There is a very useful discussion in the recent case of Foulds v Devon County Council about the nature of a highway authority’s common law duty to road users.

The issue in the case was whether a highways authority had assumed a common law duty of care to road users in respect of railings erected on a low wall between the highway and a steep drop. A cyclist lost control and crashed through the railings, falling down the drop, and sustained serious head and spinal injuries.

The Defendant had installed the railings to provide a degree of protection to highway users from the drop. The Defendant had inspected and periodically maintained them. However, the railings were rusty and not sufficiently strong to withhold the impact of the cyclist.

The Claimant argued that, having taken the decision to install, inspect and maintain these railings, the highways authority was under a duty to do so properly. The Claimant also argued that the Defendant created a reasonable expectation that the robust-looking railings would survive impact.

The claim failed, with the judge applying Gorringe v Calderdale [2004] WLR 1057. The risk of falling over the drop was not created by the Defendant. The railings did not increase this risk. The highways authority had not created a trap, or danger. The judge rejected the submission that, in effect, having provided a certain level of safety the Defendant became under a duty to see this was maintained: this argument ran contrary to the principles in Gorringe, where a highways authority was not liable for failing to maintain a “slow” sign on the road. The judge considered that the Claimant was essentially criticising the Defendant for failing to provide a better crash barrier and this was an argument of non-feasance, which could not be sustained following Stovin v Wise and Gorringe.

This will be a useful case for defending future claims involving fixtures near the highway.