Summary

Transport for London built a stepped cycle track along Farringdon Road as part of Cycle Superhighway 6. It sat above the carriageway behind a kerb with a vertical upstand of about 5 to 6 cm. Both surfaces were black tarmac and looked much the same. Two experienced cyclists took the kerb for a painted line, tried to cross onto the track and fell.

A circuit judge found the authority negligent, cutting damages for contributory negligence by 70 per cent for Mr Young and 65 per cent for Mr Upitis. The authority did not dispute the duty. Its case was that the judge had turned foreseeable harm to a careless cyclist into breach. The Court of Appeal agreed, set aside the findings of liability and remitted both claims for a fresh hearing. It did not hold the authority was not liable.

Background and facts

Double red lines were painted beside the kerb and a white triangle marked where the track began. Both men rode out into the carriageway at the junction with Ray Street, then moved left to rejoin the route past its start, and each read the upstand as a line he could cross. Both accidents happened in darkness.

At design stage the road safety auditors warned that a stepped track might show little differentiation from the carriageway. The designer rejected that, pointing to the double red lines and to 50 mm kerbs already used across London. In cross-examination the authority's head of engineering accepted that a row of wands would have been simple to install and would have cut the risk. That answer became the foundation of the finding of breach.

The issue

The judge held that the authority owed a duty because it built the feature, that some cyclists would foreseeably mistake the kerb for a line, and that wands would have removed the hazard. The appeal asked whether he had run duty, foreseeability and breach together.

The decision

On duty the judge was upheld. There is no tension between the authorities saying road users take the highway as they find it and those saying a body which creates a danger by a positive act may be liable in the ordinary way. A body that built the dangerous thing faces ordinary negligence, and the duty runs to careless users as well as careful ones.

On breach the judge was reversed. Having stated the duty correctly, he kept returning to foreseeability when he should have been applying the standard of care, and twice described the required step as one that would leave the risk no longer reasonably foreseeable. That was the wrong test.

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, paragraph 46

What he had to do instead was weigh whether the risk called for more. The court listed the factors: the size of the risk, the social utility of the facility, standards and guidance, the design judgment, the accident history, and the cost and drawbacks of the precaution. He had accepted that a reasonably careful cyclist would have read the markings correctly, so his finding rested on a risk arising mainly from mistaken use.

Liability does not follow whenever the design of a highway feature is capable of being misunderstood by some road users. Foreseeability of harm is not to be equated with breach.Lady Justice Yip, paragraph 52

The reasoning was thin on the size of the risk. A very large number of cyclists used the route and a small number of accidents had happened, which does not by itself show the risk demanded more. He moved from a foreseeable risk to an available precaution to a finding of breach, without explaining why the failure to install wands was unreasonable.

the appellant owed a duty of reasonable care because it had created the relevant highway feature, but that duty did not require it to take action to protect cyclists against every foreseeable risk arising from error or confusion.Lady Justice Yip, paragraph 62

The complaint that the wands allegation was unpleaded failed, because the pleaded case covered the contention that more could have been done to make the kerb distinguishable, and the witness was cross-examined on wands without objection. The court would not remake the decision and remitted both claims with every issue at large. Nothing decides that the authority is not liable, and the court recorded that the case raises no new point of law.

Practical implications

Anyone who builds a feature into a public space owns the duty, and arguing that a competent user would have coped does not remove it. Carelessness by the user goes to contributory negligence and breach, not to the existence of the duty.

Breach is a separate exercise and it is where a defence of this kind is won or lost. A claimant who proves a foreseeable risk and points to a cheap fix has not finished the job. The court must be taken through the size of the risk against the volume of use, the purpose the feature serves, and what the remedy would cost.

Safety audit reports cut both ways. An audit flagging a risk the designer rejected is evidence the risk was foreseen. The reasoned rejection is evidence the designer applied its mind. A rejection with no reasons recorded gives a claimant the first without the second.

Transport for London v Cairn Young & Anor [2026] EWCA Civ 1095. In the Court of Appeal, Civil Division, on appeal from Central London at the Mayor's and City Court, His Honour Judge Hellman. Before Lord Justice Bean, Vice President of the Court of Appeal, Civil Division, Lord Justice Stuart-Smith and Lady Justice Yip. Judgment given by Lady Justice Yip. Heard 27 July 2026, judgment handed down 18 August 2026. Case references CA-2025-001281 and CA-2025-001288.