Andrew Founds and Claire Foulds (Personal Representatives of Benjamin Foulds, deceased) v Devon County Council QBD 09/01/2015


The Claimants were the personal representatives of their son who had suffered serious head and spinal injuries in an accident, rendering him paraplegic.

The background to the claim was that the highway authority had placed railings on top of a retaining wall to prevent pedestrians from falling down a large drop, and had routinely inspected the railings.

On the day of the accident, the Claimants’ son had been riding his bike when he lost control and crashed into the railings. Witness evidence was that the railings broke on impact resulting in him falling down the drop to the road below.

The Claimants submitted that the local authority owed a common law duty of care to ensure that the railings were sufficiently strong to prevent a pedestrian or cyclist from falling over the retaining wall to the road below on the basis that by erecting and maintaining the railings they had assumed a responsibility.

The Defendant denied that it owed any duty of care.


The Court accepted that at common law a highway authority owed no duty to maintain the road or to make it safe. However where a highway authority positively acted and created a trap or a danger which would not otherwise have existed, it might be liable.

That said, the Court noted that, whilst the local authority aimed to regularly visually inspect and maintain the railings so as to provide some safety to pedestrians, at no stage were the railings considered to be some form of crash barrier.

The Court held that the local authority had not undertaken a relevant act or undertaken responsibility to prevent a fall to the road below if a cyclist crashed into the railings at speed and with force. The Claimants’ submission amounted to a proposition that once a level of safety had been provided then a duty arose which meant that it had to be maintained.

The Court could not accept that submission and accordingly the claim was dismissed.

What can we learn?

  • The judgment in this case makes it clear that simply providing safety measures does not automatically mean that a local authority will have assumed a duty of care
  • The decision suggests that a degree of common sense will apply and a court will look at the actual purpose behind the introduction of the safety measures and will not seek to stretch that the duty of care beyond that purpose
  • To defend these claims, defendants need to show that locations such as this are inspected and maintained, regularly and ideally are assessed and recorded