Stop! Look both ways

Cycling has become popular both as a means of transport and also as a recreational activity. It is sadly inevitable that cyclists will suffer injuries from accidents caused by defects in roads and also from collisions with other vehicles. Injuries sustained by cyclists are often fatal or towards the severe end of the spectrum because of the velocity with which the cyclist comes off a bicycle or because of the impact of much larger vehicles.

On a Saturday in May 2009 Mr Melvyn Griffiths was cycling on a remote mountain road in Wales. The road had originally been a gravel track but it had been surfaced with a thin layer of tarmac. The road was part of the highway maintainable by the local authority under the Highways Act 1980. Mr Griffiths was cycling downhill at a moderate speed when he came across some debris in the middle of the road. He swerved to the left to avoid the debris and his bicycle came into contact with a defect at the edge of the road where the tarmac had given way, revealing the gravel beneath. He came off his bicycle and sustained injuries. He brought an action for damages against the local authority.

At trial, the judge found that the defect, which was like many defects on the edge of mountain roads, was not such as to give rise to a cause of action for a breach of the statutory duty to maintain the highway pursuant to section 41 of the Act. The trial judge applied the appropriate test from Mills v Barnsley MBC [1992] 1 PIQR 291,in that he asked: ‘Was it dangerous in the sense that in the ordinary course of human affairs danger may reasonably be anticipated from its continued use by the public?’

On appeal (Griffiths v Gwynedd County Council [2015] EWCA Civ 1440) the Court of Appeal, dismissing the appeal, agreed that the test from Mills was the correct one. In applying the test to a specific defect, the location and nature of the defect had to be taken into account. ‘What may well be dangerous in a much frequented thoroughfare may not be so in a little frequented carriageway where the highway is reasonably passable without danger. A defect in the road in the Highlands, occasionally used by cyclists, may not be dangerous when it would be so if the road was in central London and was habitually used for cycle races involving large numbers of competitors,’ observed Lord Justice Christopher Clarke. The court was entitled to take into account the reasonable expectation of the public as to the standard of maintenance applicable to a highway of that character.

Most highway authorities have policies setting out the standard of repair to be expected and the dimensions and characteristics of defects which qualify for repair. It is often argued that the highway authority has failed to meet the terms of its own policy and that liability should attach as a consequence, or conversely that it has met the terms of its policy and so liability should not attach. It is important to recognise, however, that cases are not to be tried by the terms of a highway authority’s policy.

In Esdale v Dover District Council [2010] EWCA Civ 409, Lady Justice Smith said: ‘The test of whether, in all the circumstances, the council has taken such steps as are reasonable to see that visitors are reasonably safe does not depend upon what standards of safety the council sets itself as a matter of policy. The test to be applied is an objective one. The question, in effect, is: does the judge, as the embodiment of the reasonable person, think that the council has taken such steps as are reasonable, in all the circumstances, to keep the visitor – the claimant here – reasonably safe?

‘What the council sets as a policy is certainly not determinative, although I would not go so far as to say that it is irrelevant. One can immediately see that the council’s policy could not be determinative. If the council had a policy that footpaths need not be repaired unless there was a defect of more than two inches, no one would suggest that, if that policy were followed, it could be said that the council had taken such care as was reasonable. Conversely, if the council wished to set a very rigorous policy in an attempt to provide a high standard for its visitors, it would not follow that the standard of what is reasonable must be set at the same level.’

Solicitors faced with claims from cyclists who have been injured due to defects on the highway should consider:

• The nature of the defect in question: its dimensions, positions, and how it posed a hazard to cyclists;

• The nature and character of the road where the defect was present;

• The standard reasonably to be expected of a road in that location;

• The highway authority’s policy for maintenance of the highway; and finally

• Whether the highway authority could rely upon the statutory defence provided by section 58 of the Highways Act 1980, namely that it had taken such care as was reasonable to secure that the part of the highway to which the action relates was not dangerous.

Apportionment of liability

In cases involving a collision between a cyclist and a much larger vehicle, the cyclist is likely to come away from the collision with severe or fatal injuries. In many cases the accident has been caused in part by the negligence of the motorist but in part too by the negligence of the cyclist. The apportionment of liability in such cases has considerable importance, especially where the injuries are severe and have caused disability.

The causative potency of the negligent driving of a large vehicle is an important factor to take into account in the apportionment of liability. In McGeer v McIntosh [2017] EWCA Civ 79, a lorry came to a halt at a traffic light-controlled junction in Ellesmere Port. The driver of the lorry intended to turn left and the lorry was straddling two lanes with the left-turn indicator on. The claimant, a cyclist, came from behind the lorry and cycled along the nearside of the HGV and across the front. The driver failed to observe the cyclist as she travelled to the rear of the lorry and along the nearside. When the lorry pulled forward, the driver did not check his nearside mirror again before starting the left turn. As the lorry turned, it collided with the claimant and she suffered severe injuries.

The trial judge found the exercise of reasonable care demanded that the lorry driver check his mirrors again before moving off and before turning left. If he had done so he would have seen the claimant. On the other hand, the claimant, who had not been able to see the left-turn indicator of the lorry due to it being obscured, ought not to have assumed it was going straight ahead. Balancing the causative potency and the blameworthiness of the parties’ actions, the trial judge reduced the damages by 30 per cent for contributory negligence. The Court of Appeal would not interfere with that apportionment of liability because it was clearly not outside the generous ambit of decision making of a first-instance judge.

In Rickson v Bhakar [2017] EWHC 264 (QB), a cyclist collided with a van during a time trial on a dual carriageway, causing the cyclist to sustain catastrophic injuries. The van had turned across the path of the cyclist through a legitimate gap in the central reservation. The driver of the van simply had not seen the claimant cyclist in the bright early morning sun. If the cyclist had braked or moderately decelerated, he would have avoided the collision.

The trial judge found that the cyclist would have had a few seconds in which to observe the van and his failure to observe or react was culpable. In assessing the degree of contributory negligence, the judge recognised that the cyclist did not cause the hazard; he had merely failed to observe and react to it. Contributory negligence was assessed at 20 per cent.

Any apportionment of liability in a collision case is entirely fact sensitive and previous cases can only illustrate the approach of the court. Nevertheless, it is clear that it is not just the respective blameworthiness of the parties which determines the apportionment of liability but also the causative potency of their respective negligence. Apart from fact-specific arguments relating to a failure to wear a helmet and bright clothing and to display lights in darkness, it will be rare for cyclists to have to bear a greater portion of liability in cases involving collisions with large vehicles.

Roger Cooper is a barrister at Parklane Plowden

@ParklanePlowden www.parklaneplowden.co.uk

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