Foolhardy behaviour does not become reasonable

Dismissing a claim by a cyclist, who sued his employer and a motorist following a road traffic accident, a High Court judge said foolhardy behaviour does not become reasonable behaviour just because a number of people have engaged in it.

Mr Justice David Keane, citing the Court of Appeal judgment in the Ardenheath case (see HSR, January/February 2018, Law Cases) said judges must bring ordinary common sense to bear on the assessment of what should amount to reasonable care.

He was delivering judgment in a case in which a cyclist, who was an employee of an Education and Training Board, sued both the motorist involved in the accident and his employer. He claimed that the motorist was negligent in driving her vehicle and that his employer was in breach of its statutory duty to provide a safe place of work and its contractual obligations to ensure his safety while on its premises.

Earlier the court heard that the cyclist, who was cycling to work, entered the workplace campus by cycling through a pedestrian gateway and along a pedestrian path, even though he could have entered the campus 50 metres further up the road through the main entrance. As he cycled, he emerged, without stopping, onto the private access road.

He told the court he saw a car coming towards him from his left-hand side. He turned right on to the access road, hoping the car would avoid him. He claimed that as he attempted this manoeuvre the front offside wheel of the car glanced against his left thigh, causing him to lose balance and fall against the wing of the car. He claimed he was toppled off his bike and suffered a shoulder injury.

An engineer giving evidence for the cyclist told the court that the employer had failed to ensure that the campus was organised in such a way that pedestrians and vehicles could circulate in a safe manner.

An engineer for the employer told the court that the cyclist should have used the main entrance to the campus and that the pedestrian gate and pathway was for pedestrians and not cyclists. And, he added, in any event the cyclist should have stopped to make sure the way was clear before he proceeded onto the access road.

JUDGMENT

Delivering judgment, Mr Justice Keane rejected the cyclist’s contention that he was entitled to use the pedestrian pathway as a cycleway, because he used it frequently and others used it as a cycle path. He said cycling on the public footpath is expressly prohibited by law. The judge said “Foolhardy behaviour does not become reasonable behaviour merely because a number of people have engaged in it in the past”.

The judge rejected the view of the engineer for the cyclist that the Education and Training Board had failed to ensure that pedestrians and vehicles could circulate on the campus in a safe manner or that it had failed to ensure that the traffic routes were designed so as not to endanger employees. He could, he said, find no breach of regulation 14 of the General Application Regulations 2007.

Mr Justice Keane, referring to visitors’ rights under the Occupiers Liability Act 1995, said that even assuming the cyclist had a claim under the Act, the Court of Appeal has emphasised the need for ordinary common sense to bear on the assessment of what should amount to reasonable care.

The judge concluded that the “real and proximate cause of the accident was” the cyclist’s “use of the pedestrian pathway as a cycleway and his failure to stop just prior to the intersection between that pathway and the private access road”. He also dismissed the claim against the motorist. (O’Mahoney v Hanlon and Waterford and Wexford Education and Training Board: High Court, November 2018)

Source: Health and Safety Review