22 November 2013

No head room: cyclist hits low railway bridge

Hackney Marshes has a railway line which runs north south.  The railway travels over a number of rights of way which enables walkers and cyclists to travel east west between Hackney and Walthamstow.
On Good Friday 2011 at 10.30pm James was cycling with a group of half a dozen friends across the marsh along a route designated a national cycling path.  The cycle route went underneath the railway line.  The railway bridge was very low allowing only 140cm or so between the path and the railway bridge.  In other words, as a cyclist, to negotiate the railway bridge either you had to duck or dismount to avoid colliding with the bridge. 

One of the low railway bridges over Hackney Marsh
The cycle path was lit underneath the bridge but not on the approach .  There were no warning signs nearby.  The bridge, however, did have yellow hazard paint marked out along its side. 
James was the fourth rider to approach the bridge.  He did not see the bridge.  His head collided with a steel girder protruding about 10 cm  and he sustained significant facial injuries including a broken nose and a deep laceration. 

James instructed Dowse & Co to pursue a claim for damages. 

The London Borough of Waltham Forest was the Defendant and disclosed documents regarding the maintenance of the railway bridge and the cycle path.  It became apparent that consideration had been given to excavating out the cycle path to create more headroom thereby to in part reduce the risk of accidents.  The works had not progressed, however, because of concerns about the risk of flooding that might arise as a consequence of deep excavations. 

The council admitted primary liability but argued that James was partly to blame for the accident and should therefore accept some contributory fault.  We agreed a split on liability of 75%:25% in favour of James.  A consequence of such an agreement would be to reduce James’s total damages recovered by 25%.  In the circumstances, it was difficult for James to argue that he was not partly responsible for the accident.  Three of his friends had safely passed under the bridge in front of him and had he paid more attention he no doubt would have avoided the collision. 

On the other hand, the council were at fault because they knew from previous incidences that there was a real risk of collision due to the low bridge, and could have taken some simple and cheap steps to reduce that risk by, for example, improving the lighting of the bridge at night time and putting up better notices to warn approaching cyclists. 

While liability was agreed early on, there was a dispute about the assessment of quantum.  The insurers acting for the council undervalued the claim and James, on advice, issued court proceedings with a view to asking the court to assess quantum in the absence of agreement between the parties.  In the event, shortly after proceedings were issued the Defendant improved their offer and the claim was settled for just under £9,000 and the defendant had to pay James’ legal cost.

Cyclists are vulnerable road users.  They are particularly at risk of injury due to design and maintenance defects with roadways.  James’ case was plead as common law negligence and under the Occupiers Liability Act.  The cycle path and bridge was a real risk to cyclists,  was under the control of the council,  and it was foreseeable accidents might happen.

The council might have argued that they had no duty however to maintain a right of way because in James exercising his right of way the council could not have the required control to be responsible for making the route safe for cyclists. They did not pursue such a defence probably because they had previously taken steps to improve and maintain the cycle route and in so doing would be held to have taken on a duty of care towards cyclists on the route: a duty  which they would not be allowed to walk away from subsequently.

If you have suffered injury due to road defects or obstacles in your path  please call us for a free consultation on 0207 254 6205 regarding whether you may have a claim for compensation for any losses and injuries suffered.