Know your rights as a cyclist – case law update November 2017
Our specialist cycling advocate Mark Hambleton takes you through recent cases involving cyclists, motorists and potholes.
If you aren’t sure of your rights as a cyclist, and when you might be contributorily negligent should you have an accident, Mark gives examples here of what happened in a variety of situations where cyclists came off their bikes and made a claim.
Road defects, including potholes
Road defects can be extremely dangerous for cyclists, especially around moving vehicles. In the following cases, claimants have been knocked off their bikes as a result of poor road maintenance. However, making a claim doesn’t always mean success as you will see:
Griffiths v Gwynedd County Council
This case centred around a cycling accident in the Snowdonia National Park on 30 May 2009. Mr Griffiths was spending a day on his bicycle and he was cycling along a remote, high mountain road, which Gwynedd County Council was responsible for.
On the day of the accident there was some debris in the road. that Mr Griffiths cycled to his left to avoid it. In doing so he went into a defect on the left edge of the road where the tarmac had fallen away, jolting Mr Griffiths and catapulting him from his bike.
Wrexham County Court initially went against Mr Griffiths, so he appealed to the Court of Appeal. He argued that the defect in the road was a danger and the County Council had breached their duty to maintain the highway so that it did not present a danger to him in using the road in the normal way.
Unfortunately for Mr Griffiths, his appeal was unsuccessful and he was not awarded any compensation for his injuries. The Judge found that the road was inspected twice a year by the County Council, and rarely used by cyclists during the week and only sporadically at weekends.
The Court of Appeal concluded that it was not reasonable to expect a cyclist would ride into the defect at all and that the defect was not one which the Council should reasonably be expected to have guarded Mr Griffiths against. Essentially, the County Council had not breached their duty to maintain the highway.
Curtis v Hertfordshire County Council
This case also concerned the potential liability of a County Council (the Highway Authority) and its potential failure to maintain the highway as required by Section 41 of the Highways Act 1980.
In this case, Mr Curtis was cycling with two friends in Rickmansworth on 4 October 2009, when he suddenly lost control of his bicycle. The road they were cycling along is described as a suburban residential road.
Due to the injuries he sustained in the accident, Mr Curtis had no memory of what had caused him to swerve and lose control of his bicycle. Mr Curtis’s friend, who was cycling behind him, described that Mr Curtis suddenly swerved and lost control of his bicycle. After the accident, the friend inspected the road at the point where the accident happened and found a long, linear, 40mm deep defect in the tarmac.
Crucially, during the trial, the highway inspector for the County Council stated that, had he seen the defect during his inspection, it was of such significance that it would have been repaired very quickly – within 7 days. . The inspector had inspected this piece of road 6 months before the accident. His failure to notice and report the issue for repair was therefore a breach of duty.
Mr Curtis was cycling with his friends at between 18 mph/20 mph. The Judge therefore found that he was not travelling at an excessive speed given that the road had a 30mph speed limit.
After hearing all the arguments, the Judge held that the road’s condition exposed to danger those using it in the normal way, such as Mr Curtis and his friends. Because of the inspector’s testimony, and his inspection record, the local authority did not have a defence that it had taken reasonable care. Therefore Mr Curtis’s claim succeeded in full because the defendant County Council had failed to maintain this piece of road adequately.
Thomas v Warwickshire County Council
On 16 April 2006 Mr Thomas was cycling in a group from the Solihull Cycling Club (near Stratford on Avon) when his bicycle struck a small spillage of concrete that had stuck to the highway. The concrete had hardened to the road surface at an estimated height of 20mm – 30mm. Mr Thomas and his friends were cycling at between 20 mph/25 mph. Unfortunately, Mr Thomas came off his bike upon hitting the concrete spill and suffered a significant head injury.
The highways inspector had recorded no defect on the road when it was inspected in December 2005. Crucially, the inspector said that the concrete was not within the ordinary (motor vehicle) wheel tracks and therefore the concrete was not removed. The inspector therefore did not take into account the risk that it posed to cyclists.
The Judge found that the concrete was a real source of danger and that it was reasonably foreseeable that a cyclist coming into contact with it would lose control of his bike, fall off and suffer injury.
Primary liability was therefore established in favour of Mr Thomas. However, it was found that he was cycling close behind the cyclist in front of him (5 / 6 inches), which meant his damages were reduced by 60% to reflect his contributory negligence. The Judge found that if he was riding further back from the cyclist in front he would have been able to see and avoid the lump of concrete.
You might not be aware, but when you have an accident and make a claim, a judge will assess what steps you could have taken to avoid either the incident itself or the injury you received. This ‘contributory negligence’ can mean that the defendant’s liability is reduced, as you will see below:
Phetan-Hubble v Coles
The accident happened in Bristol on 28 November 2005 and judgment was given by the Court of Appeal on 21 March 2012. The case arose from a collision between a cyclist aged 16 at the time of the accident and a motorist aged 17. The motorist had only passed his test on 16 November 2005. As a consequence of the collision, the cyclist suffered significant head injuries.
The accident happened at around 8pm on a long, straight road with a single carriageway in both directions, and a speed limit of 30 miles per hour. There is a footpath alongside this road and the cyclist and motorist were travelling in the same direction. It was dark but it was a well-lit, so the Judge found that there was reasonably good visibility and the motorist should have seen the cyclist, even though the cyclist was not displaying illuminated lights.
Just before the collision, the cyclist rode his bicycle off the nearside curb at an angle, into the path of the car. It was found that the car was travelling at 35 miles per hour and had he been driving at a safer speed in the region of 26 – 27 miles per hour, the claimant’s injuries would have been less severe. At first instance, the Judge found that the cyclist’s contribution towards the accident was 50% but that it should be reduced to 33% to reflect his age. On appeal, the finding was that the cyclist’s contributory negligence should be 50% so that he would receive 50% of his damages on a full liability basis as there was no reason to treat him differently to an adult.
McGeer v Macintosh
Shortly after 3pm on 19 May 2011 there was a collision between an HGV and a cyclist in Ellesmere Port, Cheshire. The first judgment was given on 9 November 2015 and the Court of Appeal’s Judgment was given on 23 February 2017.
The defendant HGV driver and claimant cyclist were travelling in the same direction when the HGV stopped at a set of traffic lights, straddling two lanes of traffic indicating his intention to turn left. Approaching the vehicle from behind, however, it could be perceived that his intention was to turn right given his position in the road.
When the traffic lights turned green, the defendant moved his HGV slightly to the right before turning left. This was at the same time that the claimant cycled along the nearside of his vehicle and across its front, leading to the collision between the two.
It was alleged that the defendant was not in the correct lane to turn left and that he had failed to check his nearside mirror properly, indeed the judge found that the claimant was there to be seen. The defendant said that he checked his mirror before moving off but the judge found that had the HGV driver done this, and had he done so again before initiating his turn, he would have seen the claimant on her bicycle on both occasions.
So the defendant was negligent for failing to check his nearside mirror properly, but it was also found to be unsafe for him to assume his indicator would be visible to a cyclist approaching from behind; a car positioned behind the HGV blocked the claimant’s view of the indicator.
However, the defendant didn’t bear responsibility for every action here, as the Judge also held that the claimant cyclist could have acted more carefully and should not have undertaken the defendant HGV. The Judge made reference to the causative potency (the potential of the vehicle to cause harm to another road user) – of the vehicles, though, noting that the HGV was a potentially dangerous machine and the potential for injuring a cyclist was significant. Taking everything into account then, the HGV driver’s liability was assessed at 70% and the cyclist’s contributory negligence was assessed at 30%.
Rickson v Bhakar
Shortly before 7.30am on Sunday 26 August 2012 the claimant cyclist in this case was injured during a time trial event on the A27 dual carriageway. Judgment was given on 20 February 2017.
The claimant’s bicycle was fitted with tribars, a personal computer and he was wearing an aerodynamic helmet. The claimant was seriously injured, and unfortunately paralysed, when he was knocked off his bicycle by the defendant’s van.
The defendant had been travelling in the opposite direction to the claimant cyclist along the dual carriageway, and went to make a right turn through a designated gap in the barrier onto a side road. This meant that he would travel across the claimant’s side of the dual carriageway. However, it was found that the van was turned across the claimant’s side of the dual carriageway when it was unsafe to do so. The defendant admitted negligence, so the hearing was held to decide whether the cyclist had contributed to the accident at all (or, been contributorily negligent).
The judge found that the collision had happened between the centre of the nearside lane (lane 1) and the centre line between lanes 1 and 2. The claimant struck the defendant’s van near the rear wheel meaning that the defendant’s van had almost moved across the entire dual carriageway before the collision had happened.
The Judge found that the claimant had a clear view of the road ahead and had swerved at the last minute to avoid the defendant’s van. The opportunity was afforded to a reasonable cyclist, keeping a proper lookout, to avoid the collision and had the claimant braked earlier he would have avoided it entirely. It was therefore decided he was 20% contributorily negligent.
Other accidents involving motorists
The following are other interesting cases and judgements that have occurred recently, which may give further insight for cyclists as to what they might need to think about when making a claim:
Elson v Stilgoe
The accident happened on a B road in Warwickshire at about 8am on 11 January 2011. The first judgment was given on 12 May 2015 at Walsall County Court and the appeal hearing at the Court of Appeal took place on 13 March 2017.
In this case, the claimant cyclist was overtaking a stationary line of traffic on his nearside. Cycling with a friend, he came upon a section of carriageway that was flooded.
To avoid the flooding, the claimant cycled into the carriageway of oncoming traffic and was involved in a collision with a vehicle driving in the opposite direction. The claimant and his friend said they were cycling in single file; however the defendant driver disputed this. He argued that they were cycling side by side and that the claimant was in fact on the outside i.e. nearest the defendant’s carriageway. The judge found that they were side by side and then had to decide whether the defendant should or could have modified his driving to avoid a collision with the claimant’s bicycle.
The defendant said that the claimant veered into his carriageway at the last minute. The judge found that the claimant could have stopped and waited for the defendant to pass, before entering the defendant’s carriageway to avoid the flooding. The Judge found that the defendant was driving appropriately, so the claimant’s case was dismissed.
The Judge added that in the dull conditions at the time of the accident, where the road did not have any street lights, if they had found in the claimant’s favour there would have been a deduction from the claimant’s damages to take account of his own contributory negligence (in the region of 35% – 40%). This would have taken into account his failure to wear cycle clothing, cycle gear and to display an illuminated light.
Streeter v (1) Hughes (2) MIB
The claimant cyclist was aged 14 when he was injured on 1 September 2004. Judgment was given on 20 September 2013.
It is a very sad case because the claimant suffered a very serious spinal injury and had no memory of the accident. The accident happened just after 6pm near Slough on a single carriageway road which the cyclist travelled onto from an adjacent pavement. The claimant emerged (on the defendant’s left hand side) from behind a white van, meaning the defendant’s view was obscured and he had no reasonable opportunity to avoid the collision.
The judge found that the defendant was not speeding but it was discovered that the defendant was uninsured and presented a false certificate of insurance. For that reason the claim was brought against the defendant and the Motor Insurers’ Bureau.
The claim failed because the defendant had no reasonable opportunity to avoid the collision.
Sinclair v Joyner
The accident happened on 3 July 2011, just after 6pm, on a rural road outside Royal Tunbridge Wells. The High Court Judgment was given on 23 June 2015.
The claimant, who was aged 58 at the date of the accident, was an experienced cyclist familiar with the country roads in Kent.
The collision happened near a bend in the road and the road was 5 metres wide at the point of the collision. Unfortunately the claimant suffered significant head injuries and was unable to give evidence as to the circumstances of the accident.
The Judge in this case made it clear that it was not the court’s job to expect perfection from a motorist, but in fact to assess the motorist’s duty to take reasonable care in the circumstances at the time. The Judge found the defendant was driving her Volvo XC 90 at a reasonable speed on a road she knew well, but she had failed to properly assess the risk that the claimant posed.
When the claimant would have been visible to the defendant, she was positioned towards the middle of the road and standing up on her pedals. The defendant said she did not believe the claimant was a particular hazard so thought slowing down was sufficient precaution. The defendant’s front seat passenger also added that the claimant was visibly grimacing or looking uncomfortable but the defendant said she did not notice this.
The Judge found that the defendant had failed to properly assess the hazard the claimant posed on her bicycle as she drove round the bend and saw the claimant. The Judge found that the defendant failed to stop when it was necessary to do so and that they had time to slow down so as to allow the claimant to pass safely by.
The Judge also found that the claimant was negligent for riding so close to the centre of the road and that her position in the road materially contributed to the accident. The claimant’s blameworthiness was therefore deemed to be 25% while the defendant’s blameworthiness was 75%. In reaching this decision, the Judge placed weight on the issue of causative potency; the potential to cause harm driving their car was far greater than that of the claimant riding her bicycle.
The claimant was also not wearing a helmet at the time. However, it was not found that she was negligent in choosing not to wear a helmet and there was no evidence that the absence of a helmet had contributed to making her injuries worse than they would otherwise have been.