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17 July, 2019

Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] CSOH 50 / Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50

Facts

Two cyclists (Ms Fairley and Mr Lowdean) suffered injury in accidents while crossing tram rails at an unsafe angle. Ms Fairley’s accident occurred outside Haymarket Station in October 2013.  Mr Lowdean’s accident occurred in Princes St in November 2012.

Risks

The pursuers identified two key risks posed by tram rails to cyclists: (1) a risk of the tyre or tyres slipping on the metal rails; and (2) a risk of the tyre or tyres becoming caught in the metal groove of the rail. There was no dispute that these risks can be minimised if the rails are crossed at right angles.  As the angle shallows so the risk of the wheel slipping or becoming caught increases.  Crossing at an angle lower than 45 degrees increases the risk of an accident to an intolerable level.

Duties

The pursuers maintained that the defenders [the roads authority] had a duty to take reasonable care to:

  1. Reduce to a minimum the risk presented by the rails to cyclists;

and

  1. Avoid creating or maintaining such a hazard in the design, construction and maintenance of the road layout for cyclists.

The defenders’ maintained:

  1. There was no duty to protect cyclists from an obvious risk
  2. The risk posed by the rails was obvious to a cyclist exercising reasonable care;
  3. Both accidents occurred because in each case the pursuer failed to take reasonable care for her/his safety
  4. Esto the defenders were liable to any extent, there was contributory negligence on the part of the pursuers.

Issues

Quantum was agreed in both cases. The Lord Ordinary formulated the question of liability as “whether the features at the two locations (Haymarket and Princes Street) presented a significant risk of harm to cyclists and of which the defenders knew or ought to have known”? [48]

Accordingly, the task for the Court was to decide in respect of each location:

  1. if there was a hazard posing a significant risk of an accident;
  2. if so, whether it was obvious; and
  3. what was reasonably foreseeable to or known by the defenders.

Decision

Lady Wolffe found liability to be established and granted decree in favour of each pursuer.

Both pursuers were found to be “credible and reliable in the essentials of their evidence” [170].  The Lord Ordinary found that the pursuers “sustained an accident in the circumstances they each described” [173].

In relation to Haymarket she found that there was no safe angle achievable for a cyclist who remained in the traffic lane as it crossed over the tram rails. [184]. The road layout constituted a significant hazard to cyclists. In relation to Princes Street the problem occurred because a cyclist would reasonably adopt a position in between the tram rails in the right-hand lane of Princes Street while heading east.  As a consequence, in order to cycle out from between the rails Mr Lowdean would have been unable to achieve an angle of 45 degrees.  Any angle he was able to achieve was below that threshold and unsafe {188]

Having considered the evidence, Lady Wolffe concluded that the road layout at Haymarket and Princes Street constituted a significant hazard to cyclists, which was “inherent in the tram infrastructure” [192].   The particular risk in both locations was being required to cross the rails at too shallow an angle and having to do so while following the expected line and direction of travel. [192]

The defenders’ contention that the risk was obvious and accordingly no duty arose was rejected. It was “too simplistic” to note that the rails were not concealed.  The risk was posed by tram rails in the roadway running for some distance alongside a cyclist’s direction of travel and which the cyclist is obliged at some point to cross at too shallow an angle. [193] [194].  In any event even if the risk was obvious the road layout and infrastructure afforded the pursuers little realistic chance safely to negotiate or avoid it. [194]

The specific risks at both locations were known or reasonably foreseeable to the defenders. They had been identified in road safety audits carried out before the accidents [195].

Finally, the defenders’ pleas of contributory negligence were rejected. [200] – [204] The submission for the pursuers was that each pursuer was aware of the tram lines, knew of the need to cross them at as wide an angle as possible, and tried to do so at an appropriate speed in the road conditions at the time. Both pursuers did the best that they could under the circumstances.  It was not suggested to them in cross-examination that they had failed to take care in any specific respect.  There was no suggestion that they had failed in any respect to observe the terms of the Highway code [Rules 59 to 82 Highway Code 7/12] There was no evidential basis for any finding of contributory negligence.

Representation

Ampersand’s Simon Di Rollo QC appeared for the pursuers.

Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] CSOH 50

Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50

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