Sebastian Braithwaite v London Borough of Lewisham

A highway authority may incur common-law liability for a hazard created by positive intervention, but only where the intervention creates a real source of danger and injury is reasonably foreseeable. The duty is owed to careful and less-than-careful road users. The assessment is fact-sensitive and must consider the road layout, visibility, warnings, lighting, regulatory compliance, ordinary user expectations and the nature of the claimant’s lack of care. A highway authority need not design traffic-calming measures to accommodate a combination of significantly excessive speed, inattention and a sudden turning decision where that combination is not reasonably foreseeable. Section 41 of the Highways Act 1980 concerns keeping the highway in repair; it does not impose a duty to provide or maintain traffic signs or painted warnings.

The claimant appealed against the dismissal of his personal injury claim by His Honour Judge Saggerson after a two-day trial. He had collided at night with a 75mm-high build-out which narrowed the entrance to a one-way residential road. The highway authority had installed the build-out many years earlier. The claimant alleged that its design, the position of a one-way sign, faded road markings and the disappearance of bollards created a dangerous hazard or trap, and that the authority was liable in negligence and under section 41 of the Highways Act 1980.

The appeal raised whether the trial judge had misapplied the common-law duty concerning hazards created by positive intervention, failed to consider less-than-careful road users, wrongly rejected the section 41 case, and erred in treating subsequent alterations as relevant. It also challenged the contributory-negligence assessment.

The appeal was dismissed. The trial judge’s factual findings and evaluative conclusion were upheld, subject to one identified error which did not affect the result.

1. Positive intervention. The question was whether the build-out was a real source of danger when it existed, not whether the junction could have been made safer. The trial judge had properly considered the adequate lighting, the visible and contrasting kerb, the 20mph limit, surrounding traffic-calming features, signs and markings, regulatory compliance, ordinary expectations of road users and the absence of comparable reported accidents. His conclusion that the build-out was not a real source of danger to reasonably careful motorcyclists was plainly open to him.
2. Less-than-careful users. The trial judge had erred by expressing his conclusion only by reference to reasonably careful motorcyclists, despite the duty extending to less-than-careful users. The High Court reconsidered the issue on the existing findings. The relevant lack of care comprised significantly excessive speed, inattention and a late decision to turn. The build-out did not need to accommodate that combination, which was not an entirely foreseeable use of the highway. Ground 1A therefore failed.
3. Section 41. The alleged failure to repaint faded lines or replace bollards could not establish causation on the trial judge’s findings. In any event, section 41 of the Highways Act 1980 does not require a highway authority to provide or maintain traffic signs or painted warnings. The distinction between information and keeping the highway in repair in Gorringe v Calderdale was applied.
4. Subsequent changes. Post-accident alterations generally have limited relevance to whether the earlier state breached duty, apart from practicability and cost where those matters are in issue. They did not amount to an admission that the build-out was previously dangerous.
5. Contributory negligence. The 75% assessment was not realistically challengeable. It reflected both causative potency and blameworthiness, including the claimant’s excessive speed and inattention.

• High Court (King's Bench Division): appeal from the order of His Honour Judge Saggerson dated 11 November 2024 dismissing the personal injury claim. Permission to appeal was granted on 16 December 2024. The appeal was dismissed.