Kotula v EDF [2010] EWHC B11
In this case, His Honour Judge Simon Brown had to consider
whether the claimant, a cyclist, was guilty of contributory
negligence where hazardous street works narrowed the pavement path
and the claimant collided with 'a blameless Mercedes lorry'.
The claimant, aged only 24 years, sustained a serious spinal
cord injury while passing through a traffic management system
erected around an excavation by the defendants. The excavation was
on a pavement. On the evidence, the claimant was held to be pushing
and not riding his bike at the time. The route was hazardous
because it was:
'narrow, curved, ramped, adjacent to the kerb drop, and
obstructed by a metre high leaning permanent wooden post which was
located in the middle of the pavement between the plastic
barriers'.
This left only a half metre gap between the obstacle at about
handlebar height and the kerb.
The defendants' main argument was that the claimant was partly
at fault for his accident, either by negligently cycling upon the
pavement through the street works management system contrary to
Section 72 of the Highway Act and the Highway Code, or by walking
through the area with his cycle, whether he was astride it or
beside it. His carelessness consisted of not choosing another route
to ride along, or not riding down the road instead.
Regarding the first argument, the claimant admitted that he rode
on the pavement in this area because he considered it safer than
the road. However, it was his habit to dismount before proceeding
through street works, due to an accident years before. The evidence
of Mr Johnson (the driver of the Mercedes lorry), was that he had
seen the claimant riding his bike while passing through the street
works. The judge was not persuaded by Mr Johnson's testimony:
"I find his evidence to be inaccurate which casts grave
doubt upon his general reliability as an observer and his lack of
true 'independence' in an accident he was 'involved in'".
According to the judge, the "geometry of the hazard as
described by the experts strongly militates against Mr. Kotula
'riding' through the hazard", concluding:
"I am persuaded that the claimant probably followed his
usual practice of dismounting and was therefore a 'pedestrian'
lawfully on the pavement at the time of his actual fall and whilst
he was passing through the street works".
Regarding the argument that the claimant wrongly chose to take
the risk of passing through the street works at all the judge noted
that this was a busy road with "no satisfactory cycle
lanes" to the point that other cyclists would also use the
pavements. Indeed, he made clear his surprise that despite
government promotions of bicycling instead of resorting to motor
vehicles, there are not many satisfactory cycle paths.
Therefore:
"in my judgment, although it is illegal for cyclists to use
the pavement ... when weighing up the danger to himself it was a
reasonable decision by the claimant to ride on the pavements in
this area rather than the road".
Dismissing outright the argument that the claimant should have
used another route, the judge commented that this could only be
deemed negligent navigation with cruel hindsight. Indeed, the route
was not closed and was designed to direct pedestrians (with or
without cycles) along the route. In all, the judge accepted that
the pushing of the bicycle by the claimant through these hazardous
works would have 'inevitably' been a contributory causative factor
in the accident. However, referring to Lee v Williams [2001]
EWCA Civ 82, he noted that a pedestrian without a bicycle
would have been in a different position in terms of causation; Lord
Justice Dyson in Lee noted that cyclists were more vulnerable than
pedestrians in these situations as their flexibility of movement
was constrained by the bicycle.
There was nothing this claimant could have reasonably been
expected to do to avoid the accident. The defendants were wholly
responsible for this accident in laying out a hazardous path for
all pedestrians, 'including those just on foot, with children,
with buggies, cycles, or prams', and the defendants' plea of
contributory negligence was rejected.
Ultimately, this is a stark reminder of the duties a defendant
takes on when they create a hazardous situation. Trying then to
blame the injured party sounds very much like a counsel of
perfection. Here, it received exactly the degree of judicial
sympathy one might expect.
