Dougan v Bike Events Ltd: permission to appeal refused by the Court of Appeal

Spencer Turner provides an update on the Claimant’s application for permission to appeal to the Court of Appeal. The claim, in which the Defendant was represented by William Audland QC and instructed by Michael Gwilliam of Plexus Law, concerned an accident during a cycling sportive, a mass participation cycling event, on 4 September 2016. Our previous article setting out the background and discussing the outcome of the case can be found here.

The Claimant’s Application for Permission to Appeal

The Claimant’s application for permission to appeal was considered by Lewison LJ. The Claimant’s principal ground of appeal was that the trial judge failed to balance the evidence in reaching his conclusions. To succeed with this argument, the Claimant was required to demonstrate that the trial judge’s conclusion was rationally insupportable: Henderson v Foxworth Investments [2014] 1 WLR 2600.

In respect of the trial judge’s finding that the Defendant had not carried out a proper risk assessment, Lewison LJ stated that in order for the lack of a risk assessment to be directly causative of an injury it must be shown that a suitable and sufficient risk assessment would probably have resulted in a precaution being taken which would probably have avoided the injury: Uren v Corporate Leisure (UK) [2011] EWCA Civ 66 at [39].

In establishing what a risk assessment would have shown, the trial judge found that if the Defendant had carried out a risk assessment, it would have concluded that no additional precautions were necessary. Four reasons were given for that conclusion at [50] based on the evidence. Lewison LJ considered that it could not be successfully argued by the Claimant that no reasonable judge could have reached that conclusion.

In respect of causation the trial judge found that the Claimant was riding too fast and either did not see or chose to ignore the signage [39], that the Claimant ought to have been aware that the event was not a race and that it was his responsibility to ride in accordance with the Highway Code and road conditions at the time [45]. The trial judge’s conclusion that the accident “might have been avoided” had there been additional signage did not amount to a finding that the accident “probably would not” have happened.

Lewison LJ considered that judge’s conclusions on apportionment to be unassailable and dismissed the Claimant’s application for permission to appeal because the application did not have a real prospect of success.