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Fairley/Lowdean v Edinburgh City Council et al 2019 CSOH 50

July, 11, 2019

Lady Wollfe has now issued her judgment in the cases of Fairley and Lowdean against Edinburgh City Council et al holding that the road layout and presence of tram tracks at the locus of both accidents constituted a reasonably foreseeable hazard or significant risk of accident.

Since the installation of the Tram Lines in Edinburgh, it has been widely reported that the number of accidents involving cyclists has increased. These cases were the first of their kind to proceed to proof and concerned two accidents which occurred in separate locations, one outside Haymarket Station and the other on Princes Street at the junction with Frederick Street.

The relevant question for the court was whether the features identified at each of the specific accident locations presented a significant risk of harm to cyclists of which the Defenders knew or ought to have known. If there was a significant risk of harm, was that risk obvious to road users?

The court highlighted that whether the features at each accident location constituted a hazard which posed a significant risk of an accident depended upon many things. Expert evidence was led by both sides. Ultimately, the court held that, on the whole body of evidence, in each location the road layout and tram tracks constituted a hazard which created a significant risk of harm to the Pursuers.

The Defenders had argued that, even if the court accepted that there was a significant risk of harm, a roads authority had no obligation to protect road users against obvious dangers. The tram tracks were neither concealed nor hidden and the general risk they posed was similar to the risks created by manhole covers or potholes. The court rejected this argument, stating that it was too simplistic and highlighting that the tram tracks posed a continuing risk, running for some distance alongside a cyclist’s direction of travel and which the cyclist was obliged to cross at too shallow an angle.

The defenders accepted that there was a general risk posed to cyclists crossing tram tracks but disputed knowledge of the hazards alleged in the particular locations of each accident. However, the court found that the risk at the accident locations had been identified in advance by various Road Safety Audits which were carried out during the construction of the tram system, the results of which were communicated to the Defenders. Lady Wolffe found these RSAs were sufficient to establish knowledge on the part of the Defenders and noted that she was further persuaded by evidence lead regarding articles showing a high number of cycling accidents allegedly caused by the tram tracks in the particular locations in question.

Finally, as the court was of the view that the road layout forced the Pursuers to cross the tram tracks at a shallow angle, it rejected the Defenders’ argument that the Pursuers had contributed to their accidents to any degree.

Points of Interest: 

Future Claims

Much of the press attention following the issuing of the judgment has surrounded the large number of claims which are “waiting in the wings.”  However, it is noted in the judgment that parties had agreed that these cases were not to be viewed as test cases and the court emphasised that the Pursuers’ cases as pled did not permit a wholesale attack on, wide ranging review, or general critique of, the design of the tram system as a whole. Other than in exploration of the evidence relating to foreseeability of the risk of harm, the evolution of the tram system in general was irrelevant to the Pursuers’ actions. Therefore, for any future claims to be successful, pursuers will have to satisfy the test identified by the court in relation to the specific locations of their own accidents.

Experts

It is noted that Lady Wolffe was critical of the fact that a large portion of the expert reports and evidence in relation to the evolution of and general make up of the tram system at large was not essential for determination of the central issue in the cases.  These observations reiterate the remarks of the Supreme Court in Kennedy v Cordia 2016 UKSC 6 and serves as a reminder of the obligation on parties to ensure, as far as possible, that experts assist the court with the specific evidence the judge requires to determine the issues in dispute.

IT Issues – Internet evidence

YouTube clips were used to show cyclists navigating the tram tracks outside Haymarket Station. The clips were ultimately agreed by way of Joint Minute but their use has prompted some guidance from the bench as regards the use of this type of evidence in future. Lady Wolffe suggested that to establish the existence of a webpage, parties should be prepared to (i) establish the Unique Resource Locator (URL) (ii) produce a paper or electronic copy of what was obtained and (iii) lead evidence from the person who accessed and downloaded the material.  She commented that while this may prove the existence of material, any disputes regarding the accuracy of the content would be entirely distinct. These remarks suggest that the production of internet material/footage will not be self probative and parties will require either to carry our detailed investigations to obtain the information listed or agree the evidence between them, if the court is to give consideration to it.

    Publication Authors:

  • Val Pitt
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