Court of Appeal remits dispute over cycle superhighway injuries for fresh hearing

Giving judgment, Lady Justice Yip said: “I have considered carefully whether it would be appropriate for this court to conduct that evaluative assessment to remake the decision on breach.

“However, the conclusion depends on a full assessment of the evidence and on judgments about risk, design, practicality, causation and contributory negligence which are closely interrelated.

“I do not consider it possible for this court properly to make the assessment on the basis of the judge's findings of fact. All matters will therefore need to be reconsidered together at a fresh hearing.”

The claims were brought by cyclists Cairn Young and Egon Upitis who were both injured in separate accidents on a cycle lane in Farringdon Road, central London, designed and operated by TfL.

Both collided with a raised kerb separating the carriageway from the cycle track because they mistook the kerb for a white road line and did not notice that the cycle track was raised above the height of the carriageway.

HHJ Hellman had found TfL liable for the accidents as it had created a reasonably foreseeable risk of injury and could have taken mitigation measures.

He found contributory negligence of 65% by Mr Upitis and 70% for Mr Young.

TfL challenged the finding of primary liability and the case was transferred up to the Court of Appeal because it potentially involved legal issues of wider importance and consideration of a possible tension between Yetkin v Mahmood & London Borough of Newham [2010] EWCA Civ 776; [2011] QB 827 and other authorities.

Yip J said it became apparent the perception of tension between Yetkin and other cases was misconceived and “the legal principles applicable to this case are straightforward and largely capable of agreement between the parties.

“Further, the decision was one made on the facts, as they specifically applied to this particular location.”

She said the real issues at trial were: did the construction of stepped cycle tracks, specifically the layout adopted at this particular location, give rise to a foreseeable risk of injury; if so, were there steps which TfL should reasonably have taken to ameliorate that risk; was the failure to take such steps causative of the accident; were the cyclists contributorily negligent?

The court was told how confusion over the stepped cycle track and different carriageway heights in the road had perplexed both riders at night so that the front wheel of each respondent's bicycle struck the kerb, causing both to fall off and suffer injuries.

HHJ Hellman had found the surface of the stepped track appeared very similar to the carriageway and the kerb looked similar to a white road marking and when approaching from one direction it would be easy to mistake it for a continuous white line.

It was therefore reasonably foreseeable some cyclists would make that mistake, he said.

HHJ Hellman found TfL under a common law duty to road users not to construct cycle lanes such as to give rise to a reasonably foreseeable risk of harm to them and said TfL should have installed wands to create an impassable barrier at the relevant point.

Yip J said: ”Thereafter, the judge's exposition of the law was not always as clear, and parts of the judgment elided principles relating to duty with issues concerning breach.“

She added: “In my judgment, the judge moved too quickly from foreseeability of harm to the availability of a further precaution to his finding of breach.

“He did not sufficiently explain why the risk, assessed against the high volume of use, the design purpose of the stepped cycle track, the applicable guidance, the prior audit consideration and the consequences of a barrier solution, made it unreasonable for [TfL] not to take the further step identified.“

Yip J said HHJ Hellman erred as although TfL owed a duty of reasonable care this did not require it to guard cyclists against every foreseeable risk arising from error or confusion.

The exercise required should have been fact-sensitive and evaluative.

She ordered a fresh hearing before a different circuit judge, but added: ”I would encourage the parties to consider alternative dispute resolution.

“This is not a case that raises novel points of law or that is likely to set a precedent for other claims. In truth, the claims are ordinary County Court personal injury claims depending on the application of established principles to the facts, and concerning this particular location only.”

Lord Justice Stuart Smith and Lord Justice Bean both agreed.

Mark Smulian