Free wheeling

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.


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