UK Construction and Law
Court of Appeal confirms a designer owes a duty for what it builds on the highway, then sets aside the finding that it broke it
By Staff Writer | 19 August 2026
Two cyclists mistook a 5 to 6 cm kerb for a painted line on a stepped cycle track in Farringdon Road and were injured. The trial judge held the authority liable for not installing a row of wands. The Court of Appeal has held that the duty was correctly stated, that foreseeability is not breach, and that the evaluative weighing the law requires was never carried out. Both claims go back for a fresh trial.
Transport for London v Young and Upitis was handed down on 18 August 2026. Lady Justice Yip gave the judgment, with Lord Justice Bean, Vice President of the Court of Appeal, Civil Division, and Lord Justice Stuart-Smith agreeing. The two County Court personal injury claims had been tried together by His Honour Judge Hellman and transferred up on the footing that they might raise issues of wider importance.
The stretch of Cycle Superhighway 6 in question carried a stepped track set below the pavement and above the carriageway, separated from traffic by a pale stone kerb with a vertical upstand of about 5 to 6 cm. Track and carriageway were both surfaced in black tarmac and looked very similar. Each cyclist had moved out into the carriageway to pass another rider, and each mistook the kerb for a continuous white line while moving back left. Both accidents happened in darkness, one in August 2019 and one in January 2020.
What the safety audit had already said
The road safety audit reports at design stage recorded a concern that a stepped track might show little differentiation from the carriageway and might read as one consistent surface. The designer answered that the double red lines marked the carriageway edge, that 50 mm kerbs were increasingly common in London, and that triangular ramp markings, a reflective wand and tapered markings would show the change in level. The same issue was flagged again as the works neared completion, this time noting that cyclists might try to enter the track outside the commencement point.
The trial judge found that the design approach had been reasonable, that a reasonably careful cyclist would have read the double red lines and the painted triangle correctly, but that it was still foreseeable some cyclists would make the mistake. He identified three possible further measures, rejected two, and held that a row of wands along the kerb should have been installed. Liability followed, with contributory negligence assessed at 65 per cent and 70 per cent.
It is important not to elide duty and breach. Even where a duty is owed because the authority has created the relevant feature, liability does not follow simply because injury was foreseeable. The duty is to take reasonable care, not to eliminate all foreseeable risk.
Lady Justice Yip
On the law the appeal produced no new principle, and the court said so. There is no tension between the line of authority holding that road users take the network as they find it and the line holding that an authority which creates a hazard by a positive act may be liable for it. The two address different situations. Where the authority has built the feature, the duty is owed to careless road users as well as careful ones, and the carelessness sounds in contributory negligence rather than in duty.
The part the trial missed
What was required after that was an evaluative assessment: the magnitude of the risk, the gravity of possible injury, the social utility of the facility, applicable standards and guidance, the professional judgment in the design, the accident history, and the cost, practicality and disadvantages of the further precaution. The court held the judge moved too quickly from a foreseeable risk to an available precaution to a finding of breach, and never explained why the risk crossed the threshold once it was set against the volume of use of the route.
Two subsidiary points survive for anyone who commissions or audits a design. The procedural complaint failed: the wands allegation was within the pleaded case, the witness was cross-examined on it without objection, and the judge was entitled to use that evidence. And audit material cuts both ways. A recorded concern about visual confusion is powerful evidence that a risk was foreseeable and that the design called for scrutiny, but the reasoned response to it is equally relevant to whether reasonable care was taken.
The appeals were allowed, the findings of liability set aside and both claims remitted for a fresh hearing before a different Circuit Judge, with all issues at large and no preserved findings of fact. The court encouraged the parties to settle, observing that these are ordinary County Court claims about one location rather than a precedent for others. The finding that survives is the one designers should note: build a feature, and you answer for it.