Case note: liability decision in Brown v Morgan Sindall Construction and Infrastructure Ltd [2025] EWHC 2204 (KB)

Findings of Fact

The Claimant was injured while cycling along a temporary two-way cycle lane adjacent to the Defendant’s construction site, when his bicycle struck the unmarked base of a Kingpin cycle bollard from which the vertical wand had been removed, leaving a raised dark base on the carriageway that blended with the tarmac and was not clearly visible.

The wand had likely been removed due to vandalism or other anti-social behaviour out of site hours, a recurring issue of which the Defendant was aware since at least August 2019. The unmarked base constituted a physical hazard, particularly as it was dark, non-reflective, and not accompanied by warning signs or markings to alert road users.

Reasoning on Liability

The Defendant as principal contractor had control of the cycle lane arrangement under a licence, and was responsible for both the installation and ongoing maintenance of the traffic management system and the safety of the temporary cycle lane created for the project.

Despite the collaborative nature of the scheme and consultation with the local authority (LBHC) and Transport for London (TfL), the ultimate legal responsibility for ensuring safety and managing risks lay with the Defendant. The Court rejected arguments which sought to shift responsibility by claiming that the scheme was as ‘approved’ by LBHC and TfL, in accordance with contractor advice.

There was a marked failure to undertake or evidence any specific risk assessment for the choice, installation, or ongoing monitoring of the Kingpin cylinders, especially regarding the foreseeable risk of wand removal and resulting hazards for cyclists.

The bollards were installed and maintained other than in accordance with manufacturer’s instructions, specifically as the wands were not screwed into the bases as directed, but instead secured only via a ‘twist and lock’ method to facilitate blue light access for emergency vehicles.

The system of inspection and maintenance adopted by the Defendant was not reasonable or effective: there were no robust checks or monitoring to detect or mitigate risks when the site was closed (when vandalism occurred) and the cycle lane remained open.

The Defendant did not meaningfully assess or act upon the known risk to cyclists once it became aware of the recurring problem, nor did it take reasonable interim steps, such as removing the hazard, improving markings, or providing warnings, pending identification of alternative solutions.

In the circumstances, the Defendant failed to comply with the Safety at Street Works and Road Works Code of Practice (“the Red Book”).

The Defendant was accordingly found to be negligent, and the presence of the bollard base, once the wand was removed, created an unjustifiable danger to road users and constituted a public nuisance on the highway.

A small deduction was made for contributory negligence, on the basis that the Claimant had been cycling close to the central white line (and thus close to the hazard).

A Timely Reminder

The decision affirms the principle that consultation and collaboration between stakeholders in public highway works does not displace the legal responsibilities of site contractors who control and manage temporary traffic arrangements.

It highlights the expectation that risk assessment, proactive hazard mitigation, ongoing inspection, and compliance with statutory codes and manufacturer directions are essential for discharging legal duties in highway works impacting public users. Where scheme defects are known and the risk is foreseeable, contractors must take prompt, effective action to assess and rectify hazards; reliance on stakeholder consultation or making general compliance assertions is insufficient.