The claimant’s son was seriously injured in a bicycle accident, but died two years later for reasons unrelated.

The accident occurred when the deceased lost control of his bike and crashed into metal railings which had been placed on top of a low retaining wall. The railings had broken upon impact and the deceased fell down a large drop behind the wall onto a road below.

The local authority had constructed the retaining wall and railings many years earlier. It had included the wall and railings in its highway inspection regime, carrying out repairs to a different section of the railings on one occasion. The claimant 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.

The local authority denied that it owed any duty, and maintained that the railings were adequate to prevent pedestrians from falling over the retaining wall, and were not intended to be a crash barrier.

The claimant’s claim was dismissed. At common law a highway authority owed no duty to maintain the road or to make it safe. Where a highway authority positively acted and created a trap or a danger which would not otherwise have existed, it might be liable. However, the local authority’s actions in erecting the fence did not create a trap or danger.

There was a difference in maintaining the railings so as to provide some safety to pedestrians and creating a crash barrier. The local authority was not under a duty to ensure that the railings were maintained so as to provide a structure of sufficient strength to withstand the force exerted in the circumstances of the deceased’s accident.