Contributory negligence, cycle paths and pavements - a case review of Kotula v EDF PLC, Morrison Utility Ltd & Birch Ltd-

Alex Kotula v EDF Energy Networks (EPN) PLC, Morrison Utility Services Ltd,
and Birch Utilities Ltd

Court : High Court of Justice, Queen’s Bench Division
Judge : His Honour Judge Simon Brown QC
Date of accident : 28/9/06
Date of Judgment : 15/6/10

In this case the Claimant, Mr Kotula aged 24, was on his way home from work along Park Street, St Albans, at about 5 pm on 28th September 2006. He had his mountain bicycle with him. Park Street is a busy A-road often heavy with traffic including lorries and buses. It has a single carriageway in each direction and is quite narrow – each lane being between 2.85 and 3m in width. Chapter 8 of the Highways Streetworks manual suggests that the most hazardous carriageway widths for cyclists are between 2.75m to 3.25m. This is because overtaking vehicles are unable to maintain a decent separation from cyclists whilst overtaking. Carriageway widths of less then 2.75m generally inhibit overtaking.

It was the Claimant’s practice to cycle to and from work, and it was his evidence that along this particular stretch of road he generally cycled on the eastern pavement because it was safer than riding on the carriageway. There was no cycle lane.
On the day of the accident the eastern pavement had a large excavation in it where works had been performed to underground electric cables. The works had been commissioned by EDF Energy. The other two defendants were the subcontractors involved in performing the works. A traffic system with barriers and ramps had been erected around the excavation to prevent users of the footway falling into the works. Contrary to the Traffic Signs Code of Practice, however, there was an obstruction in the form of a wooden post which had been left in the middle of the traffic route between two barriers. This meant that there was significantly less than the minimum 1 metre gap to proceed through, as well as a kerb drop and a ramp to negotiate simultaneously.

The judge found that the Claimant had lost his balance whilst trying to get through the obstruction on the pavement, but that he had dismounted at the time. The Claimant fell into the road-side barriers and was struck by a passing HGV. The collision rendered him paraplegic.

The defendants admitted primary liability for the accident on the basis that their barrier system was a foreseeable hazard and that it was foreseeable that cyclists might use the pavement and be put in danger by it. They argued, however, that the cyclist was guilty of substantial contributory negligence even if he was only pushing the bicycle at the material time because the defective barrier system was obvious and he had probably been through it the day before. He could have used a different route, stayed on the road, or used the opposite pavement.

The judge held that the Claimant was not guilty of contributory negligence. He found that though he had been riding on the pavement prior to the streetworks, and such behaviour constituted an offence under s.72 Highways Act 1835, it was not causative of the accident because he had dismounted before proceeding through the obstacle. The Claimant was not contributorily negligent for having attempted to push his bicycle alongside him through the streetworks.
The judge also said :
“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”

The Claimant succeeded in obtaining judgment against the defendants with no deduction for contributory negligence.

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