Court ref:  CSOH 92
This was a case in the Outer House of the Court of Session. A cyclist was injured in Holyrood Park, Edinburgh when cycling along a cycle path. He claimed that he had inadvertently left the cycle path at a bend and fallen into a drain and gully adjacent to the cycle path. It was dark at the time and there was no lighting. The cyclist could not remember clearly what had happened at the time of the accident, but evidence was given by people who had witnessed the accident. It was claimed for Historic Scotland (who control the Park) that the accident could have been caused by defects in the bike, rather than a fall into the gully.
The court found that the accident was caused by the cyclist falling into the drain and gully that was alongside the cycle path. This was a danger that should have been obvious to the managers of Holyrood Park. The Scottish Ministers were therefore liable (on behalf of Historic Scotland) because of their negligence both at common law and in terms of the Occupiers’ Liability (Scotland) Act 1960.
It was not clear why the cyclist had left the path but he might have been dazzled by the headlights of oncoming traffic, or he might have been confused by the sudden bend in the path. As there was nothing to indicate that the cyclist had been at fault, there was no finding of contributory negligence.