Author Topic: The case law thread  (Read 19208 times)

The case law thread
« on: October 13, 2010, 10:37:44 am »
Recent article from a colleague, which I'm sure many of you here would appreciate. Hopefully you'll never need to rely on the cases.

We both work with two wheeled vehicle accident victims, and while he would rather squeeze into some leathers, and I some lyrca, the case law mentioned forms the basis or starting point for most filtering accidents and very relevant to cyclists.

I plan to link this to cyclists with some other, cycle specific case law and misleading signal cases in the next 24 hours.

Accidents involving filtering: What the law says - Access Legal from Shoosmiths

clarion

  • Tyke
Re: Filtering/lane splitting case law
« Reply #1 on: October 13, 2010, 10:48:03 am »
Thanks for that.  Interesting cases.
Getting there...

Re: The case law thread
« Reply #2 on: October 13, 2010, 11:59:33 am »

Hi all,

I've changed the title of the thread and now link in Misleading signal cases

Misleading signals at road junctions: What the law says - Access Legal from Shoosmiths

Hopefully I'm not seen as spamming. I often read here of cases and accidents being discussed, so maybe this thread can now act as some sort of catalogue of relevant cases.

I'll try and update as and when relevant cases come to light, in the meantime, please do share any others you know of.

clarion

  • Tyke
Re: The case law thread
« Reply #3 on: October 13, 2010, 12:01:30 pm »
I know you have a commercial interest, but I don't regard it as spamming.  It's useful to have a summary of the case law.
Getting there...

Jaded

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Re: The case law thread
« Reply #4 on: October 13, 2010, 12:06:16 pm »
It is useful to have the variety of different scenarios and outcomes.

Just a small technical note, the body font of the pages comes out quite small on a Mac running Safari.
If you don't like your democracy, vote against it.

Re: The case law thread
« Reply #5 on: October 13, 2010, 12:10:01 pm »

Thanks,

I'll feed back to our web guys.

Re: The case law thread
« Reply #6 on: October 13, 2010, 12:22:14 pm »
Very interesting indeed, and fascinating that the "U-Turn Man" (Davis v Schrogin) actually got taken to appeal, but I suppose that was the insurance companies battling it out.

Julian

  • samoture
Re: The case law thread
« Reply #7 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?

Re: The case law thread
« Reply #8 on: October 13, 2010, 01:39:20 pm »


More case law - bit more cycle specific and quirky, some decisions debatable

Whos at fault following a cycling incident? - Access Legal from Shoosmiths

fuzzy (retd.) AAGE

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Re: The case law thread
« Reply #9 on: October 16, 2010, 01:42:46 pm »
Wot Julian said.

Some useful info there ALG. Thanks.
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Re: The case law thread
« Reply #10 on: October 18, 2010, 10:12:46 am »
Another vote for it being a sticky.
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tiermat

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Re: The case law thread
« Reply #11 on: October 18, 2010, 10:19:19 am »
A very useful thread, and one I hope I never need to use....

Another vote for making it sticky....
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Re: The case law thread
« Reply #12 on: October 18, 2010, 04:15:21 pm »

Recent case from The Court of Appeal this year

Smith v Hammond [2010] EWCA Civ 725

Smith, a 13 year old was employed by his local Co-op as a paper boy. His round included houses on both sides of the road and therefore he had to cross the road from time to time. After leaving the driveway of one house his intention was to cross the road to deliver his next paper. Hammond had seen Smith at the side of the road looking in the opposite direction. It was accepted that Hammond was not over the 30mph speed limit, but was virtually doing 30mph. Without looking Smith cycled out across the road and into the path of a DAF flat bed lorry driven by Hammond. Hammond braked as hard as he could and swerved but was unable to avoid the collsion. Smith was severly injured and Hammond suffered PTSD as a result.

Smith brought a claim against the Co-op, for failing to take proper care to prevent him from injury and against Hammond for negligent driving. Hammond counter claimed for his injury.

Expert evidence was provided to the court opining that, due to reaction times, it would not have helped prevent the accident if Hammond had used his horn to warn Smith.

At first instance the Judge found that his own experience was that a person reacted instantaneously to the sound of a horn. The trial judge found Hammond 40% to blame (for not sounding his horn) - Hammonds counterclaim was dismissed in full as the judge was unable to accept that a person of smiths age would foresee physical injury to  the driver of the lorry in those circumstances. Smith was 605 responsible.

Hammond appealed

On appeal, the first instance decision was changed.

The appeal court held that Hammond was not negligent in failing to sound his horn at the same time as he was engaged in efforts to avoid the collision. The court also advised that the first instance judge was within his right to not accept the expert evidence but in doing so he should give reasons why and not merely say that it did not accord with his own experiance.

It was found that smith, although 13, was careless of his own safety and that of Hammond. Hammond was not to blame for the accident and his counterclaim had to succeed.

The Co-op agreed to pay Hammonds damages.


On the face of it the appeal decision is good law, but the whole case does leave a number of questions, for which I do not have the answers and some are political rather than legal. For instance;

Is driving a DAF flatbed lorry at 30 in a 30 negligent in itself?

Many argue for a mandatory 20mph speed limit in residential areas - if a 20mph limt was in place and Hammond was at 20, would he have had that little extra time to a) sound his horn, B) stop, or C) collide with Smith at a much reduced speed resulting in less severe injuries?

Should any lorry even be in residential areas?




Re: The case law thread
« Reply #13 on: October 18, 2010, 04:32:57 pm »
Hmmm...

I'm struck by the complete misunderstanding of how a horn should be used by both courts in that scenario;

What a driver in that situation should do (arguably) is to sound his/her horn to draw the attention of the pedestrian when they observe that the pedestrian hasn't looked in their direction, but before the pedestrian steps out.

It's true that once the pedestrian steps out then it's too late for the horn to do any good, but too many people don't consider its use at an earlier stage.  :facepalm:

Sadly, there are plenty of through-routes with houses on them, so preventing trucks from entering residential areas is a non-starter (and how do you define a residential area in law, anyway). Plus, it'd be a bit tough on residents who need to have things delivered, or move house...  ;)

The argument over lower limits for trucks in 3o zones has some merit, I'd have thought. Larger trucks are already restricted to 40mph on NSL single carriageways, and allowing them to do 30 on residential roads doesn't look very consistent with that.
Life is too important to be taken seriously.

Re: The case law thread
« Reply #14 on: October 18, 2010, 04:47:04 pm »

The decision was overturned on the basis that Hammond could not reasonably have been expected to sound his horn until Smith began to move out into the road and by then it would have been too late anyway. Despite his age Smith had to be responsible for his own safety.

Through routes, rat runs, whatever one calls them, with our infrastructure they are not the place for heavy goods vehicles. If they are the place, then speed needs to be reduced and maybe...without being too controversial, liability should rest with them following an accident because of there potential damage.

Sounding a horn every time somebody might do something unwise, could lead to a cacophony of noise in residential areas. Worse still, competition between drivers as to who hsa the best horn!

sadly, these things are unlikely to ever be looked at politically because they will be deemed to be an attack on the motorist.

clarion

  • Tyke
Re: The case law thread
« Reply #15 on: October 18, 2010, 04:49:55 pm »
20's Plenty.
Getting there...

Re: The case law thread
« Reply #16 on: October 18, 2010, 05:12:40 pm »
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?


Re: The case law thread
« Reply #17 on: October 25, 2010, 11:24:43 am »

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.




Re: The case law thread
« Reply #18 on: July 15, 2011, 01:07:02 pm »

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

Re: The case law thread
« Reply #19 on: July 16, 2011, 12:33:01 am »
This is a brilliant idea.  Could one of the mods make it a sticky, either here or in the Bill & the Bailey?

Bump and ditto.
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Tourist Tony

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Re: The case law thread
« Reply #20 on: July 18, 2011, 11:21:10 am »
That was an interesting ruling. I have had long arguments with the lunatics who consider the road to be the excluSSive domain of motor vehicles, and one of my main points has been the unpredictability of children. I was taken to task because I declared that when a child runs into the road it is not the fault of the child, but of the adult who should have been supervising it.  That is why all of the supernatural speed-judging ability (yadda yadda) of the motorist is no use in such circumstances. Slow down.

Re: The case law thread
« Reply #21 on: July 18, 2011, 08:44:56 pm »
Is driving a DAF flatbed lorry at 30 in a 30 negligent in itself?

Many argue for a mandatory 20mph speed limit in residential areas - if a 20mph limt was in place and Hammond was at 20, would he have had that little extra time to a) sound his horn, B) stop, or C) collide with Smith at a much reduced speed resulting in less severe injuries?

Should any lorry even be in residential areas?

I think that to the first point, it's worth considering that 30mph zones can take on a variety of different characteristics and environments, as can any speed limit zone. Even as a cyclist keen to see the issue of driving speeds tackled I can think of some 30's that wouldn't be unjustified in changing to 40's and so on. This is where other factors come into play, such as urbanisation, commercial, throughfare etc come into play. Therefore driving a large, heavy commercial vehicle of any kind at 30 in a 30 is only negligent when conditions dictate that it would be unreasonably unsafe to do so. Further to that, instead of just thinking about determining zones by speed limit, it may be worth considering them by other means.

To the second, a) and b) hold the same relevance as they did in the case (although I accept that deceleration profiles change with speed) as the change in circumstances that would allow for an accident to happen would still hold the same event timings. c) is the most important consideration and pandering to driver's and commercial desires needs to be abandoned in this interest.

Reducing commercial traffic is naturally desirable from many perspectives, not just safety, especially heavy industrial traffic. However, the upthread comment about access is key. Without a mechanism in place to license access any such prohibition is key. Worth differentiating between through routes and rat runs though. Through routes are natural routes for traffic to take, for journeys starting and ending either end, by means of any or a combination of distance, journey speed or navigable expediency. For instance in rural areas A, B and unlisted roads will often pass through small villages where the nature is largely residential due to the absence of significant commercial activity. Prohibiting HGVs and similar would be needlessly punitive against commercial interests and the knock on affect on other roads and on costs would probably outweigh any benefit derived. Rat runs on the other hand are usually only use of residential alternatives during periods of busy traffic to speed up journey times. As a cyclist, I am an unapologetic rat runner and suspect I am not alone.

Re: The case law thread
« Reply #22 on: July 21, 2011, 11:30:25 am »
Thanks for this most recent update, AccessLegal.

Some thoughts from my perspective:

- even without a rear light, a cyclist who launched themselves from the pavement pretty much under the wheels of a passing car was only held to be 50% liable for the collision.

- regrettably, the precedent of seat belts is again accepted to apply to helmets even though the evidence of their protective effect when hit by a car is almost nil. On the other hand, again we see that because the injuries are serious, the court does not accept that a helmet would have made any difference - making the initial position strangely academic (in other words, if your head injuries are sufficiently serious that you need to sue someone, it will be accepted that a helmet makes no difference, and if you're not injured, the question won't arise).

Re: The case law thread
« Reply #23 on: July 21, 2011, 01:35:30 pm »
At the risk of being caught out of the correct forum, would it be reasonable to translate that judgement into "If you have an accident where a helmet is likely to have protected you, and you don't, that will be counted as contributory. If the likelihood is that the helmet would have done nothing, then it will be discounted"

Can see that causing hours of argument in court, but it sounds fair-ish to me.

Re: The case law thread
« Reply #24 on: July 21, 2011, 02:13:42 pm »
Can see that causing hours of argument in court, but it sounds fair-ish to me.

I see a few people now just on my short commute who wear knee and/or elbow pads - NOT young BMX dudes either, office commuter types.

I look forward to being told that the driver who rammed me isn't responsible for my broken arms and legs because I don't... ::-)