William Brown v Morgan Sindall Construction and Infrastructure Ltd

A party that creates and controls a temporary highway traffic scheme remains responsible for ensuring that its implementation and maintenance are reasonably safe, despite consultation with highway authorities and specialist contractors. A scheme may be justified in principle by the need to protect cyclists, deter motor traffic and preserve emergency access. That justification does not extend to leaving an unmarked hazard on the carriageway after a detachable bollard wand has been removed. Once a recurring risk is known, reasonable inspection, monitoring and remedial measures are required. Limited contributory negligence may arise where a claimant cycles close to a marked lane division, but the deduction must reflect the particular visibility and foreseeability of the hazard.

The claimant was injured when cycling through a temporary two-way cycle lane beside the defendant’s construction site. He alleged negligence and public nuisance, asserting that his bicycle struck the unmarked base of a traffic bollard whose detachable wand had been removed. The defendant relied on the involvement of its specialist contractor, consultation with the local authority and Transport for London, the need to deter motor vehicles, emergency access requirements and compliance with the Safety at Street Works and Road Works Code of Practice. It also alleged exaggeration and fundamental dishonesty concerning the claimant’s injuries and losses.

The central issues were causation, the defendant’s responsibility for the traffic scheme, negligence and nuisance, contributory fault, the claimant’s disability and the assessment of damages.

1. Liability. The claimant proved that he fell after striking the base of a Kingpin cylinder whose wand was missing. The dark, unmarked base was not clearly visible and constituted a hazard to cyclists.
2. The defendant retained responsibility for the scheme. Collaboration with the local authority, Transport for London and the specialist contractor did not transfer that responsibility. The defendant had sufficient control over the temporary cycle lane for the purposes of occupier’s liability, and its common law duties were materially similar.
3. The initial objectives of deterring motor traffic, protecting vulnerable road users and preserving emergency access could justify a physical demarcation. They did not justify detachable wands which, once removed, left an unmarked and non-reflective base on the highway. The defendant had failed to undertake a sufficiently specific risk assessment, had installed and replaced the wands contrary to the manufacturer’s instructions, and had no reasonably effective inspection or monitoring system, particularly outside site hours when the cycle lane remained open.
4. The presence of the base amounted to a public nuisance. The defendant’s asserted need to obtain permission before changing the scheme was unsupported. The local authority’s evidence showed that approval of the relevant changes was not required, provided replacement equipment met the applicable standards. [2011] EWCA Civ 1237 supported the conclusion that, once a prima facie case was established, the defendant had to show that timely remedial action was not reasonably possible.
5. The claimant was 5% contributorily negligent. He cycled close to the marked division between the lanes and should therefore have exercised some additional care, although the absence of warning and the poor visibility of the base substantially limited the criticism.
6. The claimant was not dishonest or malingering. The court preferred the holistic psychiatric evidence and treated undisclosed validity testing with caution because its underlying material could not be scrutinised adequately. The claimant’s physical impairment had lasted over 12 months, substantially affected ordinary activities and limited the kind or amount of paid work he could perform. Liability was established and the claim proceeded to determination of outstanding quantum issues, with costs and permission to appeal reserved.