Highway authority not liable for defective railings

Foulds & another v Devon County Council [2015] EWHC 40 (QB)

Highway authority not liable for weak railing that failed to save cyclist.

(Juge Cotter QC)

The facts:

Benjamin Foulds was very seriously injured when riding home on his bike.  He lost control of his bike as he was riding down a hill on his way home at dusk after attending college.  He crashed into some old wrought iron railings on his nearside that shattered on impact, causing him to fall over them and down a 4.54 metre drop the other side onto a pavement.  The top of the railings on his side were approximately 1.5 metres from ground level and they had been installed in the 1930s when the land was privately owned.  It was not established how fast he was riding or what caused him to lose control.

The road surface was in a reasonable state of repair and so no claim was brought under section 41 of the Highways Act 1980 against the local highway authority.  Instead the claim was made at common law.

The claimant’s case was that the highway authority 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 i.e. to cope with the potential impact from a pedestrian or cyclist.

The defendant relied on Gorringe v Calderdale MBC [2004] WLR 1057 to the effect that it owed no duty in this regard to the claimant. It could not be held liable for non-feasance, merely for failing to exercise a statutory power to maintain the fence, in contrast to its statutory duty under section 41 of the 1980 Act.  Neither did the relatively weak state of the railings constitute a trap or danger. 

The judge also quoted from Lord Scott’s judgment in Gorringe, at paragraph 76, ‘Drivers are first and foremost themselves responsible for their own safety’ and said that the same was true of cyclists.

The judge referred to the House of Lords ruling in Stovin v Wise 1996 AC 923 which laid down the rule that a highway authority owed no duty to excercise its power to maintain to improve the visibility at a dangerous road junction, even though the poor visibility there was an acknowledged hazard. Nor was this a case where the local authority had acted negligently in the exercise of a power, as in Yetkin v Newham [2010] EWCA Civ 776 where a local authority had failed to maintain shrubs it had planted which obstructed a pedestrian’s view and thus constituted a foreseeable hazard.

The decision:

The judge dismissed the claim. 

He held that there was a ‘world of difference between a pedestrian stumbling and put an arm on railings to steady him/herself and the sort of considerable force that was very likely to have been involved in this accident. As a result and after careful consideration of the evidence I simply do 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 indicated that he would have found the claimant to be 66% contributorily negligent had he found the defendant to be in breach of its duty of care.

[Posted as a supplement to my Motor Liability Update 2015 course notes]