Factual and Procedural Background
This appeal concerned two County Court personal injury claims arising from cycling accidents on a stepped cycle track forming part of a cycle route constructed by Company A. The Respondents, both experienced cyclists, collided with a raised kerb after mistaking it for a white road marking. [1]
The claims were tried together. The trial judge found Company A primarily liable, while attributing 65% contributory negligence to Respondent 1 and 70% to Respondent 2. Company A appealed the finding of primary liability. [2][3]
The Court of Appeal allowed the appeals and remitted both claims for a fresh hearing before a different Circuit Judge. [4][5]
Legal Issues Presented
- Whether Company A owed the Respondents a duty of care concerning risks created by the design and construction of the cycle track. [6][7]
- Whether foreseeability of harm caused by careless cycling was wrongly treated as sufficient to establish breach. [6][8]
- Whether it was procedurally and evidentially proper to find negligence by reference to the failure to install protective wands. [6][9]
- Whether the trial judge conducted the necessary evaluative assessment of breach and considered all relevant factors. [6][10]
- Whether the Court of Appeal should decide the breach issue itself or remit the claims for a fresh hearing. [6][11]
Arguments of the Parties
Company A's Arguments
- The decision was procedurally irregular because it depended on an unpleaded allegation. [12]
- The trial judge misdirected himself on the duty of care and wrongly found breach on the evidence. [13][14]
- The judge failed to conduct a proper evaluative assessment, omitted relevant factors, and imposed an impermissibly high standard of care. [15][16][17]
Respondents' Position
- The parties agreed that the trial judge's statement of the duty of care was straightforward and correct. [18][19]
- The Court recorded no detailed account of the Respondents' other legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Yetkin v Mahmood & London Borough of Newham [2010] EWCA Civ 776; [2011] QB 827 |
A highway authority may owe a duty not to create a hazard by a positive act; the duty may extend to negligent road users. |
The Court treated Yetkin as consistent with the other authorities and held that the Respondents' carelessness did not negate the existence of the duty, although it could affect breach, causation and contributory negligence. [20][21][22][23] |
| Stovin v Wise [1996] AC 923 |
Highway authorities generally have no common-law duty to remove or warn against all ordinary highway hazards or to exercise statutory powers for individual road users. |
The Court placed the case in the category concerning failure to improve or warn about the highway as found, distinguishing it from positive creation of a danger. [24] |
| Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 |
There is no general duty to improve highways or warn against ordinary and obvious hazards, but positive conduct creating or materially contributing to danger may attract ordinary negligence principles. |
The Court held that Gorringe and Yetkin addressed different situations and were not inconsistent. [24][25][22] |
| Braithwaite v Lewisham LBC [2025] EWHC 782 (KB) |
An illustration of the established principles governing hazards created by positive acts on highways. |
The Court described the decision as a further illustration of settled principles. [26] |
| Tomlinson v Congleton Borough Council [2004] 1 AC 46 |
Foreseeability of injury does not mean that reasonable care requires every possible precaution; the relevant question is proportionality and reasonableness. |
The Court relied on the principle that foreseeability alone does not establish breach and that, in some circumstances, reasonable care may require no further action. [27][28][29] |
Court's Reasoning and Analysis
The Court distinguished between cases involving a failure to improve or warn about an ordinary highway feature and cases in which a public authority positively creates or materially contributes to a danger. The present case fell within the second category because Company A had constructed the cycle track. [30][25]
Company A therefore owed a duty of reasonable care to all road users, including cyclists who were not exercising reasonable care. However, that duty did not require elimination of every foreseeable risk. [31][32][26]
The particular layout created a foreseeable risk that cyclists could mistake the raised kerb for a white line. That risk had also been identified in road safety audit material. Nevertheless, foreseeability established neither breach nor an automatic requirement for further precautions. [33][23][34]
The trial judge had accepted that a reasonably careful cyclist would have understood the significance of the road markings and triangular marking. The case therefore depended on whether reasonable care required additional protection against inattentive or mistaken use. [35]
That question required an evaluative assessment of all relevant circumstances, including the magnitude of the risk, the seriousness of potential injury, the cycle track's social utility and design purpose, applicable guidance, professional design judgment, accident history, and the practicality, cost, effectiveness and disadvantages of proposed precautions. [27][28][29]
The trial judge had moved too quickly from foreseeable harm to the availability of wands and had not sufficiently explained why failing to install them was unreasonable in light of the route's high usage, the track's design purpose, audit material, relevant guidance and the consequences of a barrier solution. [36][37][38]
The Court rejected the argument that reliance on wands was procedurally unfair. The pleaded case was broad enough to encompass the point, Company A's witness had been cross-examined about wands, and no objection had been raised. [39]
Because the required assessment was fact-sensitive and closely connected with causation and contributory negligence, the Court could not fairly substitute its own evaluation. The issues therefore had to be reconsidered at a fresh hearing, with no findings of fact preserved. [40][41][4]
Holding and Implications
APPEALS ALLOWED. The findings of liability and consequential decisions were set aside, and both claims were remitted for a fresh hearing before a different Circuit Judge. All issues, including contributory negligence, were left open. [4][5]
The decision confirms that a highway authority may owe a duty of reasonable care where it creates a hazardous feature, including in relation to careless road users. However, foreseeable harm alone does not establish breach; the necessity and proportionality of further precautions must be evaluated in context. [32][34][42]
The Court stated that the claims concerned established principles applied to the facts of this particular location and were unlikely to set a precedent for other claims. [43]