Tuesday 01 November 2011

Cyclists are often criticised for their riding –  indeed a new law may be introduced soon to create an offence of causing death or serious injury by dangerous cycling. But in fact, recent surveys make it clear that pedestrians are rarely injured by cyclists and motorists pose a far greater hazard to cyclists.

At Ridley and Hall we have a particular interest in cycling accidents. Janet Watson, senior litigator with the Association of Personal Injury Lawyers and keen member of a cycling group, is concerned:

“Motorists don’t pay enough attention to cyclists. They’re often impatient and try to overtake in dangerous conditions. Cyclists are even more vulnerable than pedestrians as we share the road and often can be travelling at high speeds. But we have a right to be there too!”

Janet has recently secured damages of over £10,000 for a cyclist who was involved in a rear end shunt as he approached a busy road junction. He was riding a racing cycle which was propelled into the air where it somersaulted and landed on the bonnet of the car before skating along the ground taking the cyclist with it. He suffered injuries to his face, hands, and feet. He was saved from further injury by wearing a cycling helmet and protective clothing.

Sarah Young, managing partner and head of the personal injury team is an expert in head injury claims. It is a sad fact that a number of cycling accidents involve head injuries particularly when a cycling helmet is not worn. There is, of course, no  legal obligation to wear a cycling helmet.

There are four cases recent cases which provide some interesting lessons for anyone interested in the law relating to cycling accidents:

Kotula v EDF Energy 2010
Thomas v Warwickshire CC 2011
Wilkinson v York CC 2011
Phethean-Hubble v Coles 2011

In Kotula v EDF Energy, Mr Kotula cycled to and from work in St Albans.  On 28th September 2006 he was cycling along a footpath on Park Street when he came to some street works being carried out by EDF Energy.  Park Street was a busy, dangerous road and it was his practice to cycle on the footpath.  There was a deep excavation in the footway with temporary plastic barriers surrounding it which made a narrow corridor next to the kerb.  The Judge found that Mr Kotula did not cycle through the street works.  As he was pushing his bicycle through the corridor he came into contact with a Mercedes lorry, which was being driven on the road next to the barrier and as a result sadly sustained a serious spinal cord injury which caused paraplegia.

There were 3 separate defendants and none of them would agree who was to blame for the state of the street works in place at the time of the accident.  All the parties’ experts agreed that the barrier system did not comply with the code of practice implemented for such works, namely ‘Safety at street works and road works – a code of practice.’  It was alleged that Mr Kotula had attempted to cycle on the pavement through the street works (contrary to section 72 of the Highways Act 1835). He was also, in the alternative, blamed for negligently cycling or walking through the area.  When an accident victim is blamed for being either partly or wholly the author of their own misfortune, this is called ‘contributory negligence’.  The Judge found that Mr Kotula was a lawful pedestrian on the pavement at the time of his fall and that there was no contributory negligence.  He considered that it was reasonable for Mr Kotula to take his bicycle along the pavement rather than riding along the dangerous road.  He was following a route that had been signposted for pedestrians.

The Judge held that the relevant part of Park Street was “dangerous for all but the most experienced, traffic fast, confident and dominant of cyclists”.  Although  it is illegal for cyclists to use the pavement, when weighing up the danger to himself (as opposed to pedestrians) it was a reasonable decision for Mr Kotula to ride on the pavement in this area rather than the road. He was not contributorily negligence.

In an article on the case the barrister who represented Mr Kotula, Nathan Tavares, commented “There is little that divides UK public opinion more than the actions of cyclists.  At the present time new legislation is being promoted to create an offence of causing death, or serious injury, by dangerous cycling.  Statistical analysis suggests that it is cyclists who may be most vulnerable.  According to the department of transport in 2009, the most recent year for which figures are available, no pedestrians were killed in Great Britain by cyclists but 426 cyclists died in collisions with motor vehicles out of a total of 2,222 road fatalities.  The Barclays Bike Hire Scheme and the general promotion of cycling may mean that cycling accidents will be on the increase.  Mr Koltula’s case is of interest not least because of the Defendant’s acceptance that a duty of care was owed by street work operatives to cyclists riding on the pavement, but also because of the Judge’s acceptance that use of the pavement was justified in the circumstances of this case.”

In the case of Thomas –v- Warwickshire CC, Mr Thomas, an experienced cyclist, fell from his bicycle in April 2006.  He had been cycling with approximately 20 cyclists in ranks of 2 travelling at a speed of 25/25 miles per hour.  He said that he was riding close to the cyclist in front.  The gap was only 5 – 6 inches.  He maintained that he had struck a spillage of concrete stuck to the road which was between 20 and 30 millimetres high.  He said that this caused him to lose control of his bicycle and fall off, hitting the road with his head and losing consciousness.

The case was brought on the basis that the highway authority was liable for failing to maintain the highway under the Highways Act 1980 Section 41.  Mr Thomas argued that the concrete, having hardened, had become part of the surface or fabric of the road and so the road had fallen into disrepair.  He also argued that the concrete made the highway dangerous because it was foreseeable that a cyclist would be unable, when striking it, to control his bicycle and avoid falling off.  A routine inspection by the local authority highways inspector in December 2005 had not recorded any defect.  The inspector’s evidence was that the concrete lump would not have been removed before the accident because it was not within ordinary car wheel tracks, ie where cars would have been driving.

The judge found that given the measurements of the concrete, its height and appearance, it was a real source of danger because it was reasonably foreseeable that a cyclist coming into contact with it would lose control of his bicycle, fall off and be injured.  The fact that the highways inspector had indicated that, had it been within the normal wheel track path of a car it would have been sufficiently dangerous to report, helped the Judge to find in favour of Mr Thomas.  The Judge took the view that the inspector was in error in not considering cyclists.  However, the Judge also held that if Mr Thomas had been travelling a safe distance from the cyclist in front he would have been able to see the concrete in sufficient time to avoid it and so he was found to be contributorily negligent.  He lost 60% of his damages as a result.

It is important to be aware that the Highways Act, although it imposes a duty to maintain the highway, does not extend to warning road users that they are approaching a dangerous stretch of the road (Gorringe v Calderdale BC 2004 ).  Neither does the duty extend to improving the visibility of an intersection.  Further, the duty under Section 41 does not extend to temporary hazards such as loose grip deposits (Valentine v Transport for London 2010) nor to steps made dangerous due to a build up of mud (Ali v City of Bradford 2010) although there has been a case where debris blocking a culvert which caused substantial flooding was held to be a failure to maintain a road (Mott McDonald Ltd v Department of Transport 2006).
In any claim brought under Section 41 of the Highways Act the highway authority can seek to rely on section 58 of the Act which provides a defence that it had done what was “reasonably required to secure that the part of the highway to which the action related was not dangerous for traffic”.
In the case of Wilkinson v York CC 2011 a cyclist fell off her bike when her front wheel hit a pot hole.  The Judge found that the particular road justified a quarterly inspection – whereas in fact the local authority had decided to inspect it only once a year.  In that case reference was made to the national code of practice for the inspection of highways. Although this code is not binding, it helped the court to find the objective standard to be applied.  In that case the highway authority was not able to rely on a Section 58 defence (it sought to argue that it had to limit its inspections for budgetary reasons).

Finally in Phethean-Hubble v Coles 2011 the claimant, a 16 year old boy, was riding his bicycle along a footpath.  He rode off the pavement into the road at an angle and into the path of the defendant’s car.  He went over the bonnet, hitting the windscreen with his head and suffered severe head injuries.  The defendant was driving the car for the first time having passed his driving test only a few days before the accident.  He accepted that he had been driving up to 5 miles per hour above the speed limit but denied he was at fault.  The Judge found that the driver should have been driving 3 – 4 miles per hour under the speed limit. He was found to be primarily responsible for the accident because of his excessive speed.  The Judge also found that the claimant, by leaving the pavement at an angle in the way that he did, was 50% to blame for the accident.  The claimant was not wearing a cycle helmet and the Judge held that the appropriate starting point was to accept that a cyclist who failed to wear a helmet ran the risk of contributing to his injuries.

Although the Judge had assessed that the cyclist’s contribution to the cause of the collision was 50% he in fact only reduced his overall compensation by one third, on the basis that at 16 years old he did not have the maturity and judgement of an adult and the consequences of a momentary lapse had had catastrophic consequences for him.

It is important to note from this case and other case law that a motorist exceeding the speed limit is not necessarily going to be found to be driving without reasonable care – equally a motorist keeping to the speed limit or even driving under the speed limit will not necessarily escape liability.  There are no hard and fast rules because deciding what is a safe speed will depend on all the circumstances.

Contributory negligence is often argued in cycling accidents but the burden of proof is on the defendant to prove fault which has caused or contributed to the claimant’s injuries; cycle helmets are only likely to prevent injury within a limited range of cases, for example where a low impact collision occurs. Ultimately it is for the court to decide to what extent it would be just to reduce the claimant’s damages.  Drivers of cars are often seen as far more blameworthy than cyclists because of their potential to do so much more harm.

Cycling accidents can raise difficult legal issues which do not usually arise in other road traffic accidents. If you have been injured in a cycling accident it is a good idea to have a specialist on your side.

For further information please contact Sarah Young or Janet Watson of Ridley and Hall, Queens House, 35 Market Street, Huddersfield HD1 2HL on 01484 538421.