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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Kotula v EDF Energy Networks (EPN) Plc & Ors [2010] EWHC B11 (QB) (15 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/QB/2010/B11.html Cite as: [2010] EWHC B11 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		15 June 2010

Introduction

1. This is Judgment upon preliminary issue of liability listed to be tried on 8^th June 2010 with a time estimate of 6 days.
2. Primary liability and apportionment between Defendants were agreed during the course of the hearing leaving the Court with the sole remaining task of determining whether or not there was contributory negligence on the part of the Claimant.
3. The burden of proving contributory negligence rests upon the Defendants and the Defendants duly selected the 2^nd Defendants to undertake that task on behalf of them all.

Background undisputed Facts

4. The Claimant sustained serious spinal cord injury whilst passing through a traffic management system erected around an excavation by the Defendants in the pavement outside numbers 25 and 27 Park Street, St Albans, on Thursday 28^th September 2006. The accident occurred a little after 5pm.
5. There is a full file of photographs of the accident locus but the best ones depicting the scene are, not surprisingly, those taken by the police shortly after the accident.
6. Park Street, formerly known as Watling Street of Roman antiquity, is a busy narrow urban road with a small railway station.
7. The Claimant, who was just 24 years old (dob 12^th August 1982), lived at London Colney and had worked in Park Street for 2.5 years. He was an experienced cyclist but not on the roads. In August 2006, he decided to cycle to and from work. He chose a circuitous clockwise 8 mile route because of the gradients and the void left in the centre by the disused Elstree Aerodrome. His place of work was at 9 o'clock 'on the clock face' and his home was at 3 o'clock 4 miles apart.
8. His practice when leaving work was to ride north along the east pavement of Park Street up to the railway station where he joined the road.
9. The Defendants were undertaking repairs to a faulty electrical connector outside numbers 25 & 27, under this pavement which they had excavated on Tuesday 26^th September (i.e. 2 days before the accident) surrounding the excavation with barriers.
10. The Claimant passed through this pedestrian management system with his bicycle either riding or pushing it. This route was hazardous because it was narrow, curved, ramped, adjacent to the kerb drop, and obstructed by a metre high leaning permanent wooden post which was located in the middle of pavement between the plastic barriers. This left only a small half metre gap between the obstacle about handlebar height and the kerb. Counsel provided measurements of the gap between the post and the barriers in Opening. The distance to the kerb was about, or a little less than, half a metre but the distance to the barriers was greater by about 20 cms.
11. As he was passing through, for some reason, he fell into the roadside barriers onto the road where he was struck by a blameless Mercedes lorry being driven by James Johnson along the narrow southbound carriageway alongside the barrier system.
12. As a result of his contact with the lorry C sustained spinal injuries which have left him a T6 complete paraplegic. Just 24 years old at the time, he will remain dependent upon a wheelchair for the rest of his life as a consequence of his tragic accident.
13. He also sustained a relatively modest head injury in the collision. As a result he has no recollection of the material events.
14. There is no witness to the fall and the collision. The Claimant has no recollection; Mr Johnson says he "glimpsed" the Claimant well before he had entered the barrier area and just before the fall; and Anthony Ibbotson, who had a glass fronted garage shop overlooking the area, says he saw nothing at all.
15. Accident reconstruction experts, including Mr Jennings for the Claimant and Mr Runacres for the Second Defendants have produced helpful reports and agreement about the scene and the accident without being able to come to any conclusions about how it occurred.
16. The Defendants concede primary liability on the basis that they were in breach of duty owed to users of the pavement in failing to erect and maintain a pedestrian passage with a minimum width of 1 metre as required by the relevant code of practice for street works. However, they allege that the Claimant was guilty of substantial contributory negligence for riding his bicycle through the street works or for lesser contributory negligence if the court determines he was walking it through them at the time of his fall.
17. The Defendants primary case is that the Claimant had 'responsibility' for his accident by (1) negligently cycling upon the pavement and the street works management system, contrary to Section 72 of the Highway Act 1835 and the Highway Code or (2) carelessly walking though the area with his cycle either astride it or besides him.
18. The Claimant admits that cycling on the pavement is contrary to the law but denies he was doing so at the material time or that it would be negligent to do so or that it was causative of his accident.
19. The Court will therefore analyse the limited evidence in order to judge (1) whether the Claimant is partly 'at fault' for his 'damage' i.e. injuries and if so (2) what would be the 'just and equitable" apportionment of the 'responsibility' between the Claimant and the Defendants for that damage: Section 1 (1) of the Law Reform (Contributory Negligence) Act 1945.

Agreed evidence

20. The parties have agreed that

a. When the operatives employed by Morrison's left the site on Tuesday 26^th September 2006 at about 3pm the street works were arranged substantially as described in the statement of Mr Shaw at [2A/4.11./286] and illustrated in the diagram at 2A/136: details of the arrangement included no spoil on the pavement, post in situ, inner barriers close to excavation, passageway (estimated at 80cms wide) to the east of the post, footings to the outer barrier on the pavement.

b. The street works as encountered by the Claimant at the time of his accident were substantially as illustrated in the photographs taken by the police on the evening of the accident and as 'mocked-up' by Morrisons' operatives the next day (photographs in bundle 5 [5/4.1/115-123] & [5/4.2/124-128]): details of the arrangement included spoil on the pavement beside the excavation, post in situ, inner barriers moved towards the post (leaving effectively impassable gap on east of post), passageway to the west of the post, footings to the outer barrier in the road, blue ramp, no safety zone. They had probably been so since about 12:15pm on Wednesday 27^th September 2006.

21. The accident reconstruction experts agree the following. If, as now agreed, the outer barrier was located in the carriageway

a. the gap between the wooden post and the inner barrier "could not easily be negotiated by pushing a bicycle and would require the handlebars of the cycle to be lifted above the height of the barriers and post in order for the bicycle to pass through the gap. In our view it is very unlikely that a bicycle (of the type used by Mr Kotula) could be ridden through such a gap" [4/4.1/252 – para 1.8];

b. the gap between the wooden post and the outer barrier "might just be negotiable when pushing or riding a bicycle, although the difference in height at ground level would make such a passage precarious at best. There would be a possibility of the bicycle dropping off the kerb edge if it was being ridden, or if it was being pushed on the user's left hand side. If the cycle was being pushed on the user's right hand side, that would probably require them to walk with one foot on the kerb and one in the roadway" [4/4.1/253 – papa 1.10]

c. "Whilst it is a matter for the Court, in the opinion of the experts the pattern of damage to the lorry and to the temporary pedestrian barriers is indicative of Mr Kotula losing his balance and falling through the fencing into the side of the passing lorry. In our opinion it is unlikely that the lorry struck the barriers and pushed it (sic) into Mr Kotula's path" [4/4.1/253 – para 1.12];

d. "There is nothing in the physical evidence that enables us to identify whether Mr Kotula was riding or pushing his bicycle just before the accident occurred" [4/4.1/253 – para 1.14].

e. "The experts consider that the situation at the time [of the accident] presented a hazard to lawful users of the pavement" [4/4.2/260]).

Disputed evidence

22. The Claimants case is that he considered it dangerous to ride on the road in this area and safer to ride on the pavement and this had become his regular practice without mishap.
23. Furthermore it was his unchallenged evidence that it was his habit to dismount before proceeding through works set up on the pavement because of a bad experience he had suffered 3 to 4 years previously. On that occasion he had cycled through works and fallen into an unguarded excavation.
24. The Defendants rely on the evidence of Mr Johnson to refute this on this occasion. He says he saw the Claimant cycling on the pavement some distance before the street works commenced. It is not controversial that he was so cycling but the manner of it was. However, he also said he "glimpsed" the Claimant in his wing mirrors "riding" his cycle whilst passing through the street works.
25. Mr Johnson was very closely cross examined upon "discrepancies" between his naturally exculpatory statement under caution to the police shortly after the accident and his evidence to the court (NB here that no separate witness statement evidence was served). These are for the most part semantic differences.
26. In two significant matters, however, I find his evidence to be inaccurate which casts grave doubt upon his general reliability as an observer and his lack of true "independence" in an accident he was 'involved' in.
27. First, his evidence that the Claimant was cycling 'hunched over the handlebars' and 'head-down' whereas such a significant feature of his current account does not appear in his interview – the Claimant was not challenged on that.
28. Secondly, from the moment he saw the Claimant he regarded him as a hazard, and that he slowed down and steered away from the side of the road in response to the risk of injury even though the barrier was wholly on the pavement, whereas in interview he gave no answer to the question whether he slowed down save for stating, after an apparently embarrassed silence, that he drove according to the road conditions – implying that there was no hazard requiring him to slow.
29. Therefore whilst being questioned by the police he understandably sought to distance himself from the barriers making the cyclist the hazard, not himself and told the police that the barriers were on the pavement. The agreed evidence is that they were in fact out in the road along the kerb and the geometry supports that.
30. Otherwise, neither the Claimant nor anyone else would realistically have been able to attempt to get through the hazard. It is agreed expert evidence that if the outer barrier were located on the pavement "it would be difficult for an adult to walk through [the gap between the outer barrier and the post] and we suggest that it is a matter of ordinary experience that it would be very difficult to push, and probably impossible to ride, a bicycle of the type ridden by Mr Kotula through such a gap" [4/4.1/252 – para 1.9].
31. These street works were in situ on 26^th and 27^th September and the Claimant negotiated them with his bicycle on his previous journeys from work if, as I have no reason to doubt, he used the same route each day.
32. Whilst it is possible that Mr Johnson is correct on his "fleeting glimpse" through his wing mirrors, I do not believe it is probably what actually occurred.
33. The Claimant struck me as a sensible person who learns from experience. I accept his evidence that he habitually did not ride through road works after a previous bad experience let alone "really going for it … pedalling hard" as dramatically described by Mr Johnson to the police in his exculpatory interview under caution.
34. The geometry of the hazard as described by the experts strongly militates against Mr Kotula "riding" through the hazard. It would take an extraordinarily skilled cyclist to do so without any mishap. The evidence of Mr Ibbotson, who noticed nothing despite his good view, militates against it.
35. It is more likely that Mr Kotula either attempted to negotiate the hazard whilst astride his cycle, which might explain Mr Johnson's snapshot vision of him in his wing mirrors or pushed it through besides him which would leave very little standing space on the actual kerb. However, I am persuaded that the Claimant probably followed his usual practice of dismounting and was therefore a "pedestrian" lawfully on the pavement at the time of his actual fall and whilst he was passing through the street works.
36. Accordingly, I find that the Defendants have not proved that Mr Kotula was "riding" on the pavement through the street works or at the time of his fall from the pavement.
37. The Defendants also allege that the Claimant wrongly took himself and his cycle into the hazard created by them and should have used the road or another pavement route avoiding the street works.
38. I accept the Claimant's evidence that he was an experienced cyclist but new to riding along busy roads to work. In an era when ministers and local authorities are for various reasons – fitness, environmental and congestion – exhorting the public, including children, to cycle, it is surprising that there were no cycle tracks let alone lanes for cycles in the area giving refuge or right of way on pavements to cyclists.
39. This was a very busy road with many lorries using it.
40. The width of each carriageway on the relevant section of Park Street is between 2.85m and 3m. These are the most hazardous carriageway widths for cyclists (namely 2.75m to 3.25m – see Chapter 8 [2B/7/460 – para D3.32.14]).
41. Lorries such as Mr Johnson's using the road are around 2.5 metres wide almost filling a single carriageway. The evidence is that other cyclists use the pavements in the area and there are no satisfactory cycle lanes.
42. Mr Ibbotson's evidence that for the most part only 'serious' cyclists use the road encapsulates the issue. The reason can be inferred: only if a cyclist maintains the speed of the traffic flow can he avoid being overtaken.
43. In my judgment, this piece of road was dangerous for all but the most experienced, traffic fast, confident and dominant of cyclists i.e. the 'serious' cyclist as Mr Ibbotson puts it, as opposed to the ordinary prudent cyclist using a cycle to go to work encumbered with his cycle rucksack.
44. In my judgment, although it is illegal for cyclists to use the pavement (unless it is specifically sanctioned by a local authority for shared use), when weighing up the danger to himself (cp danger to pedestrians) it was a reasonable decision by the Claimant to ride on the pavements in this area rather than the road in the context of the duty of care owed to himself to take reasonable care for his own safety whilst cycling. In my judgment, although illegal and potentially negligent in any action vis a vis a pedestrian, it was not "blameworthy" in terms of negligence in contributory negligence.
45. The Defendant's also submit that the Claimant was negligent in using a pavement with street works upon it when there were other pavement routes available on the other side of the road. This would be akin to negligent navigation only with the benefit of hindsight, in my judgment.
46. In my judgment, this is devoid of merit. The route was not closed and indeed directed pedestrians (with or without cycles) along the route laid out by the Defendants. Moreover, the Claimant had probably used it without mishap for the two days previously. It is possible that can be explained by some changed features such as the barriers had been slightly moved or spoil placed elsewhere on those occasions but that is speculation. This was a convenient route for the Claimant from his place of work and there was no reason for him to deviate from it. He cannot be faulted for failing to find out alternative longer routes when the Defendants had signposted this one for pedestrians.
47. The pushing of the bicycle by the Claimant beside him would inevitably have been a contributory 'causative' factor in the accident as the agreed geometry of the gap between the wooden post and the kerb left the Claimant with little room to squeeze through without stepping or falling from the kerb. With the bicycle on his right hand side his handlebars/brake levers and/or pedals were liable to collide with the post and/or his own body, and he would probably have needed to place his left foot down the kerb into the carriageway or fallen or lost his footing. In addition the bicycle handlebars needed to be lifted over the post. If the bicycle had been on his left, it ran the risk of toppling over the kerb and colliding with the barriers and involving the Claimant in a collision with a vehicle in the road. A pedestrian without a bicycle would have been in a different position in terms of "causation": Lee v. Williams [2001] EWCA Civ 82.
48. In my judgment, the Defendants were wholly "responsible" for this accident in laying out a very hazardous multi-layered trap of a narrow path on a curve with a kerb across it for all pedestrians, including those just on foot, with children, with buggies, cycles, or prams besides a very busy road with no warnings and no safety zone between the barrier in the road and large lorries travelling lawfully along the road.
49. In my judgment, it is only with the benefit of cruel hindsight that it might be said the Claimant should have risked the danger on the road or the sanctuary of another pavement rather than this one. He should certainly not be held at all 'responsible' for electing for the wrong option when faced with such a dreadful hazard. Neither should he be criticised for momentary inadvertence, loss of balance or misjudgement whilst trying to negotiate this particular hazard (see Clerk & Lindsell, 19^th edition, at 3-63). Ironically, because of its narrowness, it might even have proved more difficult to negotiate on foot than astride a bicycle or riding it were that possible.
50. In any event, even if contributory negligence had been established here, the relative culpability and causative potency of the alleged negligent acts of the Defendants and the Claimant under the principles in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2KB 291 were such that those of the Defendants were overwhelming: their negligence potentially threw users of the pavement into the path of vehicles on the carriageway; whereas the Claimant was rightly or wrongly using the pavement in the first place to try and avoid uncomfortable proximity with those very vehicles.
51. Accordingly, the Defendants' plea of contributory negligence has not been proved and the Claimant does not bear any responsibility for his tragic accident.

His Honour Judge Simon Brown QC

15^th June 2010