Duty of Care Owed to a CyclistNov 05, 2018
A recent case in the High Court has examined the local Highway Authority’s duty of care owed to a cyclist. The facts concerned a charity cycling event organised by Ride London and the race involved 16,000 participants cycling some 100 miles. One of the competitors hit a depression in the tarmac which was at least 30mm deep. This caused him to fall off his bike and injure himself. The claim was initially successful and the cyclist was awarded £38,000 in damages.
The Highway Authority, Surrey County Council, felt that the Judge had applied the wrong legal test in deciding whether or not there was a breach of duty entitling the claimant to compensation.
The High Court who heard the Appeal took the opportunity to re-examine some of the previous case law for accidents of this kind.
The High Court confirmed that the legal test to be applied in considering whether the Local Authority has breached its duty of care has been explained and developed over the years. The Judge was keen to stress that although it was reasonably foreseeable that any defect in the highway however slight might cause an injury that was not the legal test for determining whether it was dangerous.
The correct test: The defect has to be the sort of danger which an Authority might reasonably be expected to guard against.
The Court referred to a Court of Appeal Case from 2008 called Jones -v- Rhondda Cynon Taff County Borough Council. In that Case, a fireman attended a minor fire which had been set on a riverside footpath running beneath a bridge in the Welsh Valleys. As the fireman was attending to the fire, his left foot slipped off an eroded area of the footpath and he injured his left ankle. The Court of Appeal confirmed in that case that although the Local Authority had an absolute duty to main the public highway, it was an absolute duty only in the sense that it was not merely a duty to take reasonable care, but a duty to ensure that the highway was maintained to an objectively reasonable standard. The Court confirmed that the foreseeability of harm from a defect will not lead to the conclusion that the highway is unsafe. The Court referred to an earlier Case from 1993 where a Court of Appeal Judge said “in one sense it is reasonably foreseeable that any defect in the highway however slight may cause any injury but that is not the test as what is meant by dangerous. It must be the sort of danger which an Authority may reasonably be expected to guard against”. In the fireman’s case because the path was very rarely used, it was generally in good repair and there was ample room for passing and repassing and the fact that the erosion of the riverside was perfectly obvious the Court decided that there was no duty on the Local Authority to repair that defect and accordingly the fireman’s claim was lost.
Returning to the facts of the cycling event Case, although the Court felt that the Judge had actually applied the correct legal test they were unable to reconcile his findings on liability with the evidence. The fact that 12,400 cyclists have passed successfully was important evidence in determining whether the road was dangerous. Although the Judge had referred to this he hadn’t really explained how he had taken it into account when reaching his conclusion that the defect may be very dangerous. In other words, it was difficult to see how the road could be dangerous if 12,400 cyclists had passed it safely.
This case shows that claims against the Local Highway Authority can be difficult and it is important to use specialist solicitors when pursuing a case so that your case can be put on the strongest possible terms.