30 January, 2015
The tragic case of Foulds v Devon CC (2015) QBD relates to a cycling accident where an 18 year old lost control of his bicycle and left the carriageway, continuing through/over ornamental metal railings which were on top of a low retaining wall, and falling down a large drop to a lower road. The Claimant suffered serious head and spinal injuries. The Claimant later died for reasons unrelated to the accident.
The Judge found that the Defendant was not under a duty to ensure that the railings were maintained and/or repaired so as to provide a structure of sufficient strength and structural integrity to withstand the forces exerted in the accident. At common law a highway authority owed no duty to maintain the road or to make it safe. The Judge did comment that if the highway authority had positively acted and created a trap or a danger which would not otherwise have existed, it might have been liable. The Judge further dismissed the argument that a duty had arisen from the fact the Defendant had regularly visually inspected and maintained the railings, at no point had the Defendant intended the railings to be a crash barrier.
The case will be helpful to Defendants and Insurers when defending similar claims. The Court dismissed the Claimant's submission that once a level of safety had been provided then a duty arose which meant that it had to be maintained. The Court was clear that the local authority was not under a duty to ensure that the railings were maintained so as to provide a crash barrier.