Sorting out liability in cycling accident casesApr 03, 2019
Liability in cycle accident cases
In many traffic accidents there is a clear person who has been responsible for causing the accident. In that case the victim of the accident will generally recover 100% of their losses. The Law however recognises that in some accidents both parties are to blame. The Court has the ability to divide legal responsibility for the accident between the various parties to the accident. Therefore, a Court may find that motorist A is 75% to blame but motorist B is 25% to blame. In that case, motorist A would recover 75% of their losses and motorist B would recover 25% of their losses.
When an accident involves two cars, usually liability is apportioned on the basis of blameworthiness. However, where one of the parties is a cyclist, then different considerations apply. This is because the Law recognises that if a car and a cyclist are involved in a collision, the car is likely to do much greater damage to the cyclist then the cyclist is to the car driver. It would be a unusual case where a cyclist caused a motorist personal injury. (Unless the motorist collided with another object or vehicle.)
Therefore, the Law has developed the theory of “causative potency”; what this means is that often the motorist will suffer a greater share of the responsibility for causing the accident than the cyclist even though each party may have been equally blameworthy.
A good example of this principle was considered by the Court of Appeal last year:
Colette McGear was cycling along the Whitby Road in Elsmere Port. Ahead of her was an articulated HGV driven by Robert McIntosh. Mr McIntosh needed to turn left into Cromwell Road.
Because of the size of his vehicle and the awkwardness of the junction, he positioned his HGV so that he was straddling two lanes of traffic. At the traffic light control junction there was a nearside lane for going straight on and turning left into Cromwell Road and a right-hand filter lane; He straddled both lanes, although he was indicating his intention to turn left.
His case was that he had done nothing wrong. He said he checked his nearside mirrors before moving off. Unfortunately Colette McGear cycled up the near side of the HGV not realising that he was intending to turn left. A collision occurred in which she suffered very severe injuries.
The Court confirmed that the HGV driver had been in breach of his duty of care to the cyclist. The cyclist was approximately 40 metres behind the HGV’s rear-view mirrors when the HGV pulled away. She would have been visible at a distance at 65 metres. Therefore she would have been visible for over 21 metres before he set off. Doing the calculations, the Judge decided that she was there to be seen for approximately 3 seconds before he moved off. Therefore, either the HGV driver did not check his nearside mirrors or he did not check them reasonably carefully enough, otherwise he would have seen her.
As to the HGV’s position on the road, the Judge found that because he had adopted an unusual position on the road, there was an additional duty on him to check the nearside mirrors as he carried out the manoeuvre. Not only before the manoeuvre but also the fact that he failed to check the mirrors during the manoeuvre meant that the position on the road was also negligent. The Court therefore confirmed that the HGV driver was negligent.
Contributory negligence on the part of the cyclist?
The Judge found that the major responsibility lay with the HGV driver. The causative potency of the HGV was highly significant in assessing apportionment given the likelihood of very serious injury to a cyclist. The HGV was potentially a dangerous machine which had the Defendant exercised reasonable care would not have to turn across the path of the Claimant. In the circumstances, the Claimant cyclist was found to be 30% contributory liable. The cyclist was blameworthy because she should have noticed that the HGV was indicating his intention to turn left and should have appreciated its unusual position meant that it may well be turning left. She therefore carried out a hazardous manoeuvre by overtaking on the nearside.
Are you a cyclist who has been injured as a result of an accident? Please contact our specialist personal injuries lawyers. They can provide some friendly no obligation advice on the merits of a claim.