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A vicious cycle: Holly Tibbitts reviews two recent cases involving cyclists injured in road traffic accidents

Articles | Mon 6th Mar, 2017

Despite recent investment in cycling infrastructure, Britain’s roads remain a dangerous place for cyclists. In the past week alone the Court of Appeal and the High Court have both handed down decisions in cases involving cyclists injured in road traffic accidents. What do these cases tell us about current judicial opinion as to the standard of care expected of cyclists and of other road users who interact with them?

In Rickson v Bhakar [2017] EWHC 264 (QB) the claimant cyclist was taking part in a time trial on a dual carriageway when he collided with the rear of a white van being driven by the defendant. Prior to the accident the defendant had been travelling in the opposite direction to the claimant and intended to make a right turn at a designated crossing place on the road, taking him across the claimant’s path. He thought it was safe to cross as he did not notice the claimant approaching. Negligence on the part of the defendant was admitted.

The issue at trial was whether the claimant had been contributorily negligent. The defendant alleged that as a result of the road layout his van would have been clearly visible, the claimant would have had ample time to adjust his speed on noticing the van and had he done so even fractionally the accident would have been avoided. According to the defendant, the only explanation for the claimant’s failure to do so can have been that he was not paying proper attention. The claimant, who had no memory of the accident and had been left paralysed, denied any lack of attention and relied on the fact that he was an experienced cyclist who had cycled races on this route before and was aware of the need to be careful at the junction in question.

Based on the expert evidence the court concluded that if the claimant had undertaken any braking at all the accident would have been avoided and it would have been possible for him to come to a complete stop before reaching the van. It was, therefore, satisfied that there was an opportunity afforded to a reasonable cyclist keeping a lookout to either come to a halt or decelerate even slightly and had that opportunity been taken he would not have collided with the van. The judge was of the view that the failure to observe and react to the van was a culpable failing giving rise to a finding of contributory negligence. However, his culpability was very much less than that of the defendant. He did not create the hazard, the defendant could make his turn at leisure and he failed to notice any of the race signs and monitors on the way to the junction, or the cyclists when he reached it. In all the circumstances the court made a finding of 20% contributory negligence on the part of the claimant.

In McGeer v McIntosh [2017] EWCA Civ 79 the defendant HGV driver had been stationary at a junction intending to turn left. There were 2 lanes of the carriageway, the right hand lane being for a right turn only, but due to the size of his vehicle and the sharpness of the turn, the defendant was straddling both lanes. The claimant cyclist approached the HGV from behind. The lights turned green and the HGV began to undertake its left-hand turn at the same time as the claimant passed along the near side of the vehicle and across its front. A collision occurred and the claimant was severely injured.

Liability was disputed. The claimant’s case was that the manoeuvre was intrinsically hazardous as the defendant was effectively turning left from the right-hand lane and that the driver had failed to make proper checks before turning. She alleged that she would have been visible at the time he should have checked his mirrors. The defendant stated that he had undertaken a proper check of his mirrors before turning, had seen nothing and was, therefore, correct to turn at the time that he did. He also alleged contributory negligence.

At first instance, the judge found the defendant negligent in two respects. Firstly, he concluded that the claimant would have been visible in his mirrors 3 seconds before he moved off and had he conducted a reasonable check of his mirrors before he did so he would have seen her. Either he had not been sufficiently careful when looking in his mirrors or he had left an inappropriate interval before moving. Secondly, he concluded that while it would not have been negligent to undertake the manoeuvre from the straddled position if the defendant had checked his mirrors both before and during the manoeuvre, the defendant had not checked his mirrors after he moved off and was, therefore, negligent. It was not safe to assume a cyclist would have been aware of the left turn indicator as this might have been obscured by another vehicle.

As for contributory negligence, the judge found that none of the defendant’s indicators would have been visible to the claimant as she approached. However, she should have realised before she reached the HGV that it was straddling 2 lanes and it was not safe to assume that it was going to go straight ahead. She could also not safely assume it was going right in the absence of right indication, despite it having moved slightly right when it moved off. She travelled down a hill towards the junction at a speed which would not have enabled her to stop if the HGV had made an unexpected manoeuvre. She had therefore been contributorily negligent.

In considering apportionment the judge found that the majority of the responsibility laid with the defendant, who was driving a dangerous machine and who, if he had exercised reasonable care, would not have driven across the path of the claimant. The judge, therefore, reached a finding of 30% contributory negligence. On appeal by the defendant, the Court of Appeal upheld both the finding of primary liability and the apportionment reached by the judge.

These cases indicate that while a high standard is expected of vehicle users who come into contact with bicycles on the road, the court will not be shy about making significant findings of contributory negligence against cyclists in appropriate cases. However, the courts remain mindful of the fact that a cyclist is a vulnerable road user whereas vehicles are potentially lethal weapons and it will, therefore, be a rare case where a cyclist bears the majority of the responsibility for an accident where primary liability is made out.

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