Since the installation of the tram tracks in Edinburgh, it has been widely reported that the number of accidents involving cyclists has increased. Lady Wollfe recently decided the first cases to proceed to trial on this issue in Fairley and Lowdean against Edinburgh City Council et al. Damages were awarded to the injured pursuers. Does this now open the way for similar claims?
The action concerned two accidents which occurred in separate places, one outside Haymarket Station and the other on Princes Street, at the junction with Frederick Street. The issue to be determined 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.
Whether the features at each accident location constituted a hazard which posed a significant risk depended upon many factors. Having heard expert evidence, Lady Wollfe concluded that they did.
The defenders argued that even if that was the case, a roads authority had no obligation in law to protect road users against obvious dangers. The tram tracks were neither concealed nor hidden. The general risk they posed was similar to the risks created by manhole covers or potholes. This argument was rejected as being too simplistic. The tram tracks posed a continuing risk, running for some distance alongside a cyclist’s direction of travel.
The defenders accepted that there was a general risk when crossing the tracks but disputed knowledge of the hazards alleged at the particular location of each accident. However, Lady Wollfe held that the risk at both locations had been identified in advance by various Road Safety Audits carried out during the construction of the tram system, the results of which had been communicated to the defenders. She was also persuaded by evidence of articles disclosing a high number of cycling accidents allegedly caused by the tram tracks at the locations.
Furthermore, as the cyclists were forced to cross the tracks at too shallow an angle by the road layout, they were found not to have been at fault to any degree for the accidents having occurred.
Much of the media coverage following the issuing of the judgment has focused on the large number of claims which are “waiting in the wings.” However, it is expressly stated in the judgment that these two claims are not to be viewed as test cases. It was emphasised that the allegations made, did not permit a wholesale attack on, wide ranging review of, or general critique of, the overall design of the tram system. Other than where exploring the question of whether the risk of harm was foreseeable, the evolution of the tram system was irrelevant to the claims. Therefore, in order for other similar claims to be successful, the test identified by the court will required to be satisfied in relation to the specific location of any accident.
The parties agreed to use YouTube clips in court to show cyclists navigating the tram tracks outside Haymarket Station. Lady Wolffe reminded litigants that the production of internet material/footage is not self probative. To establish the existence of a webpage in evidence, parties should be prepared to (i) provide 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. While this may prove the existence of the material, any disputes regarding the accuracy of the content will be entirely distinct.
Lady Wolffe observed that portions of the expert reports and evidence which related to the evolution and general make up of the tram system at large were not essential for determination of the central issue in the cases. Consistent as they are with the approach of the Supreme Court in Kennedy v Cordia (Services) LLP, these comments serve as a reminder of the obligation on parties to ensure, as far as possible, that experts assist the court with evidence the judge requires in order to determine specific points in dispute.
The judgment has been welcomed by groups lobbying for increased safety for cyclists, particularly in Edinburgh, where bicycles account for approximately 10 per cent of traffic. However, it does not provide carte blanche for claimants involved in similar accidents to obtain damages from the relevant bodies. Instead, the framework to prove such claims is provided, which will require evidence pertaining to the specific accident location.
Val Pitt is a senior associate of Horwich Farrelly, Glasgow