Cyclists win personal injury claims following accidents on Edinburgh tram lines

Elizabeth Fairley and Ian Lowdean sued Edinburgh Trams Limited, Transport Initiatives Edinburgh and Edinburgh City Council after being injured in falls in Haymarket and Princes Street.

The defenders denied liability, insisting the pursuers should have taken more care.

But a judge in the Court of Session ruled that in each case the road layout and tram tracks created a “hazard” which posed a “significant risk of accident”.

‘A danger to cyclists’

Lady Wolffe heard that both accident victims were injured while cycling across tram tracks in the city: Ms Fairley at Haymarket on 16 October 2013 - days after that section of the tram system had opened for road traffic - and Mr Lowdean at Princes Street on 22 October 2012 - a few months after it re-opened for public use.

Ms Fairley raised an action against Edinburgh Trams Ltd and the city council and Mr Lowdean sued Transport Initiatives Edinburgh and the council. 

Damages in the claims were agreed but liability was contested.

There were numerous other accidents involving cyclists and the tram infrastructure, but these two actions were the first of these claims to go to proof.

The pursuers claimed that it had been “well known for many years that the presence of tram tracks in an urban street poses a danger to cyclists” and that “tram lines pose a risk to cyclists if crossed at a shallow angle, including the risk of a loss of control and a fall to the ground”.

In 2009 the council had produced an advice video in the form of a cartoon, which purported to show a cyclist performing an unnaturally sharp turn to cross a tram track at 90 degrees.

Ms Fairley, an advanced nurse practitioner, was cycling from the Royal Hospital for Sick Children to her home in Corstorphine, travelling west from Morrison Street and passing Haymarket Station on her left when she came off her bike.

At the material time there was no dedicated cycle lane although there was a cycle lane which commenced in the taxi area, but this conflicted with a “keep right” sign and the defenders did not criticise her for not using the short cycle lane.

A cyclist travelling west beyond Haymarket Station is obliged at this point to cross two sets of tram tracks at an angle of about 30 degrees.

‘Thrown over and flung down’

Ms Fairley, who suffered facial and knee injuries in her fall, told the court how she had approached the tram lines at Haymarket with caution as a previous incident had made her aware of the danger of a wheel getting caught in the tracks.

She said: “I knew from that previous experience you had to cross them, if at all possible, at 90 degrees. It is not always possible, but anything to avoid your wheel getting dragged back into the tram tracks. It all happened in a split second. The bike got thrown over. I got thrown over to the right-hand side and fell on the road.”

A number of short YouTube clips were played during the proof, showing cyclists negotiating the busy traffic lanes and tram tracks outside Haymarket Station - some of whom slipped and fell.

The court was also referred to an article from the STV news website dated 21 June 2012, which noted the confusion caused to cyclists about the bike symbol in the middle of the right-hand lane of Princes Street, and which gave cyclists the impression that this was a cycle lane. 

Mr Lowdean, a professional golfer, was cycling east on Princes Street, just beyond the T-junction with Frederick Street, when his accident occurred. 

He was in the right hand lane in between the tram tracks, where there was a white line on the road coming across his lane, forcing him into the left lane.

He started to cross the left-hand tram track when his back wheel slipped and he was “flung down” hard on to the road near the pedestrian crossing.

Mr Lowdean, who suffered injuries to his hands and right knee, told the court that his wheel had lodged in the groove of the tram track and that this caused him to go over.

It was suggested to Mr Lowdean that he was not cycling carefully and not taking reasonable care for his own safety in the circumstances described, but he rejected these propositions.

The court also heard evidence from expert witnesses, but the judge observed that the defenders’ principal expert witness was reluctant to acknowledge evidence that might be perceived to be damaging to the defenders’ case, such as the “keep right” sign on the bollard at the entrance to the taxi area at Haymarket or the YouTube videos, adding that his conclusion that Mr Lowdean “elected” to ride in the right-hand lane was surprising given the cyclist’s reasonable explanation for doing so.

‘Significant risk’

In her written opinion, Lady Wolffe said: “In the 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. 

“The particular risk which presented itself to the road users in both locations was that of having to cross the tram tracks at too shallow an angle, and having to do so while following the expected line and direction of travel. This was not a consequence of their ‘electing to do so’. In each case, this was inherent in the tram infrastructure in those locations. 

“It follows that the pursuers have proved their essential averments, and that the road layout and tram tracks comprising this part of the infrastructure resulted in Mr Lowdean and Ms Fairley each being led into the unsafe situations I have described. Each pursuer was presented with a hazard or a significant risk of an accident and which, in their cases, materialised.

“The weakness in the defenders’ experts’ evidence was their failure to identify or consider this specific risk, or to do so as part of a multi-factored assessment of what constituted the risk to the pursuers in the real world. I do not find that this specific risk was obvious. Even if it were, the road layout and infrastructure afforded the pursuers little realistic chance safely to negotiate or avoid that risk.”

The judge also held that the risk posed to cyclists crossing the tram tracks was known to the defenders and therefore was “reasonably foreseeable”.

Lady Wolffe added: “In submissions, the defender submitted that each pursuer 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. 

“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. There is no other adminicle of evidence that supports any case of contributory negligence. 

“In the light of the evidence I have accepted and for these reasons, I have no hesitation in rejecting the defenders’ cases of contributory negligence. There was no breach of duty on the part of either pursuer; they bore no responsibility in law for the accidents that befell them.”

A further 39 claims by cyclists against the defenders, which had been put on hold, are now expected to proceed.