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The case law thread

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clarion:
20's Plenty.

EdinburghFixed:
One of the things which suprised me was the frivolousness of some claims, for example the one where somebody crashed into a stationary lorry... if it's not moving, *surely* it's obvious that you must be at fault for hitting it (since we've all heard about the responsibility to only travel as fast as you can see the road ahead to be clear).

On the other hand, there are some odd ones in there too.

Take the case of the rider who was struck by a driver reversing onto the road, and found to be liable because they had the greater chance to avoid the collision; it is duly noted that "a similar case with different distances between the vehicles may well result in a different percentage split of liability", but how was the layout determined in the first place? I.e. what evidence could have been presented that the vehicle was reversed out of the drive slowly enough to give the cyclist (at whatever distance) the greater opportunity to evade? I find it unlikely that anyone rammed themselves face-first into a solid object to make a point, although I guess it might have been captured on CCTV?

The disheartening ones are particularly cases in which riders proceeding in a cycle lane are hit by motorists performing conflicting traffic movements. It's baffling that this country seems to have created a situation where you might be prosecuted for failing to use a cycle facility (Daniel Cadden, although his appeal is noted) yet if you do so and someone negligently enters the lane without checking it is clear, you are held to be at least equally responsible. To appreciate the unlikeliness of this in reverse, suppose a cyclist used a gap in traffic to turn right and was hit by a bus going up the bus lane - would the driver really be found 50% liable?

Access Legal Guy:

Ok, so following the budget cuts last week the Department for Transport now has to make £13bn of cuts. In addition, many local Authorities are being asked to make savings of up to 28 per cent. 

I presume therefore that potholes are further down the priority list than they previously were!

sub zero temperatures this week means they are only going to get worse.


The Highways Act 1980 provides that the highway authority has a duty to maintain highways maintainable at the public expense.  In order to bring a successful compensation claim against the highway authority you must be able to prove that the highway was not reasonably safe i.e. that it was in a dangerous condition and that the highway authority’s failure to repair the highway caused the resulting damage.

Claims against the highway authority can be difficult, as it will often try and avoid liability by relying on S.58 of the Highways Act 1980, whereby it is a defence if the highway authority can prove it has taken such care as in all the circumstances was reasonable to ensure that the part of the highway in question was not dangerous for traffic.

However, they are not always successful when relying on this defence, as shown by the case of Jacobs v Hampshire County Council (1984), in which a cyclist was injured when the front wheel of his bicycle went into a pothole.

The highway authority tried to rely on S.58 on the basis that it inspected the road at six monthly intervals. The court rejected its argument on the basis that it had failed to properly take into account the design of the road when deciding how frequently it should be inspected. The cyclist’s claim was therefore successful.

There are a number of points that all cyclists should bear in mind this winter:

• In order to increase your chances of a successful claim you should always try to take photographs of the pothole in question, and take measurements where possible. If you’re unable to take exact measurements, try using an easily recognisable object to indicate the size of the pothole. It will also assist your claim if you can confirm how long that particular pothole has been in existence. It’s always worth approaching local residents to see if they can help in this respect.

• If you know about a particular pothole and it later causes you to have an accident, your claim for damages may be reduced. In the case of Dingley v Bromley LBC (2000), the claimant’s compensation was reduced because she’d been aware of the pothole that caused her accident. Where a claimant is aware of the general poor state of a road, even if they’re unaware of a particular defect, they may also see a reduction in compensation, as in Brown v Edinburgh City Council (1998).

• Speed is another issue that cyclists should consider. In the case of Rider v Rider (1973), a driver lost control of his car because the road was broken and uneven. Whilst the court agreed that the condition of the road was a foreseeable danger, and the highway authority’s repairs inadequate, the driver was one third to blame because he was driving too fast.

Access Legal Guy:

Another case of interest from the turn of the year

Earlier this year the High Court heard a case involving a cyclist that should be of interest to all cyclists for a number of reasons.- The case of Phethean-Hubble v Coles

This case is of interest because of a number of the points raised in the judgement of HHJ Wilcox, which brings together in one case some previous case decisions but also adds to previous cases in respect of contributory negligence for cyclists.

On 28th November 2005 at approximately 8pm, Tobias Phethean-Hubble, then aged 16, was cycling on a pavement that ran parallel to a road. He was also not using any lights. At some point on his journey he left the pavement and ‘bunny hoped’ at an angle into the road where he collided with a motor vehicle driven by the Defendant, Mr Coles, that was travelling in the same direction. As a result, Tobias suffered severe brain injuries. he was not wearing a helmet although he did own one.

The issues of illegal pavement cycling and not using any lights when it would have been dark are all considered in the judgment and are not considered to be a factor in the collision. In fact it was established that Tobias was a keen and responsible cyclist, who even went as far as having professional services of his bike at a local Halfords store.

Tobias sued contending that Coles was wholly to blame for the accident. Coles countered raising issues of contributory negligence in respect of  the cycling for liability and the non wearing of a helmet for causation.

The main liability argument centred around the speed of the defendant vehicle, which after some considerable debate and input from expert witnesses was deemed to have been 35mph in a 30mph zone.  The court believed that under the circumstances Cole should have been driving 10mph slower than he was.

After hearing the evidence it was held that ‘’primary liability for the accident was that of the Defendant by virtue of the excessive speed’. However, Tobias had ‘’created an emergency situation’’ by bunny hopping into the road. ‘’The degree of his contribution to the cause of this collision is 50%’’.

In respect of the contributory negligence in not wearing a helmet HHJ Wilcox referred to the case of Smith v Finch  and accepted that that approach was the appropriate starting point. Ie. That despite there being no legal obligation to wear a helmet, a cyclist not doing so ‘’has only himself to thank for the consequences ’’ and that subject to issues of causation ‘’any injury sustained may be the cyclists own fault’’.

For us cyclists this reinforcing of the Smith v Finch stance is a worry and it’s a shame that the same was not challenged. I am sure that at some point in the future when a cyclist does fall foul of this stance the CDF will be willing to seriously look at funding an appeal.

As with the Smith v  Finch decision, the expert evidence in this case confirmed that even with a helmet Tobias would still have suffered the injuries that he did. The Defendants allegation of contributory negligence in respect of causation therefore failed.

What is encouraging to see is that at various points throughout the judgement reference is made to the vulnerability of cyclists and the damage that a motor vehicle can cause, highlighting the standard of care motorists owe to cyclists.

Interestingly, when it came to the issue of damages, the court applied a stance that is mirrored in previous child cyclist case law. Although he was 16 at the time of the accident, and by all accounts a experienced and competent cyclist, the court still had to consider what was just and equitable.

Although Tobias was considered to be 50% at fault due to him creating an emergency situation the court also held that ‘’although normally a prudent careful cyclist, he did not have the maturity and judgement of an adult’’. It was therefore ‘’just and equitable to reduce the damages recoverable...….by one-third, the liability of the Defendant being two thirds’’

This extra protection afforded to child cyclists (even those who enter the road from the pavement) is something that should be applauded.

So, an interesting example of how the court comes to a decision.. The judgement itself is well worth a read, even for one that is not legally trained. It contains reference to various studies that many would find of interest.



Cycling case raises number of issues - good and bad. - Cycling blog

Paul:

--- Quote from: Julian on October 13, 2010, 01:37:10 PM ---This is a brilliant idea.  Could one of the mods make it a sticky, either here or in the Bill & the Bailey?

--- End quote ---

Bump and ditto.

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