PI Brief Update

Hazards on the Highway: Duty of care for highway authorities clarified - Lucy Stock, Temple Garden Chambers

27/09/26. Transport for London v Cairn Young & Anor [2026] EWCA civ 1095

In a Court of Appeal judgment, handed down by Yip LJ on 18 August 2026, Transport for London (“TFL”) successfully overturned a finding of primary liability in two separate personal injury claims arising from accidents on the Cycle Superhighway 6 (“CS6”).

Background

The Respondents were both cyclists who had collided with the raised kerb of pale stone, with a vertical upstand of around 5 to 6cm, which separated the stepped cycle track (“SCT”) of the CS6 and the main carriageway. At the time of both accidents a bollard was missing which was intended to mark the front of the start of the kerb: instead, the layout was such that the first two kerbstones were laid so as to create a slope to accommodate the change in level and a white triangle marked the start of the track.

The Respondents, both experienced cyclists, mistook the kerb for a continuous white line marking the edge of the cycle lane and attempted to move to the left from the main carriageway, striking the kerb with the front wheel of their bicycles causing them to crash. At first instance, five cyclists, including the Respondents, gave evidence of similar accidents occurring due to collisions with a SCT.

First instance and appeal

At first instance, HHJ Hellman found against TFL on the issue of primary liability. Although the road markings were sufficient to warn a reasonably careful cyclist, it was a foreseeable risk that the kerb might be mistaken for a white line, and installing wands along the kerb would have been a simple precaution to remove this hazard. HHJ Hellman assessed contributory negligence at 65% in the case of Mr Upitis and 70% in the case of Mr Young. The issues raised upon appeal were common to both cases:

1. The nature and scope of the duty owed by a highway authority or road designer when it has created a feature on the highway;
2. The obviousness of the hazard;
3. The relevance of the risk only presenting to a negligent road user; and
4. The extent to which the first instance judge was entitled to find a breach of duty by reference to potential mitigating measures, notably the possibility of installing a row of wands along the kerb.

Findings on appeal

The Court of Appeal held that there was no inconsistency between the authorities addressing the scope of the duty owed by a highway authority to road users: Gorringe v Calderale MBC [2004] UKHL 15 and Yetkin v Mahmood [2010] EWCA Civ 776. Gorringe established that the common law does not impose on a highway authority a general duty to remove or warn against all hazards: a statutory power to improve road safety does not equate to a more general private law duty [41]. Yetkin, on the other hand, confirmed that liability may be established under the ordinary principles of negligence where the relevant highway authority has failed to take reasonable care in creating or materially contributing to a relevant hazard on the highway.

Yipp LJ cautioned against eliding the test for duty and breach. Even though TFL owed a duty because it had created the relevant feature, liability did not follow simply because injury was foreseeable. The test to be applied was whether, having regard to all the circumstances, TFL had taken reasonable care in installing the raised cycle kerb, or whether they should have taken further steps to reduce, or mitigate the risk posed by the kerb. Yipp LJ listed the following factors to be considered when applying the test:

1. The magnitude of the risk;
2. The gravity of possible injury;
3. The social utility of the facility;
4. Any applicable standards and guidance;
5. The professional judgment involved in the design;
6. The history of accidents or complaints; and
7. The cost, practicality and potential disadvantages of further precautions (see [48]).

Yipp LJ agreed with the trial judge’s finding that the kerb created a foreseeable risk; however, in accordance with Yetkin, the duty arising from the positive act of creating or contributing to a risk was not owed only to the careful, nor negated by the carelessness of the road user: “the essential question was whether the appellant acted unreasonably in failing to take additional precautions” [52].

The Court found that having identified the duty and standard of care, the judge at first instance had failed to undertake the required evaluative assessment applying that standard. Rather, the trial judge had misdirected himself on the issue of duty and focussed on the issue of foreseeability of harm. The fact that a duty was owed to cyclists and that harm was foreseeable did not necessarily mean that TFL should have taken the measure of installing wands on the SCT to reduce that risk of harm.

The appeals were therefore allowed; however, due to the fact-sensitive nature of the required evaluation, the Court of Appeal declined to remake the decision on breach, instead remitting the matters for reconsideration at a fresh hearing.

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