Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 92
PD1293/08	OPINION OF LORD BANNATYNE in the cause IAIN MORAY ANDERSON Pursuer; against THE SCOTTISH MINISTERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Allardice, Thompsons

Defender: Olsen, Morton Fraser LLP

26 June 2009

Background

[1] The pursuer was riding a bicycle in Holyrood Park on the cycle path. The path is occupied and controlled by Historic Scotland, a Scottish Executive Agency. The defenders are legally responsible for Historic Scotland. He came off his bicycle. He blames Historic Scotland for the accident and seeks damages for the injuries he sustained.

[2] The case came before me for proof. Parties were agreed that the value of the claim was £5,750 inclusive of interest at 26 May 2009.

[3] The basis upon which the pursuer blamed Historic Scotland was that he inadvertently left the cycle path at a bend and cycled into a sunken drain and gully which ran along the length of the cycle path at that point immediately adjacent to the said cycle path. The gully and drain were said to form an obvious danger which would have been identified by a properly conducted risk assessment. Historic Scotland were thus said to be in breach of their duties at common law et separatim the Occupier's Liability (Scotland) Act 1960 Section 2 (hereinafter referred to as "the Act").

Evidence Led

[4] On behalf of the pursuer evidence was led from the pursuer himself. He had no memory of the events immediately before the accident or of the accident itself. This was of some significance in relation to the disputed issues in the case. Three other witnesses were led on behalf of the pursuer the first two of which were a Mr Anthony Dick and his daughter Emma Dick. They were persons who were at the locus of the accident at the material time. Lastly on behalf of the pursuer evidence was led from an expert as to cycling skills and safety namely a Mr John Franklin. No evidence was led on behalf of the defenders.

Matters not in Dispute

[5] It was clear from the evidence and parties submissions that a number of factual matters were not in dispute namely:

That on or about 25 August 2005, the pursuer was cycling on the dedicated cycle path in Holyrood Park, Edinburgh, to the east of the Palace of Holyrood House.

That Holyrood Park is a scheduled ancient monument managed by Historic Scotland. That they constructed the cycle path in question in about 2003.

That the pursuer was cycling in an easterly direction along the cycle path adjacent to Queens Drive.

That he had an accident which involved him coming off his bicycle.

That it was about 9.30pm when he came off his bicycle and it was dark.

That no lighting was provided in the said area.

That the pursuer had two working lights on the front of his bicycle.

That the accident occurred at a bend where for a short stretch the cycle path veers towards the hill and changes to a different surface material.

That the surface of the rest of the cycle path is smooth asphalt covered with an anti-slip finish.

That the surface of the said short stretch is a "grass-crete type which is neither smooth nor even."

That the cycle path is at said locus 1.8 metres wide.

At about 1.8 metres after the change in surface and within the angle of the bend is a sunken drain at the end of a gully. The drain cover is immediately adjacent to the cycle track and about 20cm below its surface level.

That the pursuer was found after the accident in the vicinity of the drain and gully with his bicycle nearby.

Matters in Dispute
[6] Central to the case was the issue of whether the pursuer had proved that the cause of the accident was the drain and gully i.e. had proved that the bicycle had entered the drain and gully and this had caused the pursuer to be thrown from his bicycle.

[7] It was not disputed on behalf of the defenders that if that was proved to have been what happened then they should be held liable to the pursuer in damages. They accepted that the positioning of the gully immediately adjacent to the cycle path was an obvious danger.

[8] The second issue in the case was that if I held that the foregoing was the cause of the accident then it was the defenders' position that the pursuer was contributory negligent in allowing the bicycle to leave the cycle path and enter the drain and gully.

[9] The evidence on the primary issue was in fairly short compass:

The pursuer due to amnesia was unable to say how the accident had occurred. He was unable to say how, if at all, the bicycle had come off the cycle path. Nor was he able to give any reason for his having come off the cycle path. His last memory prior to the accident was of slowing down some distance before the locus of the accident because he considered it likely that he would meet joggers on the cycle path. His next memory was speaking to the paramedic following his accident. The only other evidence he gave relative to this issue was that the bicycle was in good condition prior to the accident and following the accident both front forks of the bicycle had snapped.

[10] I have no difficulty in holding the pursuer to be a credible and reliable witness insofar as he was able to give any evidence regarding the disputed issues. He gave his evidence in a clear, careful and straight forward manner. I could see no reason for holding him to be either incredible or unreliable.

[11] Mr Anthony Dick was driving along the road (Queens Drive) beside the cycle path at the material time. He was travelling in the opposite direction to the pursuer.

[12] He saw the pursuer take what he described as quite a tumble. He saw the pursuer go head over heels over the handlebars. He described the pursuer as coming off the bicycle at speed. He said that the pursuer must have hit something hard as would not have been thrown in that way otherwise. He said the pursuer had hit something solid as the bike stopped dead. It was his position that he had not at the time seen what had caused the accident. However, when he went back to the locus of the accident to see if he could help the pursuer and examined the locus it was his position that the only possible cause of an accident of the type which he had witnessed was if the pursuer had entered the drain and its attached gully.

[13] The next witness was Emma Dick (the daughter of Anthony Dick) who at the material time was a passenger in his vehicle. She did not see the accident itself. She heard her father make some form of exclamation at the time of the accident. She saw the pursuer shortly before the accident. She said that he was not travelling fast or cycling erratically and there were no other cyclists on the path. She also went back to the locus and said that she put two and two together and considered that the gully containing the drain was the cause of the accident.

[14] Lastly regarding this issue John Franklin gave evidence. His position was that the damage to the bike 6/8 of Process was consistent with the bike stopping suddenly and a considerable force being applied to it and that the damage was consistent with the explanation of what Mr Dick saw of the accident.

[15] In addition, when a number of suggested alternative causes of the bike coming to a sudden halt were put to him on behalf of the defenders, Mr Dick's position was as follows: that if the chain on the bike had snapped or if the forks on the bike had snapped due to some fault in the forks themselves then the accident would not have looked as described by Mr Dick in that in both of said cases the bike would not have suddenly come to a halt but would have gone on for a short distance before coming to rest. In relation to the forks shearing due to some internal reason he said that this would have required great force and it would have been very unlikely that both forks would have sheared for internal reasons. Accordingly, as I understood, it Mr Franklin rejected the foregoing as possible causes of the accident witnessed by Mr Dick.

[16] As regards the subsidiary issue the evidence in relation to this was again in fairly short compass.

[17] The pursuer could give no evidence on this issue for the reasons I have already stated. Mr Dick was unable to give any evidence on this issue. Miss Dick gave certain brief evidence on this issue namely: that the pursuer was not cycling erratically or very fast when she saw him shortly before the accident.

[18] The only evidence on this issue came from Mr Franklin. In terms of his report (number 6/4 of Process) to which he spoke in the course of his evidence it was his position, first, that the section of cycle track at or about the locus had a different surface to that before and after it. While most of the track was a continuous and even hot rolled asphalt surface covered with a green coloured anti-skid finish, this section alone had a grey grass-crete type of surface which was neither smooth nor even but comprised a mesh of raised concrete squares which measured 5cm by 5cm in size, separated by a valley 3cm wide. The valleys were infilled to varying degrees with softer material up to about 25mm deep.

[19] Secondly, the transition between the main asphalt track and the grass-crete section took place as the cycle track changed direction and was without warning of any kind. He noted that in the dark the asphalt track reflected the small amount of light over spilling from the adjacent zebra crossing to a degree, but the grass-crete surface completely absorbed the light and from a practical point of view the surface was invisible. The nature of the surface could not be seen nor was it clear as to the direction of this section of track. Furthermore, a large rock by the road and close to the zebra crossing, used to position a traffic sign, cast a shadow from what light was present over the end of the asphalt track.

[20] Thirdly, the asphalt cycle path was only 1.8 metres wide (it should be a minimum of 2.5 metres wide) and there was no widening of the track through the bend as was recommended for cycle paths although the grass­crete section itself was wider at 2.5 metres. The change in direction was abrupt and without a transition curve.

[21] Fourthly, there were no hazard warning signs to alert cyclists to the change in direction, nor were there any edge or centre lines to assist or regulate cyclists in following the track, particularly at night. An edging strip, present alongside the asphalt track and which provided limited assistance in determining the course of the track, stopped completely at the bend instead of leading into and through it. The only marking in the area was a cycle way logo, but this was of little relevance to safety considerations.

[22] Fifthly, the cycle track approaching the accident location ran very close to Queens Drive and at night the glare from oncoming motor vehicle lights was a significant hazard. The degree of hazard was not constant but varied according to the vehicles present at any time, however the headlights were adjusted and whether drivers used them on full or dipped beam.

Submissions for the Pursuer

[23] On the primary issue counsel for the pursuer submitted to me that I should hold that the accident had occurred as averred on behalf of the pursuer on record. He submitted that having regard to the whole evidence the most likely explanation for the accident was the bicycle going into the drain and the attached gully.

[24] He invited me to accept Mr Dick as a wholly credible and reliable witness. He described him as wholly independent, he had no reason to lie. He submitted I should find him reliable. He submitted that he was not shaken in his evidence in the course of cross examination. His explanation of the cause of the accident made sense when looked at in the context of the whole evidence.

[25] He pointed to the evidence of Mr Franklin who had stated that the damage to the bicycle was consistent with Mr Dick's evidence of how the accident happened.

[26] He also pointed to a medical report of Mr Roy Mitchell, oral and maxillofacial surgeon (the terms of which were agreed in a joint minute between the parties) to the effect that the nature of the injuries sustained by the pursuer were consistent with the type of accident averred on record on his behalf.

[27] As regards the subsidiary issue of contributory negligence he reminded me that the onus of proving contributory negligence was on the defenders. His primary position on this issue was that there was no evidence which would entitle me to draw an inference that there had been contributory negligence on the part of the pursuer. It was his position that there was no evidence as to how the cycle came to be in the drainage ditch.

[28] Alternatively he submitted that if I was of the view that there was evidence from which I could hold how the bicycle had ended up in the ditch and if I were to hold that this resulted from behaviour on the part of the pursuer then it was his position that the behaviour of the pursuer amounted to no more than momentary inadvertence on his part and under reference to the opinion of Lord McCluskey in McNeill v Roche Products Limited 1989 SLT 498 at 504 that momentary inadvertence did not amount to contributory negligence.

[29] As regards the issue of fault it was his position that should the pursuer have established the accident occurred as set forth on record then the defenders were at fault. The only ground which he advanced in terms of those set out on record was: that it was a breach of common law and a breach of section 2(1) of the Act to have the drain and gully immediately adjacent to the cycle path and about 20cm below its surface. It was his submission on the evidence of Mr Franklin that this was an obvious danger.

[30] Mr Franklin's position in his said report to which he spoke in evidence regarding this was: a principle danger is the drainage gully and drain on the inside of the bend. Overrun accidents (when a vehicle passes over the road edge) are well recognised as an important safety problem for motor vehicles and various regulations are concerned with minimising their consequences. For example, verges must be compacted and lampposts placed a minimum distance from the road edge in order to minimise the impact on casualties. He went on to state that overrun accidents were no less a problem on cycle paths and were especially likely to result in serious injury if the front wheel of a bicycle is stopped suddenly by being trapped in an uncompacted verge or some other constraint, such as the drainage gully at the accident locus. It was his position that when such an accident happened it was inevitable that the cyclist would be thrown, most likely over the handlebars.

[31] For the foregoing reasons it was submitted that I should find in favour of the pursuer; hold that there was no contributory negligence on the part of the pursuer; and award damages in the sum agreed.

Submissions for the Defender

[32] It was the defender's counsel's primary submission that I should assoilzie the defenders.

[33] It was his submission that the pursuer had not established that the accident had happened as averred on record. It was his submission that the case before me was a purely circumstantial one. It was his position that the only real source of evidence from which I would be entitled to hold that the averred accident had occurred was the evidence of Mr Dick. It was his position that he did not challenge the credibility of Mr Dick. However, it was his position that Mr Dick could not be held to be a reliable witness.

[34] He submitted that looking to his whole evidence that Mr Dick had made an assumption from what he saw, namely, the pursuer going over the handlebars and then seeing the gully near to the locus of the accident and wrongly concluded that the cause of the accident was the bike entering the gully. He reminded me that Mr Dick had not seen what caused the accident, all he saw on his evidence was the result of the accident. He submitted that given that what Mr Dick said he saw must have happened quickly and, in addition, he would be unlikely to have been paying attention to what had happened in that he would be concentrating on his own driving it was likely his memory of the accident was faulty as to what had happened and reliance should not be placed on his said evidence. He also submitted that what Mr Dick had been asked to give evidence about had occurred a long time ago and that the passage of time between the accident and his giving evidence was a further factor likely to lead to his not remembering accurately what had happened. He submitted that his memory was clearly incomplete and there were certain matters it was shown from cross examination that he could not remember about the surrounding circumstances of the accident. For all of these reasons he submitted I should not accept him as reliable.

[35] As I understood it in relation to the other evidence upon which the pursuer's counsel had relied in the course of his submissions it was the position of counsel for the defenders that this evidence did not add anything to the evidence of Mr Dick and that it was Mr Dick's evidence which was central to the whole matter and that in the absence of accepting Mr Dick's evidence as reliable I could not hold the accident as averred proved.

[36] As regards liability (as I earlier stated) he accepted that if I held that the accident had occurred as averred then the defenders were liable for a breach of common law et separatim the Act given that this gully and drain were immediately adjacent to the cycle path.

[37] His subsidiary motion was that if I were not with him on his primary submission then I should hold the pursuer contributory negligent and in so doing I should hold that the degree of contributory negligence was high amounting almost to sole fault.

[38] In his submission, if the pursuer left the cycle track it had not been proven that this was due to headlight glare or some defect in the layout of the cycle path or in the way that the cycle path was constructed. However, on the assumption that he left the cycle path a clear inference arose in the absence of such mitigatory factors having been established pointing to a high degree of contributory negligence on the part of the pursuer in leaving the path and cycling into the drain and gully.

[39] It was his submission that the only inference which could be taken from the pursuer ending up in the gully was that he had been negligent in the way he had been riding his bicycle. The defenders' counsel submission was that in these circumstances it was a clear inference from his ending up in the gully that the pursuer had lost control of his bicycle due to negligence in the way he had been riding it and thus gone off the path. It was his submission that the most likely explanation for this was that he had been riding too fast and had gone off the path.

Discussion
[40] The first issue in the case was had the pursuer proved the accident which he averred on record. This turned to a material extent on the reliability of the evidence of Mr Dick regarding the circumstances of the accident.

[41] There was no dispute that he was a credible witness and I had no difficulty in holding him to be such. In addition I had no difficulty in holding him to be an entirely reliable witness as regards the circumstances of the accident.

[42] I found him to be a most impressive witness. He gave his evidence in a clear, thoughtful and straightforward way. There was no element of exaggeration or seeking to avoid difficult questions particularly in cross examination. Although the accident was some time ago he had a reasonably clear memory of the events of that night. Insofar as he was unable to remember certain details of the events that night these were in my judgment in relation to minor matters. In addition those matters in relation to which he had memory lapses, in my judgment, related to the types of points one would expect a witness of events some years ago to have no clear memory. His memory, on the other hand, of the central events of that night was good. He was not shaken as to the central core of his evidence at any point in the course of his cross examination. In particular he was not shaken as regards his account of how the accident had occurred. On the basis of the foregoing alone I was prepared to accept the evidence of Mr Dick as to how the accident happened.

[43] Moreover, in my view there was support for the evidence of Mr Dick as to how the accident happened from the following other sources:

i) That there was no evidence of any other possible reason for the pursuer's accident. There was nothing in the evidence as to the way the pursuer had been riding his bicycle in the lead up to the accident which was likely to have caused the accident. On the evidence it was not shown that there was any other obstacle or other user of the cycle path which was likely to have caused the accident.

ii) It was my judgement that in relation to the two possible alternative causes of the accident which were put forward on behalf of the defenders in the course of the proof that there was no evidence from which I could infer that either of these caused the accident. There was no evidence that the front forks of the bike had fractured due to some fault within the metalwork of the forks themselves. Mr Franklin's evidence was that a fracture of both forks due to such a problem in the metalwork was unlikely and particularly unlikely to have resulted in the fracture of both forks. In any event it was his view this would not have produced an accident of the type spoken to by Mr Dick. Secondly, a broken chain according to Mr Franklin would not have produced an accident of the type spoken to by Mr Dick.

[44] I accepted Mr Franklin's evidence in relation to these possible two alternative causes of the accident as I accepted his evidence on all matters. He was an impressive witness. He had considerable expertise in the area upon which he was giving evidence. He gave his evidence in a clear fashion. The points which he made in the course of his evidence were well reasoned and fully supported. He was not shaken in cross examination. He carefully and fully answered all questions put to him in cross examination. There was in addition no contrary expert evidence put to him which in any way challenged the points which he was making in evidence. Although the defenders had an expert witness he was not led.

[45] Thus in my judgment the surrounding evidence excluded any cause of the accident other than that spoken to by Mr Dick and this in my judgment supported his reliability and pointed very clearly to the cause of the accident being as spoken to by him.

[46] In my judgment the expert evidence of Dr Franklin to the effect that the damage to the bike was consistent with the explanation of the accident given by Mr Dick also supported Mr Dick's evidence.

[47] The evidence of Miss Dick, although she did not see the accident itself was to the effect that having looked at the locus of the accident she independently came to the view that the cause of the accident was the bicycle entering the gully and drain. This in my judgment also supported the evidence of Mr Dick. I found her to be a credible and reliable witness. There was nothing in her evidence or in the way she gave her evidence which caused me to think that she was anything other than wholly credible and reliable. In particular she was also not shaken in cross examination. She gave her evidence without exaggeration.

[48] Accordingly I could find no reason to hold that the core of Mr Dick's evidence as to the cause of the accident was other than wholly reliable. Further as I have stated there were substantial reasons for holding that his evidence on these matters was wholly reliable.

[49] Having held that Mr Dick was a reliable witness and having regard to his evidence and the whole other evidence in the case to which I have referred and which supported him it is my judgment that the cause of the accident was clearly established to be the bicycle leaving the cycle path and entering the drain and attached gully which then caused the pursuer to be thrown from the bike.

[50] It was accepted by counsel for the defenders, as I have said, that if I held that the cause of the accident was the entry of the bicycle into the drain and attached gully which then caused the pursuer to be thrown from the bicycle then the defenders were negligent both at common law and in terms of the Act. He accepted, as I have said, that the siting of the drain and gully immediately adjacent to the cycle track was an obvious danger and that if that were the cause of the accident then the defenders should be found liable, subject to his argument that the pursuer had been contributory negligent.

Second Issue: Contributory Negligence

[51] It was accepted by counsel for the defenders that the onus in establishing contributory negligence was on the defenders. I am of the view that they failed to establish contributory negligence.

[52] The starting point for counsel for the defenders was that if the pursuer's bicycle ended up in the drainage channel and had accordingly left the cycle path then the reasonable inference in the absence of any cause such as the pursuer being dazzled by headlights, the poor layout of the cycle path or the nature of the construction of the cycle path having been proved to have caused him to leave the cycle path he had been negligent. In my opinion this submission was incorrect.

[53] As to why the pursuer left the cycle path this was not established on the evidence before me.

[54] A number of possible reasons were suggested in the course of the evidence:

the pursuer being dazzled by oncoming headlights; the layout of the cycle path at the locus which was the subject of detailed criticism by Mr Franklin as I set out earlier in this opinion; the lighting at the locus or more precisely the lack of lighting at the locus also the subject of criticism by Mr Franklin as I set out earlier in this opinion; the nature of the surface of the track at the locus again the subject of detailed criticism by Mr Franklin as I set out earlier in this opinion; the pursuer cutting the corner; the speed of the pursuer at the relevant time or a combination of some or all of these factors.

[55] Not all of these causes would give rise to a finding of contributory negligence. Thus if the pursuer was dazzled suddenly by headlights or the layout of the path or the surface of the path or the lack of lighting or some combination of these had caused him to leave the cycle path, then his leaving of the cycle path could not be said to be due to his fault. Therefore given that it was not proved what had caused the pursuer to go into the drain and its accompanying channel it was in my judgment not established that he had been contributory negligent. As I have said there were clearly reasons for the pursuer leaving the cycle path which would not have, if proved, caused me to hold that he was contributory negligent. Equally, on the other hand, I accept there were reasons for him leaving the track which, if proved, could have caused me to hold that he was contributory negligent e.g. excessive speed. However, in circumstances as here where it was not proved why he had left the cycle path and where the onus in proving contributory negligence is on the defenders I could not hold that it was established that the pursuer was contributory negligent.

[56] There was a subsidiary argument put forward on behalf of the pursuer that even if I could hold that the pursuer had misjudged the corner and gone off the path this amounted to no more than momentary inattention and did not amount to contributory negligence particularly given the various criticisms made by Mr Franklin of the layout of the cycle path at the locus and the fact that the channel and drain are right at the edge of the cycle path leaving no real room for error on the part of the pursuer. In support of this I was referred to McNeill v Roche Products Limited Supra. In my judgment that case can be distinguished from the instant one. That was an action brought in terms of section 14 of the Factories Act 1961. At page 504 Lord McCluskey quoted from the speech of Lord Wright in Caswell v Powell Duffryn Associated Collieries Limited at page 176 in which Lord Wright stated:

"That the Tribunal of fact has to draw the line between mere thoughtlessness or inadvertence on the one hand and real negligence on the other and to give due regard to the actual conditions under which men work, to the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation and other such factors. The authorities illustrate the point that, particularly in a case where the employers are in breach of their Section 14 duty, the Court must be cautious about making a finding of contributory negligence against a workman based simply upon his departing marginally from the ordinary routine. The whole purpose of a provision such as Section 14 is to avoid the risk of accident to the inadvertent workman or passer by."

[57] I do not disagree with anything that was said by Lord Wright in his speech. However, in my opinion his dictum is made in the context of section 14 type provisions the specific purpose of which is to protect the inadvertent workman. It in my opinion cannot be extended to the situation of someone driving either a car or riding a bicycle. In my view if such a driver or rider has a lapse of attention resulting in him leaving the road then that would amount to negligence on the part of the driver or rider even if that inadvertence was only momentary. The driver or rider has lost control of his vehicle or bicycle. In these circumstances in my view he would be negligent. Thus had I held that the cause of the pursuer leaving the pathway was entirely due to his misjudging the corner or due to his going too fast through the corner I would have held him to be contributory negligent. However, in my judgment neither of these was proved. I would say that had I held that the pursuer was contributory negligent due to either or a combination of these reasons I would have held his contributory negligence to be at the lower end given the whole evidence as regards the layout of this bend; the lighting at the locus; the nature of its surface; and the proximity of the gully and drain to the track which left no run off space at all for a cyclist.

Decision

[58] In these circumstances, the pursuer's case succeeds. I will pronounce decree for the agreed sum of damages.