11 July 2019

The difficulties and delays surrounding the construction of Edinburgh Tram Project are well known and have been widely reported since work began in June 2008. Fast forward 11 years and the tram network is operational, though that has not been without its problems.

The Court of Session recently handed down its opinion in Elizabeth Fairley and Iain Lowdean-v- TIE Limited and Edinburgh City Council 2019, the first of many claims brought by cyclists claiming to have sustained injuries when crossing tram tracks on their bicycles in Edinburgh City Centre.

Ms Fairley and Mr Lowdean’s accidents occurred at different times and at different locations on the tram network. Their cases were heard together due to the overlap in factual and expert evidence led. Damages were agreed in both cases. Liability and contributory negligence were in dispute. The pursuers’ case was that the layout of the road was such that the presence of tram tracks in the roadway presented a hazard to cyclists which was reasonably foreseeable to the defenders.

The defenders’ position was that they had carried out a ‘balancing act’ and had provided designated cycle lanes where possible; that a consultation had taken place with cycling bodies and training had been provided; that the tram tracks in the road way ‘were or ought to have been’ obvious; and that it was not reasonably practicable to provide road markings at every section of the network where a cyclist might cross the tracks. The defenders’ position was that if they were at fault, the pursuers were also to blame for failing to take reasonable care to cross the tracks at an appropriate angle.

Lady Wolffe held that the issue to be determined was ‘whether the features at specific locations presented a significant risk of harm to cyclists and of which the defenders knew or ought to have known.’ Expert evidence was led by both parties. Both pursuers gave evidence. The opinion runs to 91 pages which includes a complete overview of the evidence led from both factual and expert witnesses. 

The key points from the opinion can be found at paragraphs 167 to 205 and are as follows:-

• The infrastructure comprising the road layout and the tram tracks posed a relevant hazard to each of the pursuers.
• The road layout meant that cyclists were forced to cross the tram tracks at a shallow angle and risk their wheels becoming trapped in the tracks.
• The risk was not obvious and cyclists had little chance to avoid the risk.
• The defenders were aware of the risk.
• There was no contributory negligence on the part of either pursuer.

A link to the opinion can be found here

Contact: Wendy Thomson Partner & Solicitor Advocate T: 0131 222 2939 E: wjt@bto.co.uk