High Court judge dismisses appeal over rejection of cycling accident claim against council

Mr Justice Linden concluded that the judge was entitled to find on the evidence that the claimant had not proved that his accident was caused by a part of the kerb which amounted to a hazard or danger.

Outlining the circumstances of the incident, Mr Justice Linden said the claimant and his wife, who were both experienced cyclists, were cycling along the A3037 which is a relatively busy road on the outskirts of Redruth in Cornwall.

He said: “As the A3037 approaches the Tolgus roundabout from the Avers roundabout there is a cycleway off to the left. At the time of the accident the cycleway was not flush with the surface of the road and there was, instead, a kerb over which bicycles had to pass in order to join the cycleway from the road.”

The claimant’s wife was ahead of the claimant. She moved from the road to the cycleway and, as she went over the kerb, wobbled and almost lost control of her bicycle before managing to right herself.

Mr Justice Linden said: “Her husband did not see the wobble. His last recollection of the incident is that he was lining his bicycle up to cross from the road onto the cycleway. [His wife] heard the sound of him falling and looked back to see him unconscious on the cycleway having fallen and sustained a significant head injury.”

Damages were agreed in the sum of £50,000, subject to liability.

The claimant's case at trial was based on misfeasance in that the raised kerb was a “hazard or trap” which had been created in breach of a non-delegable duty owed by the council.

Counsel for the claimant relied on the evidence of a police officer who attended shortly after the accident on 20 May 2018. She said that she did not take any measurements of the raised kerb but her view was that it represented a danger to cyclists "especially due to the combination of cyclists having to mount the kerb onto the cycle path when travelling downhill".

Mr Justice Linden observed: “No measurements of the gap or drop between the cycleway and the road had been carried out at any point on the kerb. Rather, the Judge was asked to examine photographs of the junction between the road and the cycleway.

“[…] At each of the extremities it appeared that there was a significant gap but the gap gradually narrowed from both ends of the kerb towards the middle. The Judge found that, whilst not flush, the gap towards the middle was ‘nowhere near’ as severe as it was at either end. In the course of submissions the Judge observed that on the photographs the kerb looked ,fairly close to flush’ towards the middle of the junction.”

Dismissing the claim, the County Court judge concluded that the claimant had “failed on the balance of probabilities to establish the mechanics of the accident”.

He observed that the evidence of the claimant’s wife’s wobble could have been the result of her crossing at a different and higher part of the curb than her husband. Further, there was no evidence of any other accidents involving cyclists at this point.

Mr Justice Linden said the claimant’s grounds of appeal were as follows:

The lower court erred in law and was wrong not to conclude that the accident was caused as alleged by a hazard on the highway.
The lower court erred in law and was wrong not to conclude that the accident was caused by a trap on the highway created by the Respondent.
To the extent that the lower court did not conclude that the kerb running across the entrance to the cycle path constituted a hazard it was wrong to do so.

On grounds one and two, counsel for the claimant relied on Drake v Harbour [2008] EWCA Civ 25 for the proposition that where a claimant proves that a defendant was negligent and that the loss which ensued was of a kind which was likely to have resulted from such negligence, that would ordinarily be enough for the court to infer causation, even if the claimant was unable positively to prove the precise mechanism.

It was submitted that the first instance judge's reasons for his decision were “inadequate”.

Mr Justice Linden said: “[Counsel for the claimant] Mr Platts-Mills' submission was that the application of common sense to the known facts of this case inevitably led to the conclusion that the raised kerb was the probable cause of the accident. There were facts which pointed to this conclusion – Mrs Robertson's wobble, the fact that the claimant was cycling with care, the fact that he was lining up his bike to cross the kerb onto the cycleway lane when he fell and the fact that he and his bicycle had ended up on the cycleway – and there were no facts which pointed against it.”

Mr Justice Linden rejected the submission that that the judge's reasons for his decision were inadequate.

He said: “It seems to me that a fair reading of the Judgment is that [the judge] found that it had not been shown on the balance of probabilities that the raised kerb was the cause of the accident at all but, even if it had, the kerb was not a hazard throughout the whole of its length and it had not been shown, on the balance of probabilities, that the cause of the claimant's fall was a part of the kerb which was sufficiently raised to constitute a hazard.”

However, the High Court judge noted: “It is not the position, as Mr Lewis [for the council] appeared to suggest, that there is a general rule that the precise mechanism of the accident must be proved in every case and that a court would only exceptionally draw an inference as to probable cause in circumstances where the precise sequence of events cannot be fully demonstrated by the claimant. The approach is more flexible than that.

“I therefore agree with Mr Platt-Mills [for the claimant] that the Judge's finding that the kerb was not the cause of the claimant's fall is very surprising. If this were the only issue, I would have given serious consideration to allowing the appeal on the basis that, as a matter of common sense, the only inference open to the Judge on the evidence was that the kerb was the cause.”

He continued: “However, I part company with Mr Platts-Mills in relation to what might be called the Preseli point. Firstly, I do not accept his submission that the only conclusion open to the Judge was that the whole length of the kerb constituted a hazard, trap or danger simply because it was not flush to the road.

“The question whether the kerb, in whole or in part, was a hazard, was put in issue and it was disputed by the defendant that any state of affairs other than the cycleway being flush necessarily amounted to a hazard, as I have noted. No evidence of a relevant universally applicable standard or scientific or other expert evidence was put before the Judge to assist him in making a judgment. I consider that he was entitled to conclude, in the context of the evidence as a whole, that the claimant had not shown that this was the case.”

Dismissing the appeal, Mr Justice Linden concluded that the judge was entitled to find on the evidence that the claimant had not proved that his accident was caused by a part of the kerb which amounted to a hazard or danger.

Lottie Winson