Riding the mean streets

There is little obvious comparison between the winding back streets of the Black Country and the spectacular Alpe d’Hues or the grandeur of the Champs-Elysees, but this summer saw them host the Commonwealth Games times trials, inviting the world’s best (some of them, anyway) to come and ride the roads that us locals know all too well.  And us locals, proud as we were, cannot have missed the road closures, street signs, diversions and traffic lights as the local highway authorities frantically and diligently worked to bring the streets up to scratch for the eyes of the world – and to avoid the catastrophe of world’s elite falling foul of the curse of the English pothole.

But had the unthinkable happened, where could liability lie?  The highway authority or the event organiser?  This is not a question I intend to answer here – we know that every case turns on the facts – but  Without wishing to rehearse in detail the law we are all familiar with, we do need a whistle-stop tour to consider the point.

Section 41 of the Highways Act 1980 places a burden on the Highway Authority to maintain the surface of the carriageway.  The duty is not absolute – the highway need not be perfect, and as famously put in Littler v Liverpool Corporation (1968) "a highway is not to be judged by the standards of a bowling green."

But assuming a dangerous defect does arise, who’s on the hook?

Hilliard v Surrey County Council [2018] EWHC 3156 (QB), the Claimant along with 16,000 other participants rode 100 miles on closed roads in an event organised by Ride London.  It was claimed that the Claimant hit a pothole, approximately 30mm deep and fell.  The route had been inspected and deemed safe by both the defendant council and Ride London, although a number of defects were identified and were subject to a “watching brief”.  At first instance the Claimant succeeded, and on appeal there was no dispute that the Defendant, as the Highway Authority owed a duty under Section 41.  The claim failed on appeal however, as the Court found that the defect was not dangerous.

Hilliard therefore points to the local highway authority continuing to owe a statutory duty, even on closed roads that are not open to the whole public and usual traffic.  So, to what extent could the organiser have been liable?

The unreported case of Dougan v Bike Events Ltd (2021) arises following an accident around 47 miles into a 100-mile, open road charity bike ride.  The Claimant lost control on a sharp bend and collided with a vehicle being driven in the opposite direction.  The Claimant alleged the route had not been properly risk assessed and additional warning should have been in place at the bend.  The Claimant’s claim against the event organiser failed with the court adding weight to the absence of previous accidents, repeated pre-event warnings and adequate signage.

Although Dougan also failed, the case highlights that the event organiser can be pursued for perceived shortfalls in the risk assessment and route selection of public roads.

In the case of Wattleworth v Goodwood Road Racing Co Ltd [2004] EWHC 140 (QB), an experienced racing driver died when he collided with tyres on an earth bank at the side of the track.  The Claimant, the widow of the driver sued Goodwood, as the owners of the circuit and two of the regulatory bodies: the RAC who was the national body with power to licence motor racing venues, and the FIA, the body governing international competitive motor racing. Experts acting for both the RAC and FIA advised on safety, inspected and approved the track. The Claimant contended that Goodwood had breached its duty of under the Occupiers' Liability Act 1957 and that RAC and/or FIA had owed X a duty of care to exercise proper skill and care in their inspections of the track and their advice given to Goodwood.

In its judgment for the Defendants, the Court found that both Goodwood and the RAC owed a duty of care to the Claimant, but neither were in breach; Goodwood reasonably relied on the advice of RAC, and RAC’s advice was not negligent.  The FIA did not owe a duty of care as its involvement was less than RAC’s, and were too far removed.     

These judgments suggest that claimants might have a wide net to cast should accidents occur on a public highway (or on other public open spaces) during sporting events where the highway authority, event organiser and licencing authorities all have a role to play, and those roles might give rise to a duty of care. All parties should be alive to their potential exposure to the participants and seek advice if there is any concern or uncertainty where the limit of that exposure might lie.