Court of Appeal allows liability claim against council over “dangerous” hole in grass verge

In Karpasitis v Hertfordshire County Council [2025] EWCA Civ 788 (25 June 2025), Lord Justice Bean, with the agreement of Lord Justice Coulson and Lady Justice Andrews, allowed the appeal, overruling the original finding that it was not foreseeable that a cyclist would use the verge to ride on. The Court of Appeal also found that the original judge was correct to find that the defect was “dangerous” and required repair.

On 22 April 2020, the claimant was riding his bike on a familiar route in Hertfordshire, which took him onto a path to the east of the A10 dual carriageway, from which it was separated by a grass verge.

He travelled north up to a bridge which crosses over the A10. As far as the bridge, the path was signposted as a shared footpath and cycle path.

North of the bridge, the path narrowed from 2.5 metres to approximately one metre in width. The judge said: “There was no sign denoting any changed use of the path.”

The claimant continued north to a quiet road where he turned around to go home.

Heading south towards the bridge, he encountered a jogger also travelling south and wearing headphones. Travelling around 10mph, he took the decision to overtake the jogger.

This required him to cycle on the grass verge to the right of the path, with the A10 on the right of the grass verge.

There was a hole in the verge, just south of a road sign, which was sufficient to throw the claimant from his bicycle. This caused a complex fracture of the second vertebra. His injuries were so serious that he gave up his job as a social worker.

The respondent, Hertfordshire County Council, is the highway authority in respect of the grass verge where the claimant fell.

Directions were made by consent by Master Gidden for a split trial, with issues of breach of duty and factual and legal causation of some injury (ie liability), together with contributory negligence, being tried first.

The trial of these liability issues took place before Mr Vikram Sachdeva KC (sitting as a Deputy High Court Judge) in March 2023. By a reserved judgment handed down nearly 7 months later, on 20 October 2023, the judge dismissed the claim.

Dealing first with the claim based on the Highways Act 1980, the judge found that the verge formed part of the highway; that the hole in the verge put the highway into a state of disrepair for the purposes of s 41 of the 1980 Act; and that it was dangerous.

However, on the alternative claim at common law, the judge noted that for liability in common law to arise, the defendant must have committed a “positive act” which adversely affects the risk to users of the highway.

He said: “There is no evidence that the Defendant has committed any positive act. Omitting to erect a sign indicating that cycling is not permitted is an omission. If that is incorrect, the positive act of constructing a shared facility south of the Paul Cully bridge without erecting a sign prohibiting cycling north of the bridge was not negligent, for given that the general presumption is that paths cannot be used for cycling absent expression permission; that the use of end signs is discretionary and indeed used as an exception rather than the rule; that the change in width of the path, together with its undulations and the lack of shared use signs were sufficient to indicate to a reasonable cyclist that the path was no longer one which could be used for cycling.”

The judge also stated that if he had found the defendant liable, he would have made a finding of one third contributory negligence against the claimant.

Appealing the judge’s decision, the claimant submitted the following grounds:
1. The learned deputy judge erred in finding that the Defendant Highway Authority had established the statutory defence afforded by section 58 of the Highways Act 1980.
2. The learned deputy judge erred in finding that there was no common law duty to sign the end of the cycle path.

In response, the council's solicitors served a Respondent's Notice asking the court, if necessary, to uphold the order of the judge dismissing the claim for the following reasons:

1. The Learned Judge was wrong at paragraph 91 of his judgment in finding that the opinion evidence of Dr Robert Davis as to what a proficient and law-abiding cyclist would or would not have done was admissible. This was not an opinion founded on a specialised body of knowledge but on common practice/usage.

2. The Learned Judge was wrong to find that the relevant part of the grass verge was in disrepair for the purposes of s.41 Highways Act 1980. The Respondent relies, inter alia, on the following:
a. The Learned Judge misdirected himself as to the law at paragraph 115 of his judgment that dangerousness was met because of a need to repair. The need for repair is not the test [Mills v Barnsley MBC [1992] PIQR 291].
b. The Learned Judge's finding that the grass verge was in need of a non-urgent repair was inconsistent with his conclusion that the relevant area was dangerous for the purposes of s.41 Highways Act 1980.
c. The Learned Judge at paragraphs 121 and 123 was wrong as a matter of law to rely upon the foreseeability of injury as a basis for a finding of dangerousness under s.41 Highways Act 1980.
d. The Learned Judge was wrong to find at paragraph 125 that a cyclist using the grass verge is a normal user of the highway [Burnside v Emerson [1968] 1 WLR 1490].

3. The court's dismissal of the claim in common law negligence was correct for the following additional and/or alternate reasons:
a. A common law duty of care was not owed because any alleged positive act did not create a danger.
b. A common law duty of care was not owed because any relevant risk that arose was an obvious one against which the Defendant was not obliged to protect the Claimant at common law
c. Even if a common law duty of care was owed to the Claimant, there was no liability in negligence because the scope of any duty did not extend to the risks arising from the Claimant electing to ride on the grass verge.

4. The Learned Judge's apportionment of contributory negligence at 33% was wrong. The finding that it was reasonable for a cyclist to cycle on the grass verge, upon which the apportionment was predicated, was based on the inadmissible evidence of Dr Davis. The appropriate reduction should have been 50% as the Claimant was equally responsible for his injuries.

At the Court of Appeal, Bean LJ concluded the judge was correct to find that the defect was dangerous and called for repair, adding that in fact he “ought to have found that it called for urgent repair”.

Further, he noted that the foreseeability of cyclists riding on the verge was “clearly relevant” to what constituted ordinary traffic.

He said: “In the circumstances, a cyclist using the grass verge to pass another highway user was plainly foreseeable and represented ordinary use of the highway."

Rejecting the council’s submissions, Bean LJ allowed the claimant’s appeal, making the following observation on the issue of contributory negligence:

“The final paragraph of the Council's Respondent's Notice criticises the judge's finding that, if the Appellant had succeeded on primary liability, there would have been a deduction of 33% for contributory negligence: it is said that the apportionment should have been altered in the Council's favour.

“There is a long line in authority, culminating in the Supreme Court decision in Jackson v Murray [2015] UKSC 5 that it is extremely difficult to upset a judge's apportionment of primary liability and contributory negligence. This is not one of those exceptional cases where such an alteration would be justified.

“I would allow the appeal and enter judgment for the Appellant for damages to be assessed, subject to a deduction of 33% for contributory negligence.”

Lottie Winson