Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council

Elizabeth Fairley v Edinburgh Trams Ltd and City of Edinburgh Council [2019] 

Iain Lowdean v TIE Ltd and City of Edinburgh Council [2019] CSOH 50

SUMMARY

Elizabeth Fairley and Ian Lowdean sued Edinburgh Trams Limited, Transport Initiatives Edinburgh and Edinburgh City Council after falling from their bicycles as a result of the tram tracks and suffering injury.

Ms Fairley came off her bicycle when her wheel became trapped in the tram tracks outside Haymarket Station on 16 October 2013. She was crossing with caution due to a previous incident but her wheel still slipped and she was thrown into the middle of the road.

Mr Lowdean's incident took place on Princes Street just beyond the junction with Frederick Street on 22 October 2012. The road markings direct traffic from the right hand lane to the left hand lane and there is also a white arrow located between the tram tracks pointing at an angle to the left hand lane. He proceeded with caution and attempted to cross over the tram tracks at a wide angle but as he did so his rear wheel slipped and he was thrown from his bicycle. 

Both Ms Fairley and Mr Lowdean knew that cycling across tram tracks at any angle less than 45 degrees increased the risk of an incident occurring as their bicycle wheels are more likely to get caught or slip and lose grip. However, they argued that the road layout, road markings and traffic conditions made the tram tracks a hazard to cyclists by guiding them across the tracks at shallow angles.

The question for the court was whether or not the two locations, Haymarket and Princes Street, presented a significant risk of harm to cyclists that the Defenders ought to have known about.

The amount sued for damages was agreed but liability was disputed.

DECISION

Both cases were heard by Lady Wolffe at the Court of Session in Edinburgh. These were the first of the tram track cases to go to court.

In submissions, the defender submitted that each pursuer had failed to take care for his or her own safety. However, there was no specification of how or in what manner they had failed to do so.

Lady Wolffe found the defenders to be liable and awarded full damages in favour of each pursuer saying: 

"I have considered the evidence about the few specific steps it was suggested they could take, and concluded that the evidence does not support the defenders' cases of contributory negligence against the pursuers." 

Both Pursuers had done all they could do for their own safety and had not contributed to their accidents in any way. Full damages were awarded to each Pursuer.

In her opinion she stated, “In light of the evidence I have accepted, I find that in each location the infrastructure comprising the road layout and the tram tracks posed a relevant hazard to each of the pursuers. Traffic conditions contributed to this hazard, to the extent it further constrained the pursuers’ choices.”

In Ms Fairley’s case, there was no safe angle achievable for a cyclist to cross the tram tracks at Haymarket. In Mr Lowden’s case, due to the layout of the road, including road markings, and with many bus stops on Princes Street, this meant cyclists would have to cross the tram tracks to navigate the street.