William Brown v Morgan Sindall Construction and Infrastructure Ltd

At around 19.55 on 5 September 2019, Mr Brown, the Claimant was cycling home from work. He travelled along a cycle lane on Pitfield Street, London located next to a construction site. That construction site was a large one, operated by Morgan Sindall Construction & Infrastructure Ltd, the Defendant. As part of the construction work, the relevant part of Pitfield Street had been closed to motorised vehicles and a different layout of the cycle route established: a two-way cycle lane within one carriageway of the road.

The Claimant fell from his bike. It was immediately apparent that he had sustained an injury to his elbow. Emergency services were called, and he was taken to hospital. He lost a significant amount of blood and required a blood transfusion. He underwent surgery, and was able to leave hospital and return home some 4 days later.

The Claimant now seeks compensation from the Defendant in respect of the injury and losses he alleges he sustained in consequence of their asserted negligence or the nuisance he asserts they created on the highway and, which he asserts caused the accident. His case was that the accident occurred because his bike collided with the base of a traffic bollard which was on road, and from which the cylinder wand had been removed, leaving the base as an unmarked hazard on the road.

The Defendant denied any negligence or causing any nuisance. The Defendant denied that, even if the Claimant had collided with the base of a bollard placed by them (or their contractors), on the highway and, that that caused the accident, that any liability for that accident attached to them in respect of it. It contended that the configuration of the traffic management system had been implemented on the advice of a specialist contractor, Amber Langis, and that that which had been implemented was in accordance with that ‘approved’ or stipulated by London Borough of Hackney Council (LBHC) and Transport for London (TfL). It also asserted that it had complied with the 2013 Safety at Street Works and Road Works Code of Practice (often referred to as “the Red Book” during the trial). Significantly, it also asserted that the Claimant has, as a minimum, significantly exaggerated, alternatively been dishonest, fundamentally so, about the extent of the injuries and losses he sustained.

The trial took place over six days between 30^th April 2025 to 7^th May 2025. I considered documents in the agreed bundle running to approximately 1400 pages, an Opening Note on behalf of the Claimant, a skeleton argument from the Defendant, a supplemental bundle, a joint bundle of authorities and written closing submissions from both parties.

On behalf of the Claimant, I heard oral evidence from the following witnesses: the Claimant, Mr Rowan Pillay, Mr Joe Orton, and the Claimant’s wife, Ms Rachel Brown. Mr Pillay was present when the Claimant fell from his bike on 5^th September 2019. He gave evidence about the incident and the bollard on the road, both on that day, and some time later. Mr Orton works with the Claimant and gave evidence about his knowledge of the Claimant at work, his performance, opportunities for promotion, and his perception of the impact of the Claimant of the accident at work.

On behalf of the Defendant, I heard evidence from the following witnesses: Mr Michael Barrett, Mr Brian Foxton, Mr Sam Breaks, Mr Martin-Roberts, Mr Lee Askey and Mr James Ward.

Mr Barrett is the Development Impact Assessment Manager, Strategic Operations within Network Management and Resilience for TfL. Mr Foxton is the Group Engineer in the Street Management and Network Management Team within LBHC. At the relevant time, he was the Group Engineer from the Council who was engaged and involved in ensuring the highway and safety management for the Britannia Project.

Mr Sam Breaks was the Site Manager in September 2019 for the site adjacent to Pitfield Street within the Britannia Project. Mr Martin-Roberts was one of the Project managers for the Britannia Project. Mr Lee Askey was the Project Director for the Britannia Project. Mr James Ward was employed by Amber Langis and was a Project Manager.

Each witness from whom I heard oral evidence had prepared a written statement which appeared in the bundle. During the trial the Defendant applied to admit a second, significantly more detailed statement from Mr Ward of Amber Langis. The admission of that statement was opposed by the Claimant, noting that it had been prepared having heard the Claimant’s evidence, and in an apparent attempt to fill gaps in the Defendant’s case in the light of that evidence. For reasons which I gave orally at trial, I admitted the second statement from Mr Ward.

I heard evidence from two orthopaedic experts, Mr Perez and Mr Owen-Johnstone, and from two psychiatric experts, Dr Wise and Dr Gibbons.

I determined the factual issues in dispute on the balance of probabilities, having heard detailed evidence from the witnesses and considered carefully the documents before the Court.

The Defendant was the main contractor on a project for LBHC, known as the Britannia Project. That project involved the substantial development of a site bordering Shoreditch Park and Pitfield Street, London. It involved the construction of a leisure centre, secondary school, and new homes.

As part of that development, the Defendant was required to install a new district heating system. This involved it carrying out work on the highway in Pitfield Street which, prior to the work starting was a two-way vehicle road and was part of an arterial cycle route which runs from Liverpool Street to Stoke Newington. That route is one of London’s Cycle Superhighways. On 29^th April 2019, and on the Defendant’s behalf, Mr Sam Martin-Roberts, applied for a Temporary Traffic Regulation Order (“TTRO”), the purpose of which was to close Pitfield St. to vehicular traffic (save for construction vehicles). However, both Hackney Borough Council and TFL requested that Pitfield Street remain open to both pedestrians and cyclists during the development.

The application, dated 29^th April (albeit the date of the top of the document states “amended 17 October 2018), stated as follows:

“Pitfield Street is currently a 2-way vehicle road. It will be changed to a 2 way cycle land (1.5m each) with a pit lane formed for construction vehicles. Only construction vehicles will be able to enter and exit Pitfield Street (See attached drawings) Parking bays removed.”

[The drawings were not attached to the application in the bundle at [929]].

The notes and conditions attached to the application stated as follows:

“1.

These works are carried out entirely at the applicants risk. Hackney council has no liability for the works of the maintenance of the works bracket entire now or in the future] and has no liability for damage caused to private property by the works.

…

9.

A method of statement specifying how Traffic Safety will be safeguarded in accordance with health and safety legislation and must be attached. You need to demonstrate that a risk assessment has been undertaken.

…

10.

Be responsible for the provisioning and maintenance of all the necessary signing associated with your works. Or signing must conform to the safety at St. works and road works code of practice October 2013.

11.

Safe access, around the works or to adjacent properties must be maintained.

12.

The applicant must comply with any reasonable instructions given by any authorized officer of the council, in particular with regard to health and safety.”

The TTRO was granted on 27^th May 2019. Within the bundle there was also a copy of a Street works License dated 20th of June 2018 granted to the Defendant. That document was signed by Sam Breaks, Site Manager for the Defendant. Conditions are set out on that license which was for a “District Heating Trench Excavation including a temporary traffic management involving road closure with two way cycle lanes being maintained”. The conditions provided as follows:

“1.

It works are carried out entirely at the applicants risk, and have been specified by the applicant. The London Borough of Hackney has no liability for the works all the maintenance of the works (either now or in the future) and has no liability for damage caused to private property by the works.

…

3.

The works will be signed, guarded and lit to the standards detailed in chapter 8 of the traffic signs manual. …

4.

Safe access must be provided for pedestrians. Pedestrians must not be diverted across any carriageway.”

Public notices were issued, notifying road users that driving would be prohibited along Pitfield Street from its junction with Hyde Road to its junction with Hemsworth Street. Leaflets were posted through letter boxes (an example being at [940]) to inform residents about the proposed measures along Pitfield Street. Information was also provided about how the Cycle Super Highway would be kept open. See for example [939] and the images of the altered road layout. In those images, (of the area where the accident occurred) a bollard is shown to demarcate the two lanes of the cycle path. No road barriers adjacent to the hoarding was visible in that image (as, in fact there was on the day of the accident). The Traffic Management Plan in the bundle (dated August 2018) [1067] contained a slightly different version of the same image, this time without a bollard or the same demarcation of the two cycle lanes, although, again, no road barriers were adjacent to the hoarding. The document stated,

“We will not impede on the Cycle Super Highway and will implement any required measures to ensure the Cycle Sper Highway is maintained.”

All construction vehicles entering and exiting the site were managed by a dedicated Traffic Marshal team provided through O’Neill & Brennan, a specialist logistics contractor.

By July 2019 King Pin cylinders were installed along Pitfield Street to demarcate the two lanes in the two way cycle lane.

The evidence of the Defendant was that the scope of the project “required a collaborative approach with the client, Hackney Council, their Streetscene highways team, [TFL] and other interested stakeholders including resident forums.” (Per Sam Breaks, Site Manager in September 2019). That proposition is entirely uncontroversial. There is, however, in my judgment, a distinction between a collaborative approach between stakeholders who have, or may have, an interest or concern in a project, and legal responsibility for arrangements put in place.

In his written witness evidence, Mr Barrett explained that his role was to advise on construction projects and provide guidance on interventions which considers, “cycling, logistics and utilities management”. He explained that he looked at safety, environmental, economic and community impacts of projects, and also does a lot of work with emergency services, particularly the Metropolitan Police. In oral evidence Mr Foxton, in my judgment, was keen to set out that the adopting of a collaborative approach between different organisations, and consultation between them, did not mean that the local authority ‘approved’ the Defendant’s plans. See further paragraph 33 below.

All of the Defendant’s witnesses gave evidence that it was necessary to have some obstacle/ marker to prevent motorized vehicle drivers from using the cycle lane when it was closed to traffic. Their evidence was that the risk of drivers ignoring signs and information that Pitfield Street was closed to vehicular traffic and driving along it was a very real one and, further, one which presented a potential risk to other vulnerable road users (pedestrians or cyclists). Their evidence was that therefore, something was needed to be put into place to prevent, or reduce that risk from arising.

However, the evidence of those witnesses was that it was also necessary to ensure that emergency vehicles could access Pitfield Street. Whatever system was used, there were therefore, a number of objectives which it had to meet. First, it had to ensure the safety of vulnerable road users, which included pedestrians and cyclists. Secondly, as part of ensuring the safety of those users, there was a need to prevent or reduce the risk that drivers would ignore the signage clearly informing them that the road was closed to such vehicles, by putting in place some impediment to their ability to pass through and over the road. Thirdly and finally, emergency vehicles still needed to be able to access the roadway.

There are several different types of cylinders and bollards which can be used within traffic management and segregation schemes. For example, a standard conical traffic bollard, which has a flat square base, can be used. This bollard will be easily recognised most as a commonly used traffic bollard. It is not fixed to the road and can be picked up and moved very easily. Alternatively, ‘knock down’ cylinders, are traffic bollards which can be knocked down but are fixed, in some way, to the road. They can delineate traffic flow but also provide an ability to emergency services to negotiate a traffic management system. Other cylinders exist which are also designed to be knocked down, but then immediately swing back into place (thereby granting blue light access). These cylinders are referred to as ‘swing back cylinders’, one particular design being the “Swinbac cylinder”. Different examples of cylinders and other traffic management tools or equipment were in the bundle at 722 and onwards.

‘Pin-in’ cylinders are another different type of cylinder. Kingpin cylinders are a particular make of pin-in cylinder. They are not designed to be knocked down. They consist of a base and a separate, detachable ‘bollard’ or ‘wand’. The base must be fixed to the road surface, either through adhesive glue type substance or by being bolted to the road. The wand can be removed from the base, thereby enabling emergency vehicles to pass through.

Further evidence regarding how Kingpin cylinders can be installed and removed is set out below.

The Defendant contracted with Amber Langis (AL) for the latter to provide specialist traffic management services in respect of, in particular, the road closure at Pitfield Street. The Defendant informed AL that the cycle route needed to be maintained. Mr James Ward of AL created a Traffic Management Plan (TMP) to fulfil that request. Mr Ward’s evidence was that AL’s role in respect of traffic management was “to set up and hire the equipment” (See his first statement at para. 3 [441].) That statement also set out the following:

“4.

We were not present on site after installation, and, in relation to the cycle wands, we did not have maintenance responsibility once installed other than if requested by Morgan Sindall to replace lost or damaged cycle wands.”

The original plan drawn up by Mr Ward was not in evidence. Mr Ward’s evidence was that he no longer works for AL and therefore did not have access to emails he sent or received at the time. He also stated that he did not have access to the original TMP. However, his evidence was that he carried out a risk assessment and,

“would have considered risks such as vehicle incursions, available carriageway and cyclist segregation.”

In evidence, Mr Ward referred to the street plan at [1112] as being both part of the TMP and risk assessment undertaken. His evidence was that that document was created by a CAD designer who put his (i.e., Mr Ward’s) thoughts/ design into the drawn layout on that document. That image shows the narrowing of Pitfield Street to a width of three metres (1.5m per lane for the cycle lane) and installation of bollards along its length, from its intersection with Mintern Street, to the intersection with Hyde Road. It was not clear at all how the street plan amounted to an assessment of any risk; in truth, it, of itself, was not.

In oral evidence, Mr Martin-Roberts, the Senior Project Manager, was very unclear about his understanding of whether a risk assessment for the use of cylinders was required or was undertaken. In oral evidence he stated that one was possibly not needed. He also stated that he anticipated that, if one had been required, it would have been an informal one through communications with other organisations and companies either instructed on or involved in the project (Hackney Street Scene (Brian Foxton) TfL (Mike Barrett)). His evidence was also that AL was responsible for the set up of the TMP. He stated that he believed that the Defendant was told that bollards were needed and relied upon that.

As noted above, the court heard evidence from Mr. Brian Foxton, from LBHC and Mr Michael Barratt MBE from TfL.

At the relevant time (and as set out above) Mr. Foxton was the Group Engineer from LBHC who was engaged and involved in ensuring the highway and safety management for the Britannia project. In oral evidence, having listened to evidence from the Defendant’s witnesses repeated statements about LBHC’s ‘approval’ of various aspects of that work or plans, he stated clearly that he wished to clarify that:

“the local authority do not “approve” a plan - the local authority agree that is acceptable and compliant with legislation. It meets the requirement of legislation if the application has come in and necessary information has been received.”

He stated that, in this case, the necessary information included the fact that Pitfield St. would be closed to motorised traffic and the information about how cycle traffic would be maintained in both a northerly and southerly direction. He stated that the local authority was not involved in the detail. Rather, its role was to agree to or approve the principle of closing the road; the local authority would not have details such as the type of cylinders that would be used. His evidence was, that in any event, the local authority would be happy so long as the equipment used was industry approved and met relevant standards. He stated that it was not for the local authority to provide an endorsement of any particular type of cylinder. He made the point that the Defendant’s site works and the project impacted upon the surrounding highway network (which included Pitfield Street). Consequently, the local authority were involved in providing good practice guidance and ensuring a collaborative approach to ensure the safety of cyclists using the Cycle Superhighway.

Mr. Foxton gave evidence that it was not for the local authority to manage the inspection and maintenance regime put in place by the Defendant.

Mr Michael Barratt MBE is a Development Impact Assessment Manager, Strategic Operations within Network Management and Resilience for TfL. He described his role in the following terms:

“I supply advice to construction projects and provide guidance on a variety of interventions that considers walking cycling logistics and utilities management. I look at safety environmental economic and community impacts of projects I also do a lot of work with emergency services team especially Met Police.”

In respect of the Britannia project, he stated that his involvement would be,

“to look at construction methodologies under the microscope as to what they do and provide feedback with suggestions”.

In oral evidence he stated that one consequence of the construction project undertaken by the Defendant was that, on the highway adjacent to the construction site, there was reduced space for road users and pedestrians. That reduction in space on the highway had arisen because of the intervention by the developers and this had caused potential issues. This was similar to the evidence of Mr Foxton set out above.

Mr Barrett explained his specific involvement in the project. He was involved in training the Traffic Marshals working on the site. This was to bring their training to an ‘elite’ level. He noted, however, that the purpose of the training was not to train the marshals on how to inspect the site. Rather the training was empowerment training, to help the Marshalls to understand the needs of the community, including how best to approach road users and challenge or deal with driver behavior when needed. He also took part in the walk round on the 13th of June 2019 and recommended/suggested the use of “pin in” traffic cylinders as opposed to traffic cones to demarcate the two-way cycle lane. He explained that this was because traffic cones were not fixed, took up more space on the highway and could be moved easily along the route, causing obstructions.

Mr. Barrett explained that one of the concerns that was raised in respect of the project was that some drivers were ignoring the closure signs and proceeding to drive down the two-way cycle lane. It was therefore, in his view, necessary to put a physical deterrent in place in order to change motorists’ behaviour. This was another reason why he recommended the use of cycle cylinders which were less easy to move than traffic cones.

Mr. Barrett believed that conversations took place about which cylinders should be used. The only detail he gave about the outcome of those conversations was that a decision was made that, to reduce the carbon impact, UK suppliers should be considered. He believed that the Defendant, in consultation with AL then installed the Kingpin cylinders. He gave evidence that he was not involved in the decision to use the Kingpin cylinder.

In cross-examination he agreed that if a wand was missing from a Kingpin cylinder, but the base remained in place on that highway, that could present a problem. He agreed with a concern expressed by one of the police riders at the emergency services resilience test carried out in January 2020, about the effect of a bike going over the base of the bollard: he agreed that that could present a potential hazard. His evidence was that, whilst he would not necessarily have expected there to be a risk assessment in respect the type of bollard which should be used, provided they met the relevant British Standard, he would have expected a risk assessment of the methodology of maintenance and then for that to be monitored and risk assessed on a dynamic basis. His evidence was that “maintenance is the important thing”.

Mr Barrett agreed that prior to the accident taking place in September 2019 it was known that the wands were being knocked out or removed through anti-social behaviour. His evidence was that the maintenance regime of the project team to maintain the cycle route was key to address that kind of vulnerability within the traffic management system. His evidence was that he believed that the Defendant had in place a reasonable regime to ensure that the cycle routes around the site were checked in the morning and in the afternoon by traffic marshals so as to ensure that new traffic management measures were in place, and that this was in addition to observations by site management.

He was also involved in the emergency service resilience trial which took place in January 2020 following which a decision was made to progress with the use of a swing back cylinder.

The Defendant employed a dedicated Community Liaison Manager who was the interface between member of the public and the company. She was to feedback concerns or issues raised by members of the public and reported to the Project Director (Lee Askey) who had overall responsibility for the project. (See the statement of Mr Martin-Roberts at paragraph 8).

Pulling together those strands of evidence, I consider that when the traffic management scheme was designed:

At its highest, the evidence before the Court was that, at the design stage of the TMP, a risk assessment was undertaken by AL which “would have” considered vehicle incursions, available carriageway and cyclist segregation. Whatever assessment was undertaken, it was not in evidence. Mr Ward’s evidence was therefore based upon what he ‘would have’ considered. He did not appear to have a recall of what was actually considered, nor was there documentary evidence before the Court to establish what risk assessment actually took place. There was no evidence of what specific risks were considered, or of any detail of the risk assessment. There was no evidence of any risk assessment of the mechanism for segregation of the two-way traffic lane at that stage.

The Defendant’s Senior Project Manager was unaware of whether any risk assessment was required or undertaken in respect of the bollards used along Pitfield Street. His evidence, in common with that of some of the Defendant’s witnesses appeared to seek to place responsibility for the altered traffic management system either upon AL, or LBHC or TfL.

The documents before the Court clearly stated that responsibility for the scheme lay with the Defendant. The witness evidence from those working for TfL and LBHC did not suggest anything different. Rather, they simply explained a need for a collaborative approach in order to promote good practice, were clear that neither organisation had any responsibility or duty to approve a particular scheme.

Neither TfL nor LBHC endorsed or approved the use of any particular traffic bollard. TfL recommended something other than a moveable traffic bollard and suggested “pin in” cylinders.

The evidence of TfL and LBHC was that maintenance and monitoring of the scheme was key. Traffic marshals were not trained to do this. TfL and LBHC were not responsible for maintenance or monitoring of the scheme. Initial evidence from AL was that they did not have maintenance or monitoring responsibility for the site or, specifically, the cycle wands which were used (see further above).

Initially, it appears that a proposal was made that standard traffic bollards would be used to demarcate the cycle lane, i.e., the conical type of moveable, unfixed traffic bollard that is often seen on construction sites or building works. This was the scheme which was in place on 13^th June 2019.

The Court can be satisfied that that was the case as it was the date on which an active roadworks patrol took place when photographs were taken. However, as noted above, feedback was received by the Defendant after that active roadworks patrol took place on 13^th June 2019. The patrol consisted of Michael Barratt, the Development Impact Assessment Manager from TfL, Jono Kenyon from HCC, Madeline Pelzel from LCC and Councillor Richard Lufkin from LBHC. The “All Inclusive Cycling and Walking at Roadworks report” was at [871-889]. I noted, in particular, the observations and suggestions (marked in red, but in italics below) within that document:

A document appears to have been prepared following the patrol on 13^th June 2019 which was at [1096-1109]. It was undated. In the bundle it appeared that this document was attached to the email referred to below dated 9^th July 2019 from Mr Martin-Roberts. The undated document provided as follows:

An “all inclusive” walk appeared to take place on 25^th June 2019 [881-889].

On 9 July 2019 Mr Martin-Roberts sent an email to Michael Barratt at TFL and Brian Foxton at Hackney local authority (copying in various other individuals including Luth Vatanabe, San Breaks and Lee Askey). The subject of the email was “Britannia Environmental Walk 25 June 2019”. The email stated:

The information set out in the fourth bullet point above appears, on the evidence before the Court, very likely to have been inaccurate. As set out below, it was common ground that Rediweld knock down cylinders were not utilised. They were not in place on 9^th July 2019. There was no evidence that they were, nor did the Defendant suggest they were.

At some point (the date upon which the decision was made was not clear) a decision was made that Kingpin cylinders should be used along Pitfield Street. An image in the bundle at [892] suggests that the Kingpin cylinders were in place by 17 August 2019 along, at least, part of Pitfield Street.

The Defendant’s evidence regarding how that decision was made and what assessment was done as to the risks/benefits of the type of cylinder used, was confused and unsatisfactory. Mr Martin-Smith’s oral evidence was:

“Definitely would not select off own bat.

Would not just install.

Would not approve wand without approval by local authority.”

His evidence about how, and on what basis the decision to use a particular cylinder was particularly vague. At the time he gave his evidence, and despite his assurances that some consideration to different options would have been given, I was unconvinced that that had, in fact, taken place. I was not confident that his evidence reflected that which had taken place, as distinct from his hope or belief as to what should have taken place.

Both Mr Foxton, and Mr Askey believed that they had been at a meeting when a discussion about which cycle wand should be used, although neither could give more detail about it than that. Mr Askey was clear that he did not have the relevant level of expertise to choose a particular cylinder. Mr Foxton did not believe it was his role to do so, or that of LBHC. Mr Askey thought that, had a Swinbac cylinder been approved by TfL, it may have been used. Mr. Foxton’s written evidence was that he considered that it was reasonably believed that the Kingpin cycle ones were best suited for a number of reasons which included:

“a)

cycle safety b) the need for a physical deterrent given the problem of changing motorist behavior who continued to use the cycle lane ignoring road signage and the diversion routes on the entry to Pitfield street c) the Kingpin cones were industry approved and have been used successfully elsewhere in other London boroughs d) we also took on board comments from Michael Barrett from TfL who could be described as a subject matter expert and the type of bond being used would have involved any comments from TfL e) the cycle lane also had to be accessible to emergency services and so any cycle cones had to be robust but at the same time the area had to be accessible in any emergency.”

In oral evidence, Mr. Foxton accepted that, in his view, if removed, cycle cones would be replaced as soon as possible by the Defendant, was probably based upon what the local authority was told, albeit the bulk of the information he received was usually from his own officers.

Mr Martin-Roberts believed that the wands were installed in July. He was unable to assist with the apparent difference between what was set out in his email of 9^th July 2019 and that which, in fact, took place. He also accepted that on 30^th October 2019 he sent the following email to Mr Ward of AL, which he followed up later that month, copying in Lee Askey:

“Hi James

As discussed could you send some details on the cycle wands you have installed at Pitfield Street and Hyde Road please

Any information showing they are an approved system, certified etc … also any photos or other places you have used them this would be useful

Also, could you send over any alternative systems that would be better suited and wouldn’t be able to be removed so easy (We are having issues like shown in the attached photo)

Regards”

No photograph was attached to the email in the bundle, so it was not clear what was being referred to. James Ward replied on 1 November 2019 attaching an extract from the Traffic Signs Manual which set out general information about cones and cylinders only. Mr Ward stated that all cylinders used adhered to those regulations, specified by the Department for Transport/Highways. The email exchange, however, tended to suggest that at the time the email was written, Mr Martin-Roberts had little information to hand about the cylinders used, including that the cylinders were “approved”. This email was sent after the Defendant was notified of two accidents.

In respect of the decision to use Kingpin cylinders, Mr Ward’s written evidence in his original statement dated 31^st August 2023 was:

“6.

I can confirm that traffic management drawings was submitted to the local authority and had to be agreed by them before the permit was granted. The proposal was that the kingpin wands would be used on this job. Only once the local authority were happy with the solution, was the permanent granted and we installed the cycle wands.

7.

Kingpin system was also submitted to Hackney council to confirm that type approval before the permit was granted. Hackney council confirmed that these were suitable as per the data sheets.

8.

The kingpin was selected for a multitude of reasons. Primarily because the route was to be kept as blue light accessible. The kingpins were the quickest and easiest method of removal to allow blue light access. The footprint of the base was also significantly less than that of conventional barriers and maximizing space for cyclists using the cycle superhighway.” (Statement of 31 August 2023 [442].

In his later statement (dated 5 May 2025, prepared during the trial) he stated:

“11.

Kingpin bollards are a traffic cylinder. Traffic cylinders are used all over the UK for traffic management in low and high speed roads. All traffic cylinders have to be compliant with traffic signs regulations and general directions (TSRGD) and the relevant British standard … for reflectivity. The brand kingpin were used as a traffic cylinder as they were the traffic cylinders that were in stock.

12.

If the traffic cylinders used are compliant with the TSRGD and relevant BS which kingpin are, there is no requirement to obtain approval to use them in TM plans.”

Those two statements were slightly inconsistent: one suggesting that the use of the Kingpin cycle wand was approved by TfL or LBHC, and the other suggesting that that approval was not required because the cylinder met British standards.

However, in oral evidence, Mr Ward stated that Kingpin cylinders were used on the site because they were in stock and available.

Again, pulling these strands together, I consider that, on the evidence before me, it is more likely than not that:

In evidence, the Claimant’s counsel took the Defendants witnesses to the manufacturer’s instructions/data about the use of Kingpin cylinders. A copy of those manufacturer’s instructions were at [740-742]. In particular, at page 741 the document states:

“Cylinder Installation:

1.

Locate into Base and twist 90$°$ to fit.

2.

Pre-drill a pilot hole through the slot on the Base into the Cylinder.

3.

Using a self-tapping wood screw at over 35mm thread, secure the Base to the Cylinder.”

Mr Ward gave evidence that the bollard/wand is attached to the base by inserting it and turning it through 90°. That appeared also to be the understanding of Mr Martin-Roberts whose evidence was that when wands became detached from their bases, they would be replaced in that way. Mr Askey’s evidence was to similar effect. He stated that the Defendant had not installed the Kingpin cylinders but that what he saw when they were replaced was that the wand was just put into the base and twisted.

Mr Askey was clear that whenever he replaced a missing wand, it was a simple task of fitting it back into the base and twisting it. Mr Martin-Roberts’s evidence was to the same: he would put the wand in the base and twist. He did not think/know that a screw was needed. Mr Askey believed that that was how Marshalls would have replaced them.

Mr Ward’s evidence was that on the site, the wands were not screwed into the base, but that a “twist and lock” method only was used. He stated that this was because the Local Authority had instructed AL/ the Defendant that the two-way cycle route needed to be blue light accessible. He accepted that the manufacturer instructions stated that a screw should be used to secure the wand to the base. He agreed that the local authority had not been informed that the mechanism through which the Kingpin Cylinder could be blue light accessible was to install the Cylinders other than in accordance with those instructions. He stated that, “we said that we would put them there and [they] would be able to be undone to facilitate blue light access.” He accepted that it was more likely that the cylinders could easily be disconnected or become so if they were not screwed into the base. He also accepted that the Kingpin cylinders would not meet British Standards if they were not installed in accordance with manufacturer’s instructions.

In terms of the decision to affix the bases to the road using adhesive rather than bolting them to the road, Mr Ward’s evidence was that bolting the bases down would have been difficult because of a lack of utility plans: there was a risk that utilities might have been encountered such as fibre optic cables or street lighting. He accepted that AL had not, but could have, asked the Defendant to obtain street plans to ascertain whether that was an actual risk of interference with utility cables on the site. He stated simply that the location of the bollards was, “outside the construction boundary”.

I was not satisfied that there had, in fact, been active consideration given to the best means to affix the bases at the time of the project, either initially, or, once problems with the cylinders being detached became apparent and were known about. There was no evidence before me upon which I could make such a finding.

The evidence was that by the end of July 2019 the Defendant was aware, or should have been, that the wands in the Kingpin cylinders were being removed from their bases. In other words, in my judgment, the Defendant had actual or constructive knowledge of that fact at that time.

Mr Martin-Roberts’s evidence was that vandalism on the site started in August 2019. He accepted, however, that there were reports made of wands being removed from the end of July 2019. In addition to complaints of mopeds using the route, complaints were made that, “a significant number of the temp markers are lying in the road (see photos)”. See the email of Sunday 28^th July 2019 [1152]. The focus, at that stage, appeared to be on enforcement, for example by the police. On Tuesday 30^th July 2019, reassurance was provided that, bollards removed over the weekend, were back in place. In an email of 30^th July 2019 LBH (copied to the Defendant’s Dalia Islam) it was identified that youths were believed to have knocked the bollards down over the weekend (Sunday). It stated that traffic marshals would “continue checks daily every morning and afternoon to make sure they are where they need to be.” It was identified that, even if the police increased their presence, they would not have capacity to have someone there at all times. [1151].

On 12^th August 2019 Dalia Islam sent an email to individuals at LBH, copying in Lee Askey and Mr Martin-Roberts. The email stated:

“Good afternoon,

We have recently noticed a group of youths riding along the cycle lane in both Pitfield St. and Hyde Rd. knocking down the bollards, this has been witnessed by our site managers and Traffic marshals-this was also highlighted to us by Cllr Race a few weeks ago as he noticed the bollards were not in their posts and left on the floor (see attached e-mail thread).

This is becoming a frequent thing and not only causing a health and safety risk to the cyclists/public especially when we are not on site in the evenings and at weekends but these youths are now shouting abuse and offensive words to our traffic marshals when told to leave the area.

As you know our TMs are very polite and courteous to the public but are left frustrated as each time we are having to temporarily hold the cyclists until all the bollards are put back into place to then reopen the cycle lane to ensure the safety of the cyclists and members of the public.

I am not sure how we deal with this but I thought I would bring this to your attention in case you get any comments from residents

kind regards

Dalia Islam”

This email, in my judgment was significant. It evidenced the fact that the Defendant knew that traffic bollards were being removed along Pitfield Street, and causing a health and safety risk, that this was happening frequently, and, importantly, when staff were not on site, but at a time when the cycle lanes remained open and were being used. The e-mail suggests that managers who were present on site were aware of the issue, because they had witnessed it. In any event, the e-mail itself evidences senior managers with responsibility for the project being informed about the issues on the site and potential risks arising from them. Even if the Defendant did not have actual or constructive knowledge that wands/bollards were being removed and causing a risk to cyclists and others at they end of July, they did so at this point, 12^th August 2019.

It was put to the Defendants witnesses, Mr. Martin-Roberts and Luke Askey that they did nothing in response to this. Mr. Martin-Roberts’ oral evidence was that, “there would have been follow up conversations”, possibly a mixture of email and verbal conversations. There was no evidence of documented or other conversations or risk assessment, other than the suggestion of enforcement as referred to above. Mr Askey’s oral evidence was that he believed he spoke to LBHC Streetscene team, and suggested removing the bollards but that the local authority wanted them to stay because they considered that the risks of a car driving on the closed role justified it. He believed that a decision was made to reduce the number of bollards, although his evidence about when that decision was made or implemented was not specific. In any event, I consider that, in light of the knowledge the Defendant had at this point about a risk to safety, a conversation, without more, was insufficient to address the ongoing risk.

When giving evidence regarding the painting of the bollard bases in November 2019 (in his view an agreed approach to improve the situation) he stated that he would have taken those or other steps (such as removal of bollards)/reducing their number sooner, but that no one had said that there was a safety hazard. He stated “we did not foresee any risks”. I disagree. At that point, the risk of an accident because of the wands being removed was foreseeable. The risk to safety of cyclists had been identified and explicitly high-lighted by Dalia Islam in her email.

Despite the evidence of Mr Martin-Roberts that he considered that the Defendant had in place a reasonable system of inspection and maintenance to ensure that, if the cylinders were knocked down during the work at the site, that would be corrected, there was little tangible evidence of that. His evidence was that they were checked morning and afternoon by Traffic marshals and would also be replaced by staff on an ad hoc basis if seen to be missing. His evidence was that once the difficulty with anti-social behaviour became a recurring issue, reasonable arrangements were made to replace the cylinder used in consultation with TfL and LBHC. Again, on the evidence, I did not agree with that assertion. In mid-August 2019 there was evidence of a recurring problem. The cylinders were not replaced until some time after January 2020. In addition, there was no sufficient evidence before the Court to suggest that the timeframe within which action to start the process of consultation leading to a change was a reasonable one. See further below.

The Traffic Management Plan t [1079] suggested that the appointed Logistics Manager would be responsible for amending and updating the TMP and, “identifying locations and times where traffic congestions or unsafe conditions for vehicles, cyclists, pedestrians and workers are occurring, and providing recommendations for improvement.” At the time, the logistics manager was Luth Vatanabe. He did not give evidence.

However, the plan for the two-way cycle lane did not change between the end of July and September 2019. Mr Martin-Roberts did not appear to be clear about whether traffic marshals were trained to put the wand back into cylinder bases. There were no records of regular checks taking place along the cycle lane, although Mr Martin-Roberts believed that they did take place or that requests were made for them to take place. His oral evidence was that there “would be” a logistics plan on the computer/server. It was not in evidence.

On 16^th August 2019 a Construction Logistics and Community Safety (CLOCS) site monitoring visit took place. The purpose was to assess whether the site was compliant with a number CLOCS national standards. Mr Martin-Roberts and Mr Vatanabe were present together with a Traffic Marshal, Dauda. The report is titled “Construction Logistics and Community Safety CLOCS Site Monitoring report”. That document recorded, under the standard “Has a suitable risk assessed vehicle route been specified”, that a suitable, risk assessed route had been specified within a detailed Construction Logistics plan and, “cycle lanes created and traffic marshal located at key junctions to manage the high density at rush hour on the Cycle Super Highway that runs adjacent to the site.” Some of the comments within the executive summary were complimentary about the work undertaken at the site. There was no information about whether, or to what extent, the problems with the King Pin cylinder wands being removed from their bases were discussed or considered.

Mr. Barrett gave evidence that he was aware that reports of deliberate and willful vandalism had been taking place in respect of the cycle wands. He believed that it was not taking place every day but that that it was occurring sufficiently frequently for the local authority to consider traffic enforcement measures including installation of fixed CCTV for the area. He noted that that would not be an overnight fix and would have required capital improvement approval and the acquisition of equipment. He believed, however, that the Defendant responded promptly to any reports of dislodged ones and remedied the problem noting in particular that before the site was closed it would be checked. He agreed that this belief was based on that which the Defendant had reported to him. He also gave evidence, however, that it was likely that the acts of vandalism were often occurring outside of site hours. He considered that the Defendant sought to replace the wands as soon as was reasonably possible and when they became aware that they have been damaged or vandalized.

Traffic marshals were on site from 8am to 6pm. The evidence of several of the Defendant’s witnesses was that the Traffic marshals were tasked with monitoring the cycle wands/ when they were removed/ their replacement. Mr Askey however gave clear evidence that they were employed, not to monitor the cycle lane, but in respect of monitoring and marshalling vehicles, particularly construction vehicles entering and leaving the site when they may come into contact with other vehicles or vulnerable road users such as cyclists or pedestrians. Mr Askey also gave evidence that whilst, out of site hours, night security was on site, he did not believe that they were given instruction to monitor or pay attention to the cycle lane: their role was to secure the site.

His evidence was that he would quite often hear that bollards/wands were out, but that he could not say how quickly they were put back into their bases.

The Claimant cycled home at 19.55 on 5 September 2019 along Pitfield Street. I was satisfied by his evidence, and that of his witness, that he had fell from his bike.

Mr Rowan Pillay gave a clear account of what he saw on the 5 September 2019. He does not know the Claimant other than through the events of that evening. In my judgment he was an entirely straightforward witness who gave the best account he could of what he had seen and heard. He explained that he was walking along the road in the same direction as the Claimant. The Claimant cycled past him. He described him cycling at ‘not a particularly fast speed’. The Claimant’s estimate was that he would cycle the journey home to work in about 35/40 minutes and that it was a journey of about 4 miles. I consider that the description of him not travelling particularly fast is likely to be accurate. Mr Pillay stated that the Claimant was about 2m directly ahead of him when Mr Pillay saw him crash and “hit something”. At the time, Mr Pillay did not know what it was. His immediate focus was on helping the Claimant whose arm he described as, “a mess”. He called an ambulance and waited with the Claimant until paramedics arrived, which he estimated was within 5-10 minutes. Another member of the public stopped to help, in particular with the Claimant’s bike, and by contacting his partner. They spoke about what had occurred and the cause of the accident. He considered that it was, “pretty clear he [the Claimant] hit the base of the bollard which was there.”

An image taken by a member of the public (I understood the evidence to be that that was the other individual who had offered assistance) just after the Claimant had fallen from his bike shows that just after the junction with another adjoining street, the Defendant had created a two way cycle lane. That cycle lane was within the single carriageway of Pitfield St. That single carriageway was divided by a series of bollards which consisted of a raised dark grey base unit which was fixed into the road and a red and white reflective vertical ‘wand’. The image shows the first bollard to be incomplete: the ‘wand’ is missing, but the dark grey, raised, base is present.

Immediately before the bollard base, a clear white line is visible which appears to mark the division of the cycle lane. A picture taken the day after the Claimant fell from his bike shows that white line extending for a distance along Pitfield Street, dividing the single lane carriage way in two. That image also shows orange temporary barriers all alongside the left side of the cycle lane.

The Claimant’s evidence was that he could not recall the orange barriers being present all the way along Pitfield Street, but that they had definitely been present along the cycle lane where he fell. He also agreed that the white line was intended to divide the two-way cycle lane. His consistent account in evidence was that he was cycling in his correct lane, either on, or just adjacent to the white line. He stated that he was cycling in that position to avoid a collision between his bike and the feet of the barriers to his left or any debris on that side of the road. He did not believe that there were other cyclists about at the time of the accident.

His evidence was that he believes that his front wheel either hit, or clipped the bollard base, that he came off his bike suddenly and smashed into the next bollard further along. At the time of the incident, he did not know what he had hit. It was only later that a passer by said he had hit the bollard base.

Some weeks later Mr Pillay took a photograph of where the bollard had been and sent it to the Claimant by WhatsApp. The image he took clearly shows that the bollard had been completely removed and the hole where it had been, had been filled in.

I also considered the picture at [469], showing that the orange temporary fencing was then in place all the way along Pitfield Street. The evidence of Mr Askey was that information on the Defendant’s internal server was that that image was taken on 6^th September 2019 at 15.06. Although not very clear, it may show a larger gap between the first and third Kingpin bollard, possibly suggesting that, on 6^th September, that bollard was still missing.

I consider it more likely than not that the reason the Claimant came off his bike was that he hit the bollard base, which was missing its cycle wand, in the centre of the two-way cycle lane and immediately after the white line ended. No wand was in it. The base was the same colour as the tarmac and was not clearly visible. I accepted the evidence presented by the Claimant as to how the accident took place. In particular, Mr Pillay gave an entirely measured and credible account of what he saw. His evidence was the best account available of the event: he saw the crash happen and was present in the immediate aftermath. I consider that his account is most likely to be accurate: that the Claimant hit the base of the bollard which was there. The Claimant has proved the cause of his accident. The factual basis for this conclusion is no ‘after thought’ as alleged by the Defendant. It is based on the clear factual accounts set out above of those who were present when the accident occurred.

After the Claimant’s accident, and after the Defendant was notified about a further cycle accident in November 2019, a number of steps were taken. Mr Askey, the Project Director for the Britannia Project was notified of the Claimant’s accident on 29^th October 2019. First, the bases of the Kingpin Bollard were painted red to improve their visibility as a “preventative measure” (See per Mr Martin Roberts at para 19 on [450].)

Subsequently, a decision was made and communicated that the bollards/Kingpin cylinders would not be used. On 8^th November 2019 [1119- 1120] the Defendant informed LBHC and others in a “Weekly Comms Update” that the bollards would no longer be used:

“7.

Amendments to the Cycle Super Highways (08/11/2019): following on from some consultation with the cyclists using the cycle superhighway we have made a commitment to remove the lane separation bollards to Pitfield street and Hyde Rd. barriers which segregate the cycle lanes. This is to provide better accessibility for cyclists during peak times, this also helps reduce vandalism which is currently occurring with the bollards being removed when the site is closed full stop a white line will be installed to segregate the cycle lanes going forward all plans have been agreed with TfL and street scene. Please be assured that this will not impact the operation of the cycle superhighway. These works will be carried out on Sunday when the cycle lane is not that's busy.”

Mr. Foxton gave evidence that he was not involved in the decision to paint the bases, of the bollards, but, noted that the Defendant would not have needed to have obtained approval from the local authority (LBHC) to do that, nor indeed to do painting on the cycle lane itself. He stated that he believed that the local authority may have had some involvement in the decision to remove the cycle wands through one of his officers who was in regular conversation with the Defendant. He stated that, again, there was no necessity for the Defendant to seek approval from the local authority. In addition, he stated that` local authority would not have objected to the removal of the kingpin cylinders, nor indeed to their replacement with knockdown bollards, so long as the latter met relevant standards.

In mid-December 2019, the Defendant made enquiries (through AL) about alternatives to the kingpin cylinders. With consultation with LBHC and TfL about alternatives to the Kingpin cylinders, Swinbac cylinders went through an Emergency Services Resilience trial on 11^th January 2020 and were then installed in Pitfield Street in early 2020. I noted that the proposal to use the Swinbac post was proposed to Brian Foxton on 16 December 2019 at 11.29 by Mr Martin-Roberts. It was explained that this was because of ongoing issues with the Kingpin cylinders being removed out of hours (which he asserted were put back “pretty quickly” by security guards who regularly reviewed the pit lanes). Within a matter of hours, at 14.24 on the same day Mr Foxton replied, “Provided they meet the standards in the TSRGD, then I am happy to give the go ahead.” An email from Lee Askey on the same day at [1159] suggested that the Defendant was, at that time, ‘chasing TfL for the trials on the fixed versions of the cycle wands to see how quick this can be resolved to get them installed as it would stop this happening again”.

When asked about why changes such as this were not considered or implemented earlier, Mr Martin-Roberts stated that the Defendant could not change the road without the agreement of the local authority but that it was hard to recall why changes were not undertaken earlier. The evidence of Mr Foxton simply did not support Mr Martin-Roberts’ statement or understanding. Mr Foxton was clear that permission or approval was not needed and, that in any event, the only matter of concern for it was that the cylinders met relevant standards.

In evidence, Mr Martin-Roberts accepted that placing the base on a white line may have improved its visibility. Mr Ward gave evidence that that would have had consequences for the method chosen for fixing the base to the road and that it may have required the bolt in method to be used rather than adhesive.

As set out above, on the facts, I considered that the Claimant fell from his bike because his bike collided with, or came into contact with, the base of a Kingpin cylinder when the wand in that cylinder had been removed and not replaced. The likely reason for the removal of the wand from the base was vandalism/ anti-social behaviour which occurred out of hours. The Defendant was aware that that was taking place, and had been since, at the latest, mid-August 2025.

The Defendant, or its contractors, installed the Kingpin cylinders other than in accordance with manufacturer’s instructions and, when wands were removed, installed them other than in accordance with manufacturer’s instructions. No reasonable or effective system of inspection or monitoring had been put in place in respect of that vandalism; such which there was did not address risks arising during the hours when the site was closed, but the cycle lanes still being used. There was no detailed risk assessment of the identified risk to cyclists caused by the removal of the wands from the base between late July or mid-August 2019 and the Claimant’s accident. The Defendant did not appear to draw to the attention of other stakeholders, TfL or LBHC the specific risks, nor inform those organisations that, in order to provide the blue light access required, the Kingpin cylinders were installed other than in accordance with manufacturer’s instructions. Indeed, the Defendant appeared unaware that that had taken place. Nor did the Defendant, once aware of the vandalism and risk to cyclists, suggest or prompt discussion about alternatives, nor implement any measures to minimise the risk whilst other solutions were identified. The Defendant’s account that they were required to seek permission from TfL or LBHC before making changes was not supported by the evidence. First, they implemented changes in November without such apparent limitation and, on the evidence, within a relatively short time of taking action and focusing on the issue. Further, the evidence of one of their witnesses, Mr Foxton, from the local authority, did not support their case on that.

The Claimant asserted that the cycle scheme in operation at the time of the accident constituted a nuisance on the highway, alternatively, that the scheme was negligently created and or implemented. Particulars of breach of statutory duty or negligence included an allegation of negligence in respect of the selection of the particular bollard used, failure to remove the bollards, or their bases once aware that they were vandalised, and failure to put into practice a reasonable system of inspection, and failure to warn the Claimant of the bollards or base unit on the carriageway.

As set out above, I consider that by mid-August, at the latest, the Defendant was aware, or should have been, that there was a recurring problem with the cycle wands being detached from their bases through anti-social behaviour and that this caused safety risks for vulnerable road users including, specifically, cyclists. There was, in my judgment, little, if anything done by the Defendant between that date and the date of the Claimant’s accident to assess or minimize the risk which had arisen and about which they had knowledge. Whilst conversations may have taken place, there was no evidence regarding their detail nor, importantly, their outcome or effectiveness.

In addition, I considered, on the evidence before me, that the Defendant had installed (through its contractor) the Kingpins other than in accordance with the manufacturer’s instructions, because no screw was used to fix the pin into the base. The evidence was that no one had identified that fact, nor had anyone received training about how to reinsert the wand once detached. All that happened was that the wand was put back by being inserted into the base and twisted.

In my judgment, the consequence of these facts is that, even if the initial use of and installation of the Kingpin Wand was not negligent, nor a breach of duty, or was justified by the need to place a physical demarcation of the two way cycle lane, and by the need to deter motorists from driving along the cycle lane, the Defendant was negligent in the implementation and maintenance of the use of Kingpin cylinders.

There was in truth, in my judgment, no reasonably effective system of inspection put into practice to ensure that the use of the bollards remained safe, either initially, or, importantly, after the risk created by them became known. At best, marshals were instructed to check they were there morning and night, and to put them back if they were missing, but to do so in a manner which was contrary to the manufacturer’s instructions. No records of those checks appear to have been kept.

Further, the instructions to check at the beginning of a shift (8am) and at the end of the shift (6pm) did nothing to address the risk when it was known it was most likely to occur: out of hours when the site was closed. Although the site was closed between 6pm and 8am, the cycle lane remained open and was used by cyclists. That may have been at a significantly less intense rate than during rush hour, but, nonetheless, the cycle lane was open. Further, Mr Askey accepted that the marshal’s primary role was not to monitor the cycle lane or the vandalism of the bollards, but rather to marshal construction traffic coming into and leaving the site. Similarly, his evidence was that the security guard on site was not to monitor the cycle lane, but to keep the site secure. The information received by the Defendant was that the difficulty with wands being removed was, specifically, taking place out of site opening hours. The evidence of Mr Barrett or Mr Foxton that reasonable steps were taken to replace the wands once they were found to have been removed was based on the Defendant’s own reports, and that report was not based on records.

I consider that the presence of an unmarked and non-reflective base upon the highway caused a nuisance to cyclists and road users. There was, in my judgement, justification for the implementation of a scheme which provided a deterrent to motorists driving on the cycle lane, and to allow blue light access. There was not, however, in my judgment, justification for the use of cylinders from which the wand could be detached, leaving an unmarked and non-reflective base on the cycle lane. Still less for the use of such a cylinder installed other than in accordance with manufacturer’s instructions. Once the wand had been detached, the dark base, on the dark concrete became a hazard for road users; it was not needed nor justified. Other means of achieving that which was required were available.

That is, in my judgment, sufficient to conclude the issue on liability. However, I agreed with the submissions made by the Claimant that whilst there was a legal issue as to whether the Defendant was an occupier of the cycle lane, the distinction between the Defendant’s duties as an occupier and those under the common law of negligence were not materially different. Further, I considered that, although there was consultation and collaboration in the work undertaken at the site, there was the requisite degree of control in the context of Defendant’s licence to close Pitfield Street and create the two-way cycle lanes maintained in the space in one lane (reduced, as it was, by the Defendant’s occupation of the other lane). It was not disputed by Defendant that it created, and was responsible for, maintenance of the cycle lane.

Even if the initial use of the kingpin bollards was justified, I was not satisfied that the balance remained in the Defendant’s favour after mid-August 2019 for the reasons set out above.

Further, I consider that the fact that it was not clear precisely when the wand was removed from the base unit did not impact liability. This was because of the absence of a reasonable system of inspection. See Janet Dawkins v Carnival PLC (T/AS P&O Cruises) [2011] EWCA Civ 1237: the Claimant established a prima facie case of negligence against Defendant for allowing a hazard to remain on the surface of an area the Defendant maintained. The Defendant did not prove that there was such contemporaneity with the wand being removed from the base unit and the accident that remedial action could not have been taken by Defendant.

In addition, I reached the following conclusions:

That which is set out above are my reasons for my decision. Although I have not adopted all the headings set out by the Defendant in closing submissions, the following summary is an outline response to the list of questions posed within them:

I considered carefully the argument in respect of contributory fault. There were arguments to support the case that no reduction should be made for contributory fault.

The base of the bollard on the road was unmarked and blended with the colour of the tarmac. That is notwithstanding that there was lighting affixed to the side of the hoarding. The accident took place at dusk. The Claimant was not walking, but cycling and therefore moving at a faster speed than a pedestrian. There were no signs or other information alerting the Claimant to the potential hazard on the road. In these circumstances the Claimant, in my judgment, arguably cannot, fairly or reasonably, be criticised for not noticing the base unit was a danger on the surface of the carriageway.

He was, however, cycling close to the centre of the division between the two cycle lanes, having passed a white line dividing both lanes, and where reflective cones ahead further indicated the demarcation between the two lanes. His concern to avoid the barriers to his left was a reasonable one.

It is certainly arguable that the Claimant could not, as the road appeared to him, reasonably have predicted or foreseen that cycling close to or on the white line (when no cyclists were travelling in the other direction), would have led him to travel over a raised bollard base or other obstacle in the road. There was no suggestion that he was travelling too fast.

However, in order to have struck the bollard, the Claimant must have been cycling on or close to the white line. He was cycling within an adjusted road layout and bollards were visible ahead of the Claimant. Cycling close to that white line should have led to the Claimant taking a degree of extra care.

On the specific facts of this case, there was, in my judgment, some limited, fair criticism of the Claimant’s positioning on the cycle lane. This was despite the absence of any immediately apparent or foreseeable risk of hitting the unmarked base of the bollard itself. There were, however, visible demarcations he had just passed and ahead of him indicating to him that he should be in the left-hand cycle lane. Although there was no credible evidence he was cycling over his side of the lane, I consider that the fact that he was positioned so close to the centre of lane required him to exercise additional caution (for example speed or additional vigilance) because he was at risk of travelling outside of the marked lane. This was a factor which should be reflected in damages, albeit by a small degree, and I consider that the appropriate percentage by which the deduction should be made is 5% only. I came close to not making any deduction for contributory negligence because of absence of any immediately apparent or foreseeable risk of hitting the unmarked base of the bollard. For the reasons set out above, however, I have, just, considered that this reduction should be made.

To describe that which occurred as simply “a fall from a bike” or simply “fallen from his bicycle” as was expressed during the trial by the Defendant at times did no justice to that which, in fact, occurred, was experienced by the Claimant and witnessed by others. What occurred was a traumatic event which has left the Claimant with a life-long physical limitation in his left arm. The Defendant fairly accepted in closing submissions that the injury to the Claimant’s elbow was a serious and significant one.

In my judgment, the Claimant suffered an open fracture to his left distal humerus involving the elbow joint; secondary left frozen shoulder; generalised cuts and grazes, and a psychological sequale. The accident itself was traumatic. He was assisted by members of the public who called emergency services and made contact with his wife. In hospital (where he stayed for 5 days and underwent surgery which involved plating) he was, shortly after admission, given a blood transfusion.

Although it has taken time, the recovery from that injury is, in the view of the orthpeadic experts, a reasonable one.

The Defendant asserted that the Claimant had been deliberately exaggerating the impact of the injury and in respect of the psychological injury been fundamentally dishonest.

The simple answer to this aspect of the case was that, on balance, I believed the evidence I heard and saw from the Claimant, which was supported both by his wife and by his work colleague Mr Jo Orton. I found both Rachel Brown and Joe Orton to be straightforward and honest witnesses and that their accounts supported the Claimant’s.

I preferred that to the evidence placed before me by the Defendant as a result of which it invited me to make a finding of exaggeration, dishonesty or malingering. That evidence included:

I was not, on balance, persuaded that the Claimant was, or had been, deliberately dishonest about his experiences. His account of those experiences was of his own, subjective, experience. He was, in my judgment, at times genuinely distressed about the events he recalled and described in evidence, and at other times when listening to the evidence of others. I accepted the submission that the Claimant was subject to rigorous and lengthy (but legitimate and professional) cross examination where his experience was at times minimised to having just fallen off his bike. His evidence was not perfect: at times he did not recall detail. However, the overall impression I had was of a witness doing his best to recount and describe his experiences and how he genuinely and honestly felt.

The Claimant’s perception of those experiences have, in my judgment been coloured by the depression and PTSD he has experienced and lived with. Not only is that likely to have led him to look at the events, and his recovery, in a more negative light than some others may have done, but I also discerned a need within the Claimant’s evidence to try to persuade those listening to him about just how hard the injury and experience of it had been (by which I mean subjectively experienced) by the Claimant. I was satisfied that that which he described was his reality, how he felt. He was not, viewed objectively, dishonest about that: what he described was what he genuinely felt. One pertinent example of this was what I considered was the Claimant’s genuine anxiety/shock/disbelief when giving evidence about his responses on the GAD. It was put to him that his responses were similar to that which might be expected of an individual who had suffered the trauma of the holocaust. He was clear that he did not equate that he had experienced with that. However, he also explained that he answered what he thought reflected how he felt, that that which he stated in response to questions from the experts was a genuine reaction to how he felt at the time.

He did not hide from acceptance that some of his test results from his interview with the Defendant’s psychiatrist were unreliable. He explained the difficulties around the appointment with the Defendant’s expert and stated that if given different conditions he would have answered them differently. In other elements he explained his answers being genuine reactions of how he felt at the time (eg on the PHQ 9).

In terms of his physical injury, Dr Perez examined the Claimant twice and wrote four reports. His first report was dated 16 August 2020. He wrote it after he had examined the Claimant by video, 9 months after the accident. The third report was dated October 2023. Mr Perez wrote it after having examined the Claimant in face to face appointment. The second and fourth reports were dated 28 July 2022 and 14 March 2025. The latter was written after viewing the Defendant’s covert surveillance footage and without any further examination. The second report was written after Mr Perez had seen scans undertaken but without any examination.

I consider that accident has had a significant impact upon the Claimant’s life. Cycling was a major part of his life, both as a hobby as a keen cyclist, but also living in London it was a free and enjoyable form of transport. The Claimant was able to fit exercise into a daily routine and around work commitments and home responsibilities, particularly with a young family. After the accident he stopped cycling. He struggled with the physical injury itself, but also with the wider impact of it upon his life.

His wife spoke about how the Claimant became more down, negative and not the individual he had been. She stated that living with the Claimant was sometimes like walking on eggshells. She stated that they had a happy family life prior to the accident, but that that changed after the accident: he withdrew and was sad, moody , snappy with the children.

The Claimant’s colleague, Jo Orton stated that before the accident C had been very successful at work, describing him as having zest, vibe and ambition. In his view, that changed after the accident. He explained that a ‘leaderboard’ operated in the business where he and the Claimant worked which ran from mid June to late October in general, although precise dates varied year on year. He explained in evidence that, pre-accident, the Claimant performed very well and did well in terms of his ranking on that board. It was suggested to him that he didn’t win it, or was not in scope to do so. His response was that in 2019 “he might have won it: he was there or thereabouts. One of the top contenders”. He stated that he was definitely ranked higher than Jo Orton himself.

As set out above, Rachel Brown explained living with the Claimant was sometimes like walking on eggshells; that he is anxious now when he comes home from work. She believed that the change occurred after the accident. She stated that he was, simply, a different man after the accident: withdrawn, sad, moody and snappy with their children. She explained difficulties developing in their relationship because of the change in him. Eventually she encouraged him to have counselling. There was some evidence that the Claimant sought support from a counselling service (Wisdom) whilst in hospital in the immediate period after the accident. Mrs Brown believed he tried, unsuccessfully, some counselling in February 2024 but that the relationship between the counsellor and the Claimant did not ‘gel’. Eventually, he undertook psychological therapy in 2024 successfully. Thereafter the evidence suggested that the Claimant became more motivated for example, speaking to a treating surgeon (Mr Sakkar) about surgical options for improvement.

Although the Claimant’s evidence about improvement in his conditions coincided with the time when video surveillance took place, I was not satisfied that the evidence I heard and saw about improvement was unreliable. The improvement, in particular, corresponded in an improvement in the Claimant’s mental health as a result of some psychological intervention. I considered that that was more likely to explain the timing than deliberate exaggeration or deceit by the Claimant.

There was no dispute between the parties that the Claimant’s physical injury was a significant one. The Orthopaedic experts also agreed on the following:

The evidence before the Court at the hearing was that the Claimant’s frozen shoulder had improved significantly by March 2025. However, Mr Perez had observed muscle wasting as a result of the frozen shoulder as set out below.

Neither orthopaedic expert considered that the Claimant was deliberately exaggerating his physical injury, or that he was deliberately malingering. Mr Perez, the Claimant’s expert, stated in oral evidence that the Claimant’s injuries were significant and that, in his opinion, some individuals who had suffered such an injury would not have returned to work at all. He also stated that did not believe that the Claimant was or would have been able to ‘pull the wool over’ his, the examiner’s eyes, during examination. In oral evidence, Mr Owen-Johnstone on behalf of the Defendant considered that the Claimant, in coping with the injury and its effects was somewhat, “glass half empty rather than a glass half full”, and that he tended to dwell on the limitations, despite having done well in terms of recovery and progress. Nonetheless, he was clear that that did not, in his opinion equate that to deliberate exaggeration of injuries.

I considered that Mr Owen-Johnstone’s description of how the Claimant had coped with the injury and its effects was likely to be correct. The Claimant cannot, in my judgment, be criticised for being less stoical than some others might be. Equally, from the evidence of Mr Perez, it is clear that the Claimant has shown more resilience than some others may have done.

In Mr Perez’s most recent report he noted that the range of motion in the Claimant’s left shoulder had improved. However, in oral evidence he stressed that clinical examination revealed clear wasting, quite marked to the scapula, and referred to the notes of clinical examination at paragraph 7 of the report. There was evident mild wasting of the deltoid, supraspinatus and infraspinatus muscles still visible, with mild scapulothoracic dysfunction. He considered that that which he recorded there were genuine clinical symptoms, noting weakness in the rotator cuff muscles. He stated that there was some prognosis for improvement but that as this was now a long-standing shoulder injury recuperation of lost muscle may not be possible, particularly with the rotator cuff where fatty tissue may develop. Significantly, the range of movement in his left elbow and left forearm remained was restricted as before with no change. There was nerve sensitivity, muscle wasting and weakness in the left ulnar nerve area and that there had been a deterioration in that since the last assessment. The Claimant’s left pincher and key grip were diminished as before.

Mr Perez opined that the recovery he saw in in the Claimant’s shoulder in early 2025 had exceeded his previous expectations and opinion. He no longer considered that surgical treatment would be required. Mr Owen-Johnstone agreed. Although there was marked improvement in the Claimant’s left shoulder symptoms, those which remained in March 2025 would, in Mr Perez’s view, on the balance of probability, be permanent with no prospect for mitigation or deterioration. I did not understand Mr Owen-Johnstone to disagree with that. His view however was that the functional limitation left was somewhat less than Mr Perez identified, although I did not understand there to be significant disagreement between the experts.

For example, Mr Perez considered that there would be an ongoing limitation in the Claimant’s driving ability because of the injury. He considered the Claimant could drive a manual car but with some pain and discomfort. He considered that he could mitigate that by driving an automatic car. Mr Owen-Johnstone considered that the injury itself would not impede driving; rather, what would do so was the discomfort and pain. He thought it would be sensible to limit the length of time the Claimant drove. He also considered that the use of an automatic car would be reasonable, albeit not essential.

In respect of the left elbow specifically, Dr Perez stated that the Claimant had symptoms of activity related pain. In his opinion, there was no change to the restriction in the Claimant’s left elbow movement or the Claimant’s severely limited forearm pronation (ability to move his hand into a palm down position) between his second and third examination. Mr Perez explained that that pronation was required for the vast majority of desk-based activities e.g. keyboard and mouse use and, further, that the vast majority of manipulative task ranging from factory production line assembly to piano playing are also undertaken in pronation. This limitation was evident in my judgment. The Claimant can put his hand into a palm down position provided he can move his left elbow out, far away from his body to do so. The rotation comes now, not from his elbow, but by moving from his shoulder. This could be seen both in the court room, and, in my judgment, in the covert video footage. Whilst the Claimant could, in the latter, lift a dustpan with a long handle over a wall, he did so by moving his elbow out. What he cannot do is keep his elbow tucked into his side, and turn his hand down. Having listened to the evidence regarding this type of injury and seen the Claimant explain the problems he has encountered I considered that this movement is one which is likely only really appreciated once it is lost; the frequency with which people turn their hand down by way of rotation from the elbow is something taken for granted, until it cannot be done.

Again, I did not understand there to be very significant disagreement between the experts regarding this matter. My view was that Mr Owen-Johnstone clearly considered that the injury was not as restricting Mr Perez concluded. For example, he could see no reason why there would be limitation in the Claimant’s ability to work at a height above his head (decorating), nor eating: he could swap hands or use specialised cutlery. That latter evidence, in my judgment, reflected that adjustments could be made to ease management of the consequences of the injury. However, the effects of the injury, and the need to implement management strategies remained.

Mr Perez considered that, in March 2025 there was some improvement in the injury involving the left ulnar nerve: the Claimant felt that numbness in the left ring and little fingers with hand weakness had improved. However, clinical examination confirmed deterioration with increased nerve sensitivity and hand weakness with left power grip at 50% compared to the right dominant side. Mr Perez’s evidence regarding treatment recommendations were unchanged: without treatment further neurological symptoms were likely to be permanent and, would lead to a genuine risk of deterioration with compromise to ulnar nerve function. Mr Owen-Johnstone agreed that nerve transposition surgery was required.

Mr Perez considered that there was a 20-30% risk of early onset of osteo-arthritis. In oral evidence Mr Owen-Johnstone, in oral evidence, stepped back from the conclusions he had agreed to in para 3.7 of the joint statement. He appeared to agree that there was some likelihood of arthritis, but that it was difficult to put a figure on it.

There was no dispute between the parties that the Claimant’s injury was a significant one. Equally, there was no real dispute that the Claimant, prior to the accident, had been a keen cyclist who used cycling as a means of commuting to and from work, and enjoyed cycling as a hobby and social activity.

There was no dispute that after the accident the Claimant suffered from depression and PTSD, although there was a dispute as to the extent of and degree of those symptoms. Significantly, the Defendant alleged that the Claimant was malingering and had exaggerated his symptoms

The Claimant relied upon the expert evidence of Dr Gibbons, Consultant Psychiatrist. Dr Gibbons produced three expert reports dated August 2022, July 2023 and 13 March 2025. The Defendant relied upon the evidence of Dr Wise, Consultant Psychiatrist. Dr Wise produced two reports dated 30 May 2023 and 25 March 2025.

Again, there was a degree of agreement between the experts. In the joint report Dr Wise and Dr Gibbons agreed

In Dr Wise’s opinion, the Claimant met a number of criteria for malingering. He opined that if that evidence was accepted, it was difficult to know how impaired the Claimant actually has been or is. Dr Wise also considered that the Claimant met the criteria for an alcohol misuse problem.

Dr Gibbons expressed reservations about the tests carried out by Dr Wise in order to reach his opinion that the Claimant met relevant criteria for malingering. These tests were, broadly, referred to as ‘validity’ testing/ ‘symptoms validity testing’ or ‘performance validity tests’. Dr Gibbons expressed concern regarding the contextual limitations of the evidence advanced by the Defendant (through the opinion evidence of Dr Wise), specifically regarding psychological and physical health variability, the potential for bias, a possible overemphasis of malingering detection and a potential lack of holistic assessment.

In an opening document prepared by the Claimant, it was submitted that the Court must have regard to the domain within which Dr Wise and Dr Gibbons gave their expert opinion: Dr Gibbons is a Psychiatrist, not a Neuropsychologist and, it was submitted, her expert evidence, properly so called, was limited to her area of expertise. It was submitted that to the extent that Dr Wise sought to advance expert evidence as a neuropsychologist, or to the extent that he had formed his expert opinion on the basis of that area of expertise, that evidence was not properly admissible.

As set out above, Dr Wise prepared two reports. After the assessment which led to the first report, the Claimant prepared a witness statement. The evidence was that was prepared before disclosure of Dr Wise’s report to the Claimant. The Claimant set out his subjective experience of the appointment. He found the appointment difficult, at times oppressive. He was concerned about the appointment and its consequences.

The two psychiatric experts had different opinions and based those opinions on different assessments. Dr Gibbons performed what might be described as a traditional, holistic assessment. Inevitably this required her, to some significant extent, to base her opinion on self report. Her assessment was holistic, and her opinion one she reached against a background of extensive experience in psychiatry. She perceived the Claimant to have cooperated in the assessment and to have been genuine and open.

Dr Wise relied significantly upon the results of validity testing carried out during his assessment.

Dr. Gibbons questioned the use of so many tests within a medico legal context, particularly when administered by a defendant psychiatric expert. She considered that there was a risk that their use may have led to a lack of holistic assessment.

Dr Wise considered that the Claimant performed particularly badly within the tests he performed and, further, that that poor performance could not be adequately explained by the Claimant not trying during the assessment. This was because he stated that the Claimant had, in response to a question, stated that he had tried his best during the tests. He did not consider that the performance could have been impacted by the Claimant’s dyslexia, nor by any other factors.

On balance, I preferred the evidence of Dr. Gibbons. She gave her evidence in a straightforward and measured way. She was impressive. She conceded the limitations of her assessments and did not profess expertise in areas where she had none. Her report might be described as ‘brief’, but it was clear, readily understandable and, in my judgment reflected that which she described she had undertaken, a thorough and holistic assessment of the Claimant taking into account relevant evidence.

Her assessment of the Claimant as being genuine in that which he said, but at pains to persuade others of the impact the accident had upon him and different aspects of his life resonated with that which I heard and saw in evidence. I also considered that her evidence that his account was impacted by the depression he had lived with was very likely to be accurate.

Dr Wise gave clear evidence and sought to assist the Court within his area of expertise. He did, in my judgment, rely heavily upon the validity testing he performed. As set out below, I consider that there are real limitations with the evidential value of those tests without the Court and parties’ ability to understand and scrutinise the tests and responses.

The Claimant made a number of submissions regarding Dr Wise’s evidence to the extent that it relied upon the validity tests administered. These included that the evidence was not admissible as expert evidence, that if it was, permission to adduce this particular form of expert evidence (given that qualification as a psychiatrist does not automatically provide the expertise necessary to administer the tests) should not have been granted; that there had been unjustified and inappropriate non disclosure of the tests and answers given; that the test results were not admissible, alternatively, unfair and should be treated with caution or disregarded; that Dr Wise’s evidence did not (because he is neither a psychologist or neuropsychologist) have the ability to explain fairly the range of opinion on the subject of validity testing in compliance with CPR 35 PD (6) where there is a range of opinion on the matters dealt with in the report –(a) summarise the range of opinions.

I have set out above, my primary conclusion in respect of this aspect of the case rests upon my assessment of the witness evidence which I heard and saw. My initial impression of the Claimant’s evidence was supported and corroborated by the evidence of Mrs Rachel Brown and Mr Jo Orton, both of whom I considered to be impressive witnesses.

In respect of the validity testing, I make the following points:

Further, I consider that there were a number of factors which are likely to have impacted upon the results all of the assessment undertaken by Dr. Wise. First, the Claimant had not appreciated how long the appointment would take. That was his error and his mistake for which there was no justification. He accepted that. Nonetheless, I accepted his evidence that he had made that mistake. He attended in his lunch hour believing that the assessment would be significantly shorter than it was. During it, he felt under pressure, both the pressure of time and, the pressure of the situation: being assessed by the Defendant psychiatrist in respect of his injury. He perceived the assessment to be intrusive and overly extensive. For example, he could not understand why he was being asked questions about his childhood or any adverse childhood experiences. That added to his sense of agitation and unease.

The Claimant is dyslexic. He had not informed Dr. Wise of that in advance, or during the assessment. He found the forms difficult to complete. I believed his evidence about that and also that of his wife, Mrs Brown that form filling was something that she undertook, not the Claimant because he finds it difficult. Finally, I consider it likely that, as these different factors came into play, the deteriorating relationship and rapport between Dr Wise and the Claimant was not conducive to a successful assessment, by which I mean an assessment which achieved the most accurate outcome. I believed the Claimant’s oral evidence that he simply wanted to get out of the meeting and rushed. Consequently, I consider it likely that his response to the question “have you tried your best?” was inaccurate and positively misleading.

The fact that the appointment was difficult was supported by the statement prepared by the claimant in advance of receipt of Dr Wise’s report in which he set out his concerns about the appointment. The timing of that statement, evidentially, supports the fact that the Claimant felt that the appointment was a difficult one and had not gone well. It may be less likely to suggest that the Claimant faked concern about the appointment because the issues he raised were raised before he knew about the outcome of the tests, particularly the validity tasks.

In respect of the elbow injury, the Claimant submitted that the appropriate bracket within the JSB guidelines was at Section G(b) Chapter 7, namely less severe injuries to the elbow and which caused, “impairment of function but not involving major surgery or significant disability.” That bracket ranges from £19,100 to £39,070. The Claimant submitted that compensation for the injury sustained was at the highest end, or just beyond the (b) category: the Claimant had to have major surgery and further surgery remains anticipated, albeit less than originally anticipated. It was submitted that scarring is an aggravating feature of the injury, as was the ulna nerve injury which, led to altered sensation at times through tingling etc. It was recognised the anticipated surgery could improve this. It was submitted that the Claimant’s injury was not ‘severely disabling’ to warrant the (a) category.

The Claimant submitted that the shoulder injury came within the moderate bracket in Section C(c) of the JSB Guidelines: “Frozen shoulder with limitation of movement and discomfort with symptoms persisting for about two years”, which would also encompass soft tissue injuries with more than minimal symptoms persisting after two years, but which were not permanent. It was submitted that this justified an award within a bracket of £9630-£15580. It was submitted that the shoulder element should be considered at the top end of this bracket, or just beyond due to length of persistence of shoulder symptoms.

The Claimant submitted that the psychiatric and psychological injury for PTSD came within Section B(c) of Chapter 4, cases where, “the injured person will have largely recovered, and any continuing effects will not be grossly disabling” (£9980-£28,250). It was submitted that this remained the appropriate bracket, notwithstanding the recognised improvement in his symptoms and the good prognosis for treatment. It was submitted that the length of time since the accident during which they had persisted was significant; with treatment prognosis now being good. It was submitted that the psychiatric injury sustained by the Claimant came within the middle to higher end of the bracket.

It was submitted that given the severity of C’s initial injury, the significant effect the injury still has on his life, but taking account in overlap of loss of amenity as between the Claimant’s injuries, the appropriate award for General Damages before inflation would be in the region of £55,000 and that with an uplift for inflation the appropriate sum was £57750.

The Defendant asserted that the appropriate award for the shoulder and elbow injuries combined was £30,000. The Defendant placed the elbow injury in chapter 7(g)(b) of the Guidelines, namely, less severe injuries, “causing impairment of function but not involving major surgery or significant disability” for which the bracket was £19,100 to £39.070.

I considered that the Defendant’s submissions and assessment did not adequately reflect either the severity of the injury, the surgery undergone and still recommended, or its long term impact or aggravating features identified by the Claimant in submissions. The scarring was significant. So too is the likely permanent limitation in the ability to move the lower arm and hand so that the palm of the hand faces down. This is a significantly limiting in modern life where typing is now so prevalent. I also considered it likely that there was risk of arthritis as opined by Mr Perez, in the region of 20-30%.

Mr Perez examined the Claimant in March 2025 after some improvement. Mr Owen-Johnstone did not.

The counter schedule and submissions of the Defendant did not address other aspects of the quantum for compensation in respect of the other injuries, the shoulder injury and the psychological/psychiatric injury. I considered that the figure advanced by the Claimant for general damages was within the appropriate bracket and one which was reasonable, neither excessive nor unjustified and I make an award in that sum.

The evidence was that the Claimant cycled to and from work prior to his accident. He used his bike as a mode of transport. After the accident he was unable to: understandably he was fearful of doing so. His wife too was concerned about him cycling. He lost this inexpensive mode of transport. The therapy he has received, and which has been successful, involved a suggestion that he leave the ‘old Will’ behind. He appears to have made progress in adopting this approach, part of which has meant he has worked to not focus on the loss of cycling, both as a hobby, family activity, and as a form of transport. In my judgment, he should receive compensation for his travel expenses whilst living in London.

An important area of dispute in evidence concerned the Claimant’s decision to move from London to move to live, with his family, in Leigh on Sea. His evidence, supported convincingly by his wife, was that this move was triggered by the accident. After the accident, and after the Claimant had returned to work for a short period of time in late 2019, he and his wife visited friends living there. They discussed the possibility of moving there, envisaging what life might be like. By this stage it was clearly evident to both of them that the Claimant was finding the commute in London to be uncomfortable and distressing. In addition, I considered that the evidence of the Claimant was that his connection and happiness in living in London was, to some extent, linked to his cycling hobby: living in London and cycling were closely linked. Family life was much harder without the ability to cycle. There were also associations with London with the accident: the cycle route to work; the noise and busy nature of London (including frequent sirens); the house they lived in and where the Claimant’s initial recovery began. They began to make enquires about schooling.

In March 2020 the Covid lockdown occurred. The family took active steps to move with the house going on the market in the autumn. In evidence, both the Claimant and his wife accepted, in my judgment, that the Covid pandemic was not irrelevant in the timing of the decision to move. However, I considered that the clear evidence before the Court was that the family were settled in their life in London. The house in Leigh on Sea was not an improvement: they did not need a larger house and they already had a suitably sized comfortable garden with children’s play equipment and a tree. No more children have been born to the family since the move.

On balance, I consider that had the accident not occurred, the Claimant and his family would not have moved to live out of London. I considered that they may have moved slightly later (doing the best I can on the evidence within about 2 years) and having given more time for reflection on such a big decision. They moved, however, in my judgment, because of the consequences of the accident and the impact it had on the Claimant, not because of Covid. The decision to do so, in my judgment, was reasonable. The Claimant was not simply someone who cycled occasionally. Cycling was an intrinsic part of his life and he derived great benefits from it: economic, and for his mental and physical health. The loss of that was significant. The decision to make a significant change in lifestyle was a reasonable attempt to manage and mitigate the consequences of what had occurred. It came with disadvantages: loss of shorter journeys to commute, and loss of an established social network.

There was no credible evidence upon which I could find that the Claimant had failed to mitigate his loss by not moving out of London to a closer location. The burden of proving that lay on the Defendant. It did not, in my judgment, discharge the burden upon it. Submissions made by the Claimant regarding the fact that reasonable alternatives were not advanced were well made. I considered that the removal costs of moving from London to Chalkwell were recoverable. I was less clear that the costs of moving twice (once to a rental property and the second to the house purchased by the Claimant) were reasonably recoverable: whilst the need to move out of London was attributable to the accident, the evidence suggested that the two moves were attributable to preference of property/ some time for further reflection before making a decision. If quantum remains disputed regarding this head of loss, I would require further assistance from counsel regarding the evidence at trial regarding this head of loss and the extent to which it was challenged before making a final determination. I do not consider that a further hearing would be required: simply further short, written submissions.

The only items which appeared to remain in dispute were the bike which, on the Claimant’s case, was damaged beyond repair, and the apple watch. There was not cross examination on these items. I consider that the Claimant should recover them.

The orthopaedic experts agreed that it would be reasonable for the Claimant to use an automatic car to ease the discomfort and pain associated with driving. I considered that this is a recoverable head of loss.

The Claimant asserted that he suffered a loss of earnings because his payslip for January 2020, when he returned to work, reflected work done in December 2019. The Claimant’s case was that, had he been at work, and his team had not managed by a different manager but had been managed by him, he would have been likely to have earnt more. This was because of lower productivity. On the basis of the evidence of Jo Orton, I was prepared to accept that the Claimant was a high performer at work and that that which he asserted in respect of this head of loss was more likely than not to be accurate. I award the sum of £1209.53 in full.

The sums claimed for aids and equipment appeared not to be challenged and they were supported by evidence in the bundle.

The Claimant made a claim for care and assistance for the first week post-accident at 7 hours per day and thereafter at a rate of 2 hours per day until November 2019. I found Mrs Brown’s evidence credible and compelling about additional work she had undertaken whilst the Claimant was recovering. The figure claimed was based on the National Joint Council carer rates and had been subject to a reduction of 25% for gratuitous care.

I considered that the Claimant should recover compensation for past assistance for decorating and DIY tasks in the agreed figure of £1950. I also accepted that the Claimant was unable to assist with household cleaning. The Claimant made a claim for cleaning costs from 5 September 2023 to 1 October 2024 at a rate of two hours per week. As set out at pages 138-9 of the trial bundle (updated schedule of loss) this was an estimate of the hours during which the Claimant incurred additional cleaning costs. For a period of time (August 2022-October 2024) a cleaner was engaged for 4.5 hours per week. That subsequently reduced by half an hour a week. The Claimant’s wife (who was cross examined on this head of loss) accepted that the larger house needed some more cleaning than the house in London had required. However, the question to be addressed was whether, had the accident not occurred, the Claimant would have undertaken some of the cleaning task between 5 September 2023 to 1 October 2024. The Claimant was not cross examined about the cleaning which he did. He asserted that, during the relevant period it was, approximately, 2 hours per week. The claim of two hours for a limited period of time sought to provide the best estimate of the loss incurred, attributable to the accident, but taking account of the larger house and the fact that no cleaners worked during Covid. I consider that the Claimant should be entitled to recover a sum to represent the cleaning work he was unable to do because of the accident and I consider that he should be entitled to recover the sum claimed. I initially considered that the fact that the cleaner’s hours reduced when the Claimant’s health improved provided an indication that the extra half hour a week properly represented the work the Claimant was unable to do because of the accident. That, however, did not properly take account of the time for which this head of loss was claimed and the basis for its calculation.

My understanding is that the parties agreed compensation for past physiotherapy costs: to the extent that there remains a disagreement, the parties will need to clarify the position. There was a dispute between the parties about gym membership. I refer above to my conclusions that cycling had been an important part of the Claimant’s lifestyle and fitness. I consider that the evidence suggested that the gym membership, including swimming and the sauna, assisted the Claimant in maintaining attendance at work, his recovery and the alleviation of his symptoms, both physical and mental. I accept that he had a gym membership before the accident. To the extent that the cost of the gym is greater than that which he would have paid had the accident not occurred, I consider that this is a recoverable item. It is for the Claimant to prove the loss in respect of each head of loss claimed.

I considered that compensation for unused theatre tickets, medication and soft play membership were recoverable and had not been challenged in evidence.

I considered that Jo Orton’s factual evidence in respect of the Claimant’s claim for future loss of earnings was particularly significant. I found his evidence straightforward and credible: the Claimant was very successful; he was doing well and there was no reason to doubt that he would continue to do so. I simply did not accept the assertion made by the Defendant that disappointing performance at work since 2019 was because the Claimant was never going to achieve more than he had. That was an assertion, but no more. It was contrary of the evidence of Jo Orton. Equally, the Claimant gave evidence of difficulties he had on specific accounts and the problems which arose. In my judgment, the lack of promotion before the accident did not reflect the Claimant’s ability, rather the limited opportunities which there had been. The accident not only had an impact on the Claimant’s physical health, it also had a significant adverse impact on his mental health. I accepted the Claimant’s evidence on this, supported as it was by Jo Orton and the Claimant’s wife.

I refer to my conclusions above regarding the impact of loss of pronation from the elbow. It impacts the Claimant’s ability to work from his desk. The Claimant’s occupation requires him to speedily answer incoming calls on a phone whilst also accessing a computer and keyboard. Jo Orton described this as “fastest finger first”, which emphasised that speed in answering calls led to better results. The Claimant answered the phone with his left hand. Doing this work with the injury he has requires adjustment. He cannot type properly with his left hand without the use of an aid being a standing desk and keyboard. It was not, in my judgment, fair to then conclude that the disadvantage caused by the injury is removed. It is not. Rather an adjustment is made. That adjustment however brings with it other disadvantages, contributing to fatigue and potential pain and possible loss of focus or concentration and motivation as was set out in the evidence.

The Claimant considered that he lost both sales, and promotional opportunities due to lack of productivity, worse responsiveness to customers and deterioration in his managerial skills from snappiness. On the basis of the evidence I considered that this was more likely than not to have been the case. The Claimant and Jo Orton’s evidence painted a picture of a working environment where energy and positivity was likely to affect management success and sales.

The Claimant’s unchallenged evidence was that he has not informed his employer that performance issues are related to his accident-related injury as he fears that that information that could jeopardise his job.

There was an agreement between the parties, and experts that the Claimant is disabled for heavy manual work. I found Mr Perez’s evidence persuasive that he will also be for other work, including the work he does, because of the injury and the lighter work (including his own and other desk or office work) which includes the requirement to pronate his forearm normally. Adjustments can be made to minimise the impact of the injury, but that does not eradicate the disability caused by the injury.

I considered that the Claimant qualified as disabled within the meaning of the DDA 1995. The injury to the elbow (and consequent impact on the shoulder ) has lasted for more than 12 months. I am entirely satisfied that it has had a substantial (more than minor or trivial) impact on his ability to carry out day to day activities. Turning your hand to a palm down position is one obvious example. The other physical and mental consequences of the injury would also meet that test, concerning manual dexterity (eating) for example. The fact that adjustments can be made does not diminish the disability itself. Contrary to the submissions of the Defendant, the effect of the impairment does limit the kind and amount of paid work the Claimant can do. He cannot answer a phone and type as he would without the impairment. He cannot undertake office work as he would, without the impairment.

I have not gone on to calculate a figure for future loss of earnings at this stage. Nor set out further detail regarding disability. See further below.

This aspect of the case and the compensation sought was a significant one. The focus of the Defendant’s defence was upon its contention that the Claimant had significantly exaggerated his symptoms and was malingering. Having reached the conclusion that he was not, I considered that it would be appropriate, and just, for the Defendant, if required, to have an opportunity to make further submissions regarding the claim for future loss of earnings and, in particular, about whether a Smith v Manchester/ approach should be adopted, or a multiplier/ multiplicand approach. The submissions made by the Defendant in respect of this aspect of the claim were limited.

In addition, in light of the detailed conclusions I have reached, I considered that it would be in accordance with the overriding objective to provide the parties with a further opportunity to consider whether the remaining aspects of the claim can be agreed in light of the conclusions set out above. In order to assist the parties, and for clarity, having heard the evidence my judgment was as follows:

In respect of past losses, in evidence, there was no challenge to the annual travel costs, nor in respect of the Claimant’s evidence that he would have continued to cycle to work during his working life whilst living in London. I can not see any basis upon which those figures should now (after the close of evidence) be challenged;

I considered that the difference in price between an equivalent manual and automatic car is a recoverable head of loss, both past and future;

I considered that the Claimant’s injuries would have significantly impeded the Claimant in carrying out or assisting with removals.

The Claimant can recover the future cost of medical treatment. I preferred the evidence of Dr Gibbons as to likely number of sessions required. To the extent that there was a different between the evidence of the orthopaedic experts regarding cost of treatment, I preferred the evidence of Mr Perez who was consistent regarding the evidence regarding osteoarthritis and had examined the Claimant on a number of occasions. There will, inevitably, be a period of time when the Claimant cannot work following surgery. It was unclear the extent to which there was a dispute about the compensation due for that period of time. There will also need to be an award for gratuitous care and assistance. Again, the level of dispute regarding that head of loss was unclear.

The Claimant seeks a payment on account. The Court has not heard argument on this point, nor submissions from the Defendant. However, and subject to that limitation, it appears that there is no obvious reason why such payment could not, or should not be made.

I consider that the outstanding issues should be capable of resolution between the parties. In the event that they are not, any outstanding issues of quantum or special damages will be resolved by the Court. I would anticipate that short further written submissions on remedy, focused only on remaining issues in dispute should be sufficient, alternatively a short remote hearing may be required. I wish to be clear: this is not to enable either party to advance further evidence. It is for them to provide focused submissions and assistance to the Court in fairly resolving the remaining issues in light of the determinations made, particularly given the dismissal of the Defendant’s case on exaggeration and fundamental dishonesty. This approach should reduce costs whilst provide an opportunity for both parties to provide full submissions on the issue of future loss of earnings and pension loss, which I consider are the remaining largest heads of claim.

Time for permission to appeal should not begin to run until after determination of all matters relating to both quantum and liability. The question of costs should also be reserved until determination of all matters relating to quantum and liability.

The parties submitted written documents both in opening and by way of closing submissions. In those documents they set out the relevant legal principles, referred to relevant cases and made submissions as to the consequences of those principles and authorities for this case. I have considered them and applied them in reaching my decisions above.

The Claimant alleged that the Defendant was negligent in the installation or management of the cycle lane, alternatively caused or permitted a public nuisance on the highway for which it could not establish a justification. The Defendant accepted that it created the cycle lane, but denied negligence, denied it owed a statutory duty as an occupier of the cycle lane (because it did not have the requisite degree of control) and denied that the base unit of the bollard was a nuisance, alternatively denied that any nuisance was caused or permitted by the Defendant

Occupier’s liability, negligence and nuisance on the highway

There is authority that the basis for an occupier’s liability is” occupational control, i.e., control associated with and arising from presence in and use of or activity in the premises'. See Wheat v Lacon [1966] AC per Lord Pearson at 552(HL). The same authority supports the proposition that that control does not need to be complete. See per Lord Denning in the same case:

A public nuisance on a highway may occur when an act or omission prevents the convenient use of the way of passengers (per Byles J in R v Mathias (1861) 2 F & F 570), either through unreasonable obstruction on the highway, or by an act or omission which makes the highway dangerous or less convenient for public passage. See the Court of Appeal in Dymond v Pearce [1972] QB 496:

The Defendant invited consideration of Mint v Good [1951] 1KB 517 regarding the duty of care which may be owed to those who use the highway by those who deliberately or accidentally place things upon the highway; that the structure be as safe as reasonable care can make it.

The Defendant also referred the Court to Trevett v Lee [1955] 1 WLR 133. That case is authority for the proposition that something placed on the highway which may be dangerous will not necessarily constitute a nuisance if its presence was justified by public good or reasonable private use. In that case the Court set out an important balancing act to be undertaken when considering that question of justification.

This was an important aspect of the Defendant’s case in these proceedings. In particular, it was submitted that the balancing exercise which had to be undertaken by those designing and installing the scheme required them to achieve (i) a scheme which kept the cycle highway open; (ii) closed the road to motorised traffic; (iii) allowed emergency vehicle access; (iv) kept cyclists safe, including from motorised traffic whose drivers were intent on using the closed road; (v) delineate the two way cycle lane because of the volume of cyclists and to stop motor vehicle access. The Defendant’s submission was that the scheme implemented achieved those objectives, was fit for purpose and the use of pin-in bollards was reasonable and necessary. Further, the Defendant referred to that fact that a large number of cyclists use the cycle super highway (in the region of 160,000 in two months). However, only two accidents were reported. This, it was submitted, supported the Defendant’s argument that the balancing act fell in its favour and that, in truth, the bollard base was not dangerous.

The authority of Janet Dawkins v Carnival PC (T/a P & O Cruises [2011] EWCA Civ 1237 is authority for the proposition that once a prima facie case of negligence is established against a party for allowing a hazard to remain on, as in this case, the highway which was maintained by that party, it would be for that party to prove that remedial action could not have been taken by him or her because of the proximity in time between the hazard being there and the accident.

The Court considered the contents of the Red Book issued by the Secretary of State for Transport and others under s.65 of the New Roads and Street Works Act 1991. Its purpose is to help those working on roads and highways to, inter alia, carry out roadworks safely. See further the explanation of page 5 of the Code. Its legal status is described at page 6. There was no dispute that it applied to the Britannia Project, nor that it applied to and was to be followed by the Defendant. Strong recommendations for records to be kept are set out at page 7. The Court considered the Code as a whole, and pages 10, 12, 13, 15, 31, 35, 81, 82-3 in particular and those parts to which attention was drawn.

In respect of compensation of general damages, the Court considered the Judicial College Guidelines, 17^th edition, particularly chapters 7 and 4.

The Claimant invited the Court to award compensation for past and future losses, including loss of earnings. In respect of future loss of earnings, the Claimant invited the Court to adopt a multiplier/multiplicand approach to the assessment of future loss, alternatively to make a Smith v Manchester award. The Defendant made very limited submissions regarding compensation for future losses, drawing the Court’s attention to the Court of Appeal’s decision in Billett v Ministry of Defence [2015] EWCA Civ. 773.

The Claimant submitted that the Defendant was disabled within the meaning of s.1 of the DDA 1995: that, by reason of a physical or mental impairment there was a substantial (more than minor or trivial) impairment on his ability to undertake normal day to day activities, and that that impairment had, or was expected to have lasted for over a year, or is a progressive condition. Further, the Claimant submitted that the effects of the physical impairment limited the kind or amount of paid work the Claimant could do.

In determining whether the Claimant was so disabled, it was necessary to consider the Disability Discrimination Act 1995 Guidance on matters to be taken into account in determining questions relating to disability. The focus should be on what the Claimant cannot do, or can only do with difficulty, not on what can still be done. The Claimant asserted that the impairment impacted upon the following ‘abilities’ within Schedule 1, para. 4 of the DDA 1995: mobility (left upper limb); manual dexterity, physical coordination; ability to lift, carry or otherwise move every day objects. The Guide also sets out that it is necessary to consider impact upon an individual’s ability to carry out relevant tasks. For example, a physical impairment may mean that someone becomes more tired, or takes longer to carry out a task. Some of the relevant considerations were helpfully summarised in paragraph 67 of the Claimant’s Opening Note for trial. The Claimant asserted that he had suffered from decreased motivation and impaired concentration and that these matters should be considered when looking at that which he could not do, or could only do with difficulty.

In addition to meeting the definition of disability, the Claimant submitted that, in order to benefit from the Ogden 8 calculation in order to assess compensation, that the effects of the physical impairment limit the kind or amount of paid work he could do, particularly because of his restriction in palmer rotation.

Section 57(4) of the Criminal justice and Courts Act sets out the approach the Court must adopt if it finds that a Claimant has been fundamentally dishonest in respect of a claim or part of a claim. The Defendant asserted that the Claimant had exaggerated his injuries and was malingering. It asserted that the Claimant was fundamentally dishonest in respect of his deliberate exaggeration of psychological symptoms. I was referred to summary of the relevant law in Boyd v Hughes [2025] EWHC 435, at paras 227-237. I also considered Ivey v Genting Casinos [2017] UKSC 67 and cases cited in it. Dishonesty is something which many can easily recognise when they see it. Some people can carefully disguise dishonesty: as genuine mistake, or misunderstanding. Courts must be rigorous in their consideration and analysis of evidence when dishonesty is alleged.

Dishonesty involves a subjective mental state. However, the test for whether an individual has acted dishonestly is an objective one. As, perhaps, the fact of Ivey illustrate, it matters not whether a particular individual judges honesty and dishonesty by different standards. (In that case a professional gambler described how he, and another, persuaded a croupier in a casino, to present cards in a particular way (without her knowing) so that he had an advantage in the bets he placed. The Supreme Court held that it mattered not that he did not consider that which he did to be dishonest. By any reasonable objective standard, it was). The Supreme Court stated:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to the facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact Finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

In this case the Defendant asserted that the Court could safely conclude that the Claimant was fundamentally dishonest having regard to the video surveillance, and the evidence of Dr Wise. The detailed basis for those submissions were set out in the Defendant’s closing submissions.