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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AB v Inverurie Skip Hire Ltd [2019] CSOH 47

Case comment by Michael Way, advocate

Lord Bannatyne considers post-tender expenses following late disclosed surveillance

Facts

The pursuer suffered injuries in June 2015 following a fall from a lorry. Proceedings were raised in February 2017. Liability was admitted at an early stage, although contributory negligence and causation issues were raised. Statements of valuation of claim (“SVC”) were lodged by October 2017. The pursuer valued the claim around £2.5m. The defender around £270,000. The defender lodged initial reports covering psychiatry, neuropathology and pension loss. Various pre-trial meetings (“PTM”) were scheduled, then either cancelled or postponed by the defender. In February 2018, further reports covering neurology, orthopaedics and care planning were lodged by the defender.

A tender was lodged by the defender on 29 June 2018. The tender offered to settle at £225,000 – at just under 9% of the pursuer’s SVC. The pursuer did not accept the tender timeously. 9 months passed. On 26 March and 1 April 2019, the defender then lodged five surveillance reports, with accompanying DVD footage, and six further medical/care reports commenting thereon. At the PTM on 2 April 2019, the pursuer stated he intended to accept the tender. Formal intimation and lodging of the Minute of Acceptance followed on 4 April 2019.

Issue

The defender’s motion was for the expenses of process following the lodging of the tender on 29 June 2018. The pursuer opposed on the grounds that the ordinary rule that expenses follow success ought to be applied and the court ought to exercise its discretion relative to expenses due to the defenders, in a situation where the defenders were said to have disregarded the terms of a practice note and the terms and spirit of the Rules of Court (at [7]). The defender’s position was that the rules on post-tender expenses were long established general rules which should be applied accordingly (at [14]). The questions for the Court were, in essence:

1. Was the defender’s failure to disclose surveillance material sufficiently early causative of unnecessary procedure; and if so
2. Should the usual rules for post-tender expenses not apply?

Decision

Lord Bannatyne granted the post-tender expenses to the defender, applying the usual rules (at [41]). These rules are laid out at {4]-[5] of the decision.

The nature of surveillance evidence is such that, to be carried out effectively, it must be done in “circumstances where it is not disclosed to the pursuer” (at [24}).

Further to be “credible and convincing, the surveillance must be carried out: (1) on a number of occasions; (2) over a reasonably substantial period of time; and (3) up to a point as close as possible to the diet of proof.” (at [25]).

Lord Bannatyne accepted the pursuer’s contention that the Practice Notes quite rightly encourage early disclosure. However, in these particular circumstances early disclosure could not have been required. Practice Note No.1 of 2007 provided that failure to disclose might sound in expenses, unless there is a reasonable excuse. The Court was satisfied that these circumstances amounted to a reasonable excuse (at [30]).

The Court also considered that to allow the pursuer’s motion would, “considerably undermine the system of tendering” (at [27]). In an adversarial system of litigation there was no obligation on a defender to disclose all evidence pre-tender so that the pursuer could accept or reject a tender “in full knowledge of that evidential position” (at [32]).

Further, Lord Bannatyne considered there was no obligation to lodge any surveillance material pre-proof. It could have been used in cross-examination to challenge the pursuer’s credibility in any event (at [34]). The content of the surveillance could not realistically have been any surprise to the pursuer given both his own knowledge of his actions and the defenders pleadings (at [37]). That his agents might not have known is insufficient to displace the usual rules.

Analysis

This case turned on the particular nature of surveillance evidence. It might be that in a different situation, the Court might be more receptive to the otherwise well-founded submissions concerning the spirit of the rules concerning early disclosure.

However, in the circumstances the usual rule that post-tender expenses should be awarded to the tenderer held true. If there was no obligation to lodge any of the surveillance evidence pre-proof, then it could not be held against the defender for failing to lodge it until they did.

Counsel and agents for pursuers will have to be mindful of the fact that such surveillance can be, and is, carried out. An agent’s lack of actual knowledge of a pursuer’s actions will be unlikely to be accepted as a reasonable ground to argue that, had the agent actually known, a tender would have been accepted earlier. Accordingly, full and frank discussions with pursuers about such matters may be necessary.

Representation

Ampersand’s Brian Fitzpatrick appeared for the pursuer.

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