining wall to the ground below, ie to cope with the potential impact from a pedestrian or cyclist.

The Judge applied the following principles: (1) at common law a highway authority owes no duty to make a road safer; (2) however, where the highway authority positively acts and creates a trap or danger which would not otherwise have existed it may be liable.

The Judge held that, whilst the authority aimed to regularly visually inspect and maintain the railings so as to provide some safety to pedestrians (and those travelling in the road below) at no stage were the railings ever considered as some form of crash barrier or in any way an effective barrier for cyclists hitting them with considerable force with a bicycle.  The Judge said that there is the world of difference between a pedestrian stumbling and putting an arm on railings to steady him/herself and the sort of considerable force that was very likely to have been involved in the accident.  The Judge simply did not see the relevant act or undertaking of responsibility on the part of the Defendant as regards the prevention of the fall to the road below if a cyclist crashed into the railings at speed and with force.

The Judge said that the submission against the authority amounted to a proposition that once a level of safety has been provided then a duty arises which means that it must be maintained.  The Judge rejected that submission.  Not the least of the reasons why is that the argument that was rejected in Gorringe v Calderdale MBC, [2004] UKHL 15, [2004] 1 WLR 1057, in which there had previously been a sign painted on the road telling motorists to slow that had been allowed to disappear.

In the Devon case the Judge regarded the reality as being that the local authority was not alleged to have done something inadequately or in an unsafe fashion pursuant to a power, rather than it did not do something at all, i.e. that it did not provide a crash barrier or regard the railings as in effect a crash barrier and maintain and/or augment them as necessary so as to achieve that aim. The Judge ruled that there cannot have been a duty of care that required it to do so.

Were it to be otherwise, he said, that would involve questioning the allocation by the Council of its limited funding, upon which there are doubtless many calls, specifically as to whether it chose to enhance the maintenance or enhance the safety of the railings so as to provide this additional protection or undertake some other, in financial terms, competing act.

The Judge saw no trap or danger produced or created by the Defendant’s actions. There is said the Judge the world of difference between a trap or foreseeable risk of injury through the creation of a dangerous layout or allowing a structure that is part of the highway environment to become dangerous to those engaged in ordinary and foreseeable use on the one hand and a failure to enhance safety through provision and maintenance of a feature on the other.  The Judge was therefore not satisfied that the authority was under a duty to ensure that the railings were maintained and/or repaired so as to provide a structure of sufficient strength and structural integrity to withstand the forces exerted in the circumstances of this accident i.e. by a cyclist and bicycle crashing into them.  In light of that finding the claim had to fail.

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