Mr John Thomas v Warwickshire County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WILKIE |
| Judgment Date | 31 March 2011 |
| Neutral Citation | [2011] EWHC 772 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 9MA 07098 |
| Date | 31 March 2011 |
[2011] EWHC 772 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
BIRMINGHAM CIVIL JUSTICE CENTRE
Priory Courts
33 Bull Street
Birmingham 7
Before: Mr Justice Wilkie
Case No: 9MA 07098
Mr Nigel Poole (instructed by Ralli Solicitors) for the Claimant
Miss Catherine Brown (instructed by Weightmans LLP) for the Defendant
Hearing dates: 15–16 MARCH 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
MR JUSTICE WILKIE :
The claimant suffered from a significant head injury when he lost control of and fell from his bicycle when riding with the Solihull Cycling Club on Sunday 16 th April 2006.
At the time of the accident the claimant was riding along Gospel Oak Lane, Pathlow, Stratford-on-Avon. It is alleged that the accident was caused by a defect in this highway which was dangerous.
The claimant's case is that the highway was in a dangerous condition in that there was present, and stuck to it, a spillage of concrete which the claimant contends was dangerous to cyclists using the highway and on which his bicycle foundered causing him to fall onto the highway when he was travelling at a speed of some 20 – 25 miles per hour.
The claimant's case is that the dangerous condition of the highway was due to the defendant's failure to maintain the highway in breach of its duty to do so under s.41 of the Highways Act 1980.
This is a trial of liability and contributory negligence (save in respect of the contributory negligence alleged on the ground that the claimant was not wearing a safety helmet). The issues which I have to decide are as follows:
i) Was the highway dangerous for traffic?
ii) Was the danger due to a failure by the defendant to maintain the highway ( pursuant to section 41 of the Highways Act)?
iii) Did the danger cause the claimant's accident?
iv) If the first three issues are determined in the claimant's favour, did the defendant nevertheless take such care as, in all the circumstances, was reasonably required to secure that the highway was not dangerous for traffic? This raises the question of the statutory defence provided by s.58 of the Highways Act 1980.
v) If the defendant is found liable to the claimant, should the claimant's damages be reduced for contributory negligence (save in respect of the issue referred to above which would be for trial on a later occasion)?
The claimant makes allegations based on the common law but these are not pursued as there is well established authority that the common law cannot give rise to liability where, in this context, there is no statutory liability.
The evidence
John Thomas (the claimant) has been a member of the Solihull cycling club since about 1992 and, until the accident, he would cycle approximately 15,000 miles per year. He has a high value racing bicycle with relatively narrow tyres and no tread, designed to increase speed with less effort, and drop handlebars. He is an experienced cyclist.
At approximately 11am on Sunday 16 th April 2006 he was with the cycle club cycling along Gospel Oak Lane. There were about 18 of them in the group. It was their intention to ride to Stratford-on-Avon, a distance of about 20 miles from their starting point. He recalls turning onto Gospel Oak Lane at which time the group was split into two separate groups. He was positioned towards the rear of the first group. There were cyclists in front of him and behind him. He was not wearing any form of protective headgear. He recalls being in rows of two, he being positioned on the outside his row but he has no recollection of the period immediately prior to and during the accident. He had not travelled often down that road and he has no recollection of having seen any concrete in the road before. When riding normally, he would have his hands on top of his handlebars more upright than if he was going faster when he would be holding the drop element of the handlebars. He cannot recall his position that day. On 3 rd July 2008 he made a statement in which he put his speed at between 25 and 30 miles an hour. In a later statement on 25 th November 2008 he said that he had been told that as a group they were travelling between 20 and 25 miles an hour. He agreed that his memory would have been better at the time he made his first statement and that, going downhill as they were at the point immediately prior to the accident, that was an opportunity to pick up speed.
When riding in a group he would normally ride some 5 to 6 inches from the back wheel of the bike in front of him. Not directly in line but offset.
Alan Thomson said that on that day he was one of approximately 20 cyclists cycling in a group which included the claimant. He witnessed the accident. They were cycling along Gospel Oak Lane and, as the road bends to the left and drops steadily downhill, there was a piece of concrete adhered to the road. The claimant's bike hit the concrete causing him to lose control before falling off and hitting the road hard enough to knock him unconscious. Mr Thomson phoned for an ambulance and he was taken to intensive care.
If they were not cycling along a major road they would cycle in ranks of two. Depending on how confident about the person in front of him was, his normal practice would be to give half a metre distance between him and the bike in front. They were travelling East to West along Gospel Oak Lane in ranks of two. Mr Thomson was in the rank immediately or one behind the claimant and on the inside. He cannot recall the claimant's position was on the inside or outside.
He had ridden along this road some 10 or 20 times. He had seen the concrete in that position prior to the day of the accident, maybe a year before, maybe longer. The normal practice is that, if there is a pothole or a defect in the road, people in the front of the group would shout that there is an obstacle and where it was. The message should be passed down the group but this doesn't always happen. He cannot recall any warning being conveyed on this occasion, although he knew there was an obstacle and had been looking for it. He heard the sound of the claimant's wheel hitting the concrete. When the wheel hits the concrete the bike stops and the rider carries on and he saw the claimant moving across the road. He ended up in the centre of the road, further down the hill from the concrete, in a foetal position, unconscious with two rivers of blood going down the road. Mr Thomson was going about 20 miles an hour. He didn't think it was as fast as 25 to 30 miles an hour. He had the impression that the claimant turned in the air and hit the ground backwards. He heard his bicycle hit the concrete. He couldn't see what else he could have hit. Gravel can cause a cycle to lose control downhill turning on a loose surface but he didn't see any gravel there and if the bike had made contact with the wheels in front it would have made a different sound to the one he heard. Whether or not an obstacle 25 millimetres high would cause difficulty depends on the angle the wheel hits it. Because the concrete was on a road which was going downhill round a bend, it was not easy to see it from a distance.
David Stanton was with the Solihull Cycling Club on that day with his partner Lucy Ryan though they were not cycling together. He did not actually see the accident because he was at the back of the group, about 30 metres away from the claimant. They were riding two abreast in Indian file. He was aware of something going on ahead and, when he arrived, the claimant was lying beyond the obstruction in the middle of the road on the outside towards the crown of the road. His head was pointing uphill back the way they had come.
He had ridden that road 2 or 3 times. He was aware there was a hazard on the hill at the top, someone may have mentioned that they should be careful going down there. He can't remember saying anything to the ambulance man about what had happened.
Lucy Ryan has been cycling with the club since 1997. She was with the cycle club group that day. She is familiar with the road, having cycled down it a number of times over the years. She is clear in her mind that the concrete shown on the photograph had been there for a number of years. She was one of the first on the scene to administer first aid. She reported the accident to the police after the accident had taken place, but not prior to the time of the accident. She had indicated to the police that the claimant's family would be taking it up with the council.
She was in the front of the group and did not see the accident. She had last cycled with the club in August or September 2005 when they had gone down that lane and the concrete lump had been there at that time. She couldn't recall anyone having given a warning call on this date about the presence of concrete on the road. Her recollection of having seen the concrete lump in that position is not affected by her expression of opinion immediately after the event that the claimant would be suing the council. She hadn't previously reported the obstruction. If she reported every pothole or obstruction she would never be off the phone. This was serious because of the accident and that was why she had contacted the police.
She agrees that the concrete on the road is obvious and you can't fail to see it if you are close to it but it is on a bend and you would not see it until up close. She would have been travelling at about 25 miles per hour near the front picking up speed as she descended. She hadn't spoken to the ambulance personnel when they attended.
Roger Harding is employed by the defendant...
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