Background
Cairn Young and Egon Upitis were injured in separate nighttime cycling accidents on a stepped section of Cycle Superhighway 6 on Farringdon Road. Each cyclist moved from the carriageway toward the cycle track, mistook its pale raised kerb for a painted white line and struck the kerb. The track and carriageway had similar black surfaces, and the kerb had an upstand of about five to six centimetres.
After trying the personal-injury claims together, HHJ Hellman held Transport for London liable because the layout created a reasonably foreseeable risk of injury and TfL could reasonably have mitigated it, particularly by installing a row of wands along the kerb. He found Young 70% contributorily negligent and Upitis 65% contributorily negligent. TfL appealed the findings of primary liability.
The Court’s Holding
The Court of Appeal unanimously allowed the appeals. It agreed that, because TfL had positively designed and constructed the stepped cycle track, TfL owed road users a duty to take reasonable care concerning dangers arising from that feature. That duty extended to careless cyclists; a road user’s own negligence did not negate the duty, although it could affect breach, causation and contributory negligence.
The trial judge nevertheless erred by moving too quickly from foreseeability of harm and the availability of an additional precaution to a finding of breach. Foreseeability alone did not require TfL to eliminate the risk. The court had to evaluate the magnitude of the risk relative to the track’s heavy use, the seriousness of possible injury, the track’s safety purpose, applicable standards and guidance, professional design judgments, accident history, and the practicality, effectiveness and disadvantages of measures such as wands.
Because the required assessment was fact-sensitive and the Court of Appeal could not fairly perform it on the existing findings, it set aside the liability findings and all consequential decisions. Both claims were remitted for a fresh hearing before a different Circuit Judge, with every issue—including causation and contributory negligence—at large and no factual findings preserved.
Key Takeaways
- A highway authority that positively creates or materially contributes to a highway danger may owe road users an ordinary common-law duty of reasonable care.
- That duty is not limited to careful road users, but the foreseeability of injury to an inattentive user does not by itself establish breach.
- Whether additional precautions were reasonably required demands a full assessment of risk, utility, design guidance, accident history, cost, practicality and possible disadvantages.
Why It Matters
The judgment clarifies the distinction between cases alleging a mere failure to improve or warn about a highway and cases in which an authority’s positive act creates the relevant feature. It also reinforces the separate roles of duty, foreseeability and breach: identifying a foreseeable accident and a possible preventative measure is not enough to prove negligence.
The decision does not establish that stepped cycle tracks are negligent or that these claimants must lose. Their claims will instead be decided afresh under established negligence principles applied to the evidence concerning this particular location.