This fairly long page gives you a run through of the issues surrounding cyclists and liability. Here are some links to each section:
Cyclists and Liability
If you are acting for a cyclist, take care to research the case law on
liability relating to this particular class of road user since some
of the decisions of late have been surprising. Should your client’s
case concern the issue of contributory negligence arising from his or
her failure to wear a cycle helmet, you are unlikely to find a more
comprehensive romp through the legal history on this point, than in
Julian Fulbrook’s article Cycle Helmets and Contributory
Negligence in Issue 3/04 of the Journal of Personal Injuries Litigation (JPIL).
If you are new to cycling claims or don’t come across them very
often, then the following will give can be used as a quick reference
guide to some of the key issues in RTA and Highway Liability cases
which are the two most common areas.
The Highway
Code (180) identifies cyclists amongst the most vulnerable of
road users making specific provision for motorists to take particular
care when using the public highway, in consideration of cyclists (187
& 188)
Road Traffic Accidents
The key contributory negligence arguments to be run against a Claimant
cyclist will be that he or she was;
- Cycling ‘too fast’ (is your client really likely to be
travelling over the speed limit?)
- Cycling with his or her ‘head down’. This is an allegation that
will be raised if your client is wearing any form of lycra clothing
and riding a bicycle with dropped handlebars. It’s highly
unlikely to be the case that your client was concentrating on the
tarmac rather than the road ahead.
- Failing to wear adequately ‘visible’ clothing or failing to
display lights on the bike. There is a new Rule in the Code
requiring (46) that cyclists must have front and rear
lights lit. Clothing is dealt with at (45) where it is
recommended ‘light coloured or fluorescent
clothing..reflective clothing in the dark.
- Undertaking/overtaking a queue of traffic.
A cyclist who is travelling in a cycle lane will usually assume that he
or she has ‘right of way’. Despite the provisions of the
Code, the Court has been less than enthusiastic about acknowledging
the particular vulnerability of the cyclist and the special
consideration that should be given to cycle lanes.
The Code highlights the duty on the motorist, to include traffic when
turning, must give way to cycle lane traffic from either direction
(159).
In Clenshaw V Tanner (2002) a cyclist in a designated cycle lane
who collided with the rear of a breakdown recovery vehicle that was
turning left across his path, was held to be 50 per cent contributory
negligent.
Thankfully the fact that there is likely to be two wheeled traffic travelling
along the nearside of a queue of traffic either in a cycle lane or
otherwise and that a motorist should take extra care has recently
been recognised in Fagan V (1) Jeffers (2) MIB (2005) where
the Court found that a motorist had to proceed with utmost care and
not cross the carriageway until he had put himself in a position
where he was satisfied that no traffic was likely to come up on the
inside of the opposing carriageway.
In Richards V Quinten (2000) the Court found that a cyclist
riding in a cycle lane had the greater opportunity to take evasive
action to avoid a collision with a car emerging from a driveway and
although the car driver should have been proceeding with extreme
caution, the cyclist was held to be 75 per cent contributory
negligent.
It is not uncommon for cyclists to cycle into stationary objects ahead
of them – in Foster V
(1) Maguire (2) Irwell Construction Ltd (2001) a cyclist was
found 70 per cent to blame for her injuries where, notwithstanding
that it was reasonably foreseeable that she would be exposed to
injury by a van and trailer which was blocking a cycle lane, she had
failed to keep a proper lookout for her own safety. In Howells V
Trefigin Oil & Trefigin Quarries Ltd (1997) the claimant rode
his bicycle into the defendant's stationary lorry, which was
projecting slightly into the road and on appeal, was found 100%
responsible.
If your client has been out for a country ride Lamoon V Fry (2004)
might be of help to you. The accident occurred at a bend on a
country lane prior to which, Claimant cyclist had been travelling on
wrong side of road. Notwithstanding the finding that Defendant had
been properly keeping to his side of the road albeit too fast, the
Court found a motorist on such a road nevertheless had to be aware of
other users who could be put at risk by a motorist driving too fast
for the conditions and the Defendant was found 40% responsible.
Highway Accidents
Highway liability claims are always a bit of nightmare, not least because
only rare local authorities seem to take into account the likely use
of a highway by cyclists when drawing up and more importantly
implementing, their maintenance policy.
The Highway Authority is under a statutory duty to maintain and repair
the highway (Highways Act 1980 S.41 (1) and 329 (1)) and that duty is
to keep the road as dedicated to the public in such a state as to be
safe and fit for ordinary traffic.
To prove there has been a breach of the duty, a Claimant must show that
the highway was not reasonably safe and prove, on the balance of
probabilities:
- The exact place of the accident/defect that caused his injury
- That the cause of the accident represented a danger
The starting point is whether injury might reasonably have been foreseen.
Denning L.J. in Morton v Wheeler said
"if
a reasonable man, taking such contingencies into account and giving
close attention to the state of affairs would say: ‘I think
there is quite a chance that someone going along the road may be
injured if this stays as it is’, then it is a danger; but if
the possibility of injury is so remote that he would dismiss it out
of hand saying: ‘Of course it is possible but not in the least
probable’ then it is not a danger"”.
This is a pre Highways Act decision but is a useful indication of the
judicial approach to the consideration of whether or not the site of
the accident is a danger. The question is an objective question of
fact in every case and expert evidence can only be of assistance.
It is not just the height or size of the defect that is relevant but the
full nature of it in the context of the road and road user that must
be considered. In the case of Michael Byrne v Welsh Office,
a cyclist suffered tetraplegia as a result of cycling into a drainage
gulley. It is clear from the facts in that case that the drainage
gully would most likely not have presented a car driver with a risk
of foreseeable injury. Indeed, the gulley was described as ‘a
less than readily obvious hazard’. However Collins J
commented:
"In my judgement no one giving 'close attention to the state of
affairs'...who was having regard to the use of the road by
cyclists could reasonably come to the conclusion that by virtue of
its existence injury was 'not in the least probable'. Injury was, in my judgement, readily and easily foreseeable".
There is no rule of thumb to enable you to be certain when advising on the
question of whether the accident site was a defect. At the end of
the day, the Courts have consistently said that the question of
whether a particular highway is unsafe is one for the trial judge to
decide and will rarely, be a matter for appeal.
The Statutory Defence
It is unusual, to receive a prompt admission of liability in a highway
liability claim. More often, a standard form letter is sent received
from you opponent politely explaining s 58 of the Highways Act 1980.
The Defence to the claim will be something along the lines of ‘we
do not accept there was a defect. Even if there was we are not
responsible, because we inspected the road at some point before the
accident and we were going to inspect it at some point after the
accident. Further, in between the inspection beforehand and your
client’s accident, nobody told us about the pothole’.
Section 58 provides:
- ..it is a defence (without prejudice to any other defence or the
application of the law relating to contributory negligence) to prove
that the authority had taken such care as in all the circumstances
was reasonably required to secure that part of the highway to which
the action relates was not dangerous for traffic
When looking at a S58 Defence the Court will take into account a number of
things to include the character of the highway and the traffic
reasonably to be expected to use it, the standard of maintenance
appropriate for that type of road and traffic, the state of repair in
which a reasonable person would have expected to find the highway,
whether the Authority knew, or could reasonably have been expected to
know, that the condition of the highway was likely to cause danger to
the public, and where the Authority could not reasonably have been
expected to repair the highway before the accident occurred, what
warning notices of its condition had been displayed.
Proving the defence is a matter for the Court based on the circumstances of
the particular case. The evidence that the Authority can produce of
its inspection, repair and maintenance routine of highways for which
it is responsible and the accident locus in particular, will largely
determine this.
Remember if your client’s claim arises from their bike skidding off the
carriageway due to ice formation that Goodes v East Sussex County Council (2000) LGR 465 had
until recently, put paid to your chances of raising a successful
claim. However, the S41 Highways Act 1980 has been amended by S111 Railway and Transport Safety Act 2003 which came into force on 1st November 2003 and places a duty upon a
highway authority to ensure so far as is reasonably practicable, that
safe passage along a high-way is not endangered by snow and ice.
Pre-action Protocol and Disclosure
In fairness, some Local
Authorities are able to produce comprehensive computer records
suitably coded with clear explanations of those codes used during
inspection. These local authorities are generally equipped in being
able to supply necessary documentation within the Protocol time
scales required.
However, many
Authorities appear either unable or unwilling, to produce the
relevant documentation or it is made available in an incomprehensible
form, frequently consisting of poorly copied pages of records and
notes in manuscript.
It is crucial to
concentrate on the quality of the information that is provided and to
be able to understand exactly, what story it tells. Regard should be
had to the Code of Practice for Maintenance Management,
which was most recently updated in July 2001. The recommendations
contained in the Code are not mandatory on Authorities but the extent
to which an Authority has had regard to those recommendations when
setting its policy in relation to highway maintenance will be a
relevant consideration in the context of a claim against that
Authority.
There is a wealth of
detail in relation to issues crucial to consideration of potential
liability. By way of very limited example, recommendations are made
in respect of such areas as;
- The scope of
highway maintenance, and what is expected to constitute reactive,
routine, programmed and regulatory maintenance.
- Carriageway
footway and cycleway hierarchy, which categorise certain types of
highways.
- Categories of
Inspection which deal with the key maintenance objectives for safety
and service inspections and structural condition surveys, and the
parameters which are needed for those inspections.
- Frequency of
inspection, items for inspection, degree of deficiency and nature of
response.
You cannot fully
consider the documentation secured relating to pre-accident history
of maintenance, inspection and repair of a highway, without being
clear as to how the highway has been classified by the authority and
in turn, aware of detail of the policy that they have adopted in
respect of maintenance.
Consideration of
the adopted policy and the implementation of it, might be considered
with some caution as sounded by Steyn L.J. in Mills v Barnsley
Metropolitan Borough Council in
mind.
“It is important that our tort law should
not impose unreasonably high standards, otherwise scarce resources
would be diverted from situations where maintenance and repair of the
highways is more urgently needed. This branch of the law of tort
ought to represent a sensible balance or compromise between private
and public interest”
It may be right to say
that most local authorities may have in place a laudable policy, but
given restriction on funds available and the rising maintenance
backlog, many are not complying with their own guidelines. If they
were, the claims would not be increasing at the rate that they are.
If your proposed
Defendant will not hand over the documents that you need to see or
you have long lost patience waiting for them to be produced, issue an
application under CPR 31.16. The documentation being sought is not
privileged, there is no question that the same is being sought by a
Claimant in these circumstances as a fishing expedition, and the
requirements of CPR 31.16 can be easily made out.
In so far as the issue
of costs is concerned, it is important to set up the pre application
correspondence correctly to ensure that the Court is persuaded to
make a full order for costs against the local authority and that the
general rule as provided for in CPR 48.1 (2) is not applied.
Make sure:
- The letter of
claim sets out clearly the documentation that is being required from
the Authority on denial of liability
- If liability is
not admitted at the expiration of the Protocol period or full
documentation is not forthcoming, send a warning letter clearly
stating that an application for pre-action disclosure will be made
within a specified time and that costs will be sought contrary to
CPR 48.1 (2) on the grounds that there has not been compliance with
the pre-action protocol (CPR 48.1 (3) (b)).
Contributory Negligence in Highway Claims
It will probably be
argued that the Claimant was simply not looking where she or he was
going or ought to have known that the pothole in the road was there.
In Dingley
V Bromley LBC (2000) the Claimant’s
claim was discounted on the basis as she had been aware of the
particular pothole, which caused her accident. Knowledge of the
general poor state of a particular area of the highway although not
the particular defect, will have a similar effect. In Brown V
Edinburgh City Council the Court
found the Claimant 20% contributory negligent.
When it is argued
that your client simply ‘lost control’ of his or her bike
for no good reason, remember Rogers V (1) Cambridge Water PLC
(2) Groupbridge Ltd (2003) The
Court found in response to the Defendants’ allegations that the
Claimant lost control when she braked to avoid a cable in the road,
that it was unlikely that an experienced cyclist could easily fall
off her bicycle without something there to cause a problem.
Sue Bence is a Partner at Leigh Day & Co
and members Solicitor to the British Cycling Federation and the
British Triathlon Association
Case References
BRIAN DAVID CLENSHAW v ROBERT JOHN TANNER (2002)
[2002] EWHC 184 (QB)
QBD (Silber J, Hart J) 24/1/2002
FAGAN v (1) JEFFERS (2) MOTOR INSURERS BUREAU (2005)
CA (Civ Div) (Thorpe LJ, Scott Baker LJ, Wilson J) 9/3/2005
CHRISTOPHER LESLIE RICHARDS v STEPHEN PETER QUINTON (2000)
CA (Mantell LJ, Sir Ronald Waterhouse) 31/10/2000
TRACY FOSTER v (1) JOHN MAGUIRE (2) IRWELL CONSTRUCTION LTD (2001)
[2001] EWCA Civ 273
CA (Civ Div) (Aldous LJ, Robert Walker LJ, Sir Anthony Evans) 9/2/2001
MATTHEW PETER LAMOON v JOHN CLIFFORD FRY (2004)
[2004] EWCA Civ 591
CA (Civ Div) (Peter Gibson LJ, Rix LJ, Longmore LJ) 29/4/2004
MORTON V WHEELER (1956 CITED IN DYMOND V PEARCE [1972] 1QB 496
MICHAEL BYRNE v THE WELSH OFFICE (1995)
QBD (Collins J ) 29/9/95
GOODES v EAST SUSSEX COUNTY COUNCIL (2000)
LGR 465.
JOAN MARGARET MILLS v BARNSLEY METROPOLITAN BOROUGH COUNCIL (1992)
CA (Dillon LJ, Steyn LJ) 7/2/92
SUSAN ROGERS v (1) CAMBRIDGE WATER PLC (2) GROUPBRIDGE LIMITED (2003)
Cambridge County Court (HHJ Sennitt) 12/8/2003