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 |
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.
