Cyclist's crash damages reduced because of 'contributory negligence': looking down at heart rate monitor

High Court judge says rider should have been looking where he was going

by John Stevenson   February 20, 2014  

Heart rate monitor (CC licensed image by frankshapiro:Flickr)

Keep your eyes on the road. That’s the message from the High Court in Northern Ireland, which has reduced the damages awarded to a cyclist involved in a collision with a car because the judge found that looking at his heart rate monitor amounted to contributory negligence.

The court awarded Conor McAllister over £50,000 in damages after finding that driver John Campbell was responsible for the injuries Mr McAllister sustained when he hit Mr Campbell’s car in November 2009.

But the damages would have been £70,000 if Mr McAllister had been looking where he was going.

According to a report in the News Letter, the car and rider were on the dual carriageway outside Ballymena when the incident happened. Mr McAllister was heading out toward Broughshane at the beginning of a ride.

Mr Campbell said he had pulled over to give his sister-in-law a lift. He said he had been stationary for 30 seconds when Mr McAllister rode straight into the back of his car.

But Mr Justice Stephens found more credible Mr McAllister’s claim that Mr Campbell had just pulled in in front of him.

He held that the length of scrape marks on the car was inconsistent with it having been stopped and the handbrake applied.

There were inconsistencies in Mr Campbell’s story, the judge said, but he did not believe the driver had acted with malicious intent.

“Without any ulterior motive he has rationalised after the event how it occurred,” Mr Justice Stephens said.

“The defendant was flustered by seeing his sister-in-law and there was a period of indecision.”

In his confusion the driver had either forgotten about the rider he had passed, or else disregarded his presence.

“This failure was negligent,” the judge said.

But Mr McAllister had contributed to the crash by looking down at his heart rate monitor, the judge found, reducing the damages by 25 percent from £70,000 to £52,500.

Mr Justice Stephens said: “He was looking down at a heart rate monitor. He should have been looking at where he was going.

“If he had been he could have braked or taken evasive action.”

45 user comments

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So cyclists should always see cars, but it's fine for delivery drivers, minibus drivers, and charitable ladies not to notice bikes? Jeez, where are the vigilantes?

posted by oldstrath [146 posts]
20th February 2014 - 13:17

23 Likes

noizebox wrote:
Does this raise an issue for the use of any sort of cycle computer?

Well yes it does. I think the finding is about right. You do need to look where you are going. The other road user may actually be negligent and at fault (this is the finding here hence the compensation) but if you aren't paying attention then you are at least partially to blame.

Let's put that in another context. Let's say a cyclist waiting to turn right into a main road from a junction saw a car approching and pulled out in front of the because they thought the driver of the oncoming car would have enough time to slow down a bit. But the driver was playing with their radio or sat nav and not looking up at the road and didn't slow or stop.

In this case the cyclist is at fault for the collision but the driver contributed by not paying attention or looking where they were going.

Cycling is like a church - many attend, but few understand.

posted by oozaveared [622 posts]
20th February 2014 - 13:23

18 Likes

Goldfever4 wrote:
Or you're training and you want to stay in a set HR zone?

Because it is quite sensible to go out training on a dual carriageway with 70mph traffic flying past you? Thinking

Gkam84's picture

posted by Gkam84 [8855 posts]
20th February 2014 - 13:29

21 Likes

mtm_01 wrote:
Scoob_84 wrote:
Out of interest, what level of personal injury did the rider sustain from this incident to warrant the rather large payout?

A similar incident happened to me yesterday on my morning commute through London. A driver pulled into the cycle/bus lane which I was occupying without indicating or checking the mirrors to see if I was there and took me out. My front wheel and fork now need replacing and I've sustained some soft tissue injury to my wrist and shoulder (backed up by a letter from a doctor).

I've reported the incident to the police on 101, but have yet to fill out the more comprehensive Road Traffic collision form.

You should've called the police on the spot - in theory if there's a road traffic accident and someone has been hunt they are obliged to attend the scene.

Well i guess in the post crash daze i didn't think to do this. Although i went down pretty hard, it wasn't a serious incident where i was trapped under a car or had broken bones sticking out of me.

When the adrenaline kicks in, its quite hard to know what your supposed to do, especially when it hasn't happened before.

posted by Scoob_84 [201 posts]
20th February 2014 - 13:30

18 Likes

farrell wrote:
I don't suppose anybody can find out a bit more about the process through the courts for this incident?

The accident happened in 2009 and the cyclist then sued the driver, it appears to me that the courts awarded him 70k for damages and now for some reason it has ended up back in court to get the damages reduced.

Has the driver appealed in some way or something? Or is this standard procedure?

The £70k is the actual award for damages and the way that is calculated is pretty standard and to do with loss and damages. Quite simply if your loss is a bike worth £5k but you break an arm and have 5 weeks off work and earn £1000 a week then that's 10k ie calculations like that but far more complex and with all sorts of whistles and bells. That's the damages judgement. Most times both solicitors know exactly what the judgement will be.

BTW claims companies just load up the costs for all kinds of stuff and just keep adding their own costs as well and their costs become part of your costs that you claim. ie their solicitor charging £350 ph just to keep making the same old calls over and over.

I digress. In this case the loss and damages and all expenses settled out at £70k.. The claimant was awarded this by the court (ie the court agreed that the real overall loss was £70k) but they deducted 25% because of his own contributory negligence.

It's a pretty standard judgement.

Cycling is like a church - many attend, but few understand.

posted by oozaveared [622 posts]
20th February 2014 - 13:36

21 Likes

mtm_01 wrote:
Scoob_84 wrote:
Out of interest, what level of personal injury did the rider sustain from this incident to warrant the rather large payout?

A similar incident happened to me yesterday on my morning commute through London. A driver pulled into the cycle/bus lane which I was occupying without indicating or checking the mirrors to see if I was there and took me out. My front wheel and fork now need replacing and I've sustained some soft tissue injury to my wrist and shoulder (backed up by a letter from a doctor).

I've reported the incident to the police on 101, but have yet to fill out the more comprehensive Road Traffic collision form.

You should've called the police on the spot - in theory if there's a road traffic accident and someone has been hunt they are obliged to attend the scene.

Correct, ALWAYS call the police when you've been hurt or your bike is damaged. When attending an RTA, the Police are required to breathalise those drivers/riders involved...

Also, getting the police involved means it will be logged as an incident in the database and will show up on the online injury maps if any injury occured:

http://map.itoworld.com/

posted by Paul_C [183 posts]
20th February 2014 - 13:38

14 Likes

Gkam84 wrote:
Fairs fair, we expect drivers to concentrate on the road 100% so they do not cause us any harm.

The same should be expected from cyclists.

There are only two reasons you need to check your HRM.

1, You are a Team Sky member and you are getting ready to attack
2, You are an old dude with a heart problem...

Leave it to Strava to show all your details Rolling On The Floor


[[[[[ Or a young dude with a heart problem....let's not be ageist here!
P.R.

PhilRuss

posted by PhilRuss [282 posts]
20th February 2014 - 13:43

15 Likes

I'm guessing that, as the majority of adults who ride bikes also drive, most of those reading this will be well aware that when driving you keep an eye on your speed by taking occasional glances at the speedo (and by knowing when you spped up and slow down) and that you ensure that you know what is happening all around you by using mirrors and looking around.

When cycling we don't need to glance at the speedo but still need to know what is happening all around us and we look around to do so.

If a driver were busy looking for a station on his radio, adjusting a satnav or indeed checking his heart rate then that would quite rightly be a contributory factor were a collision to occur at that time (whover was mainly at fault). The same of course applies to cyclists.

With regards the driver telling lies, or misrepresenting the facts, or misinterpreting, or rationalising what actually happened I'm afraid that is pretty normal behaviour in any court. You don't find someone who denied an assault in court being found guilty and then also being charged with perjury do you? In this instance the judge seems to have done a pretty good job.

For once the judicial system tries to treat a cyclist and a motorist in the same way and people start to complain - makes me wonder.... Thinking

Shay

posted by shay cycles [225 posts]
20th February 2014 - 13:44

18 Likes

What evidence for looking at hrm? Driver's words? Witnesses?

http://uk.virginmoneygiving.com/ValentinKokorin

London2Paris24: 450km, 24 hours, 5th-6th July 2014

I will miss TdF in Yorskhire!!! Please donate! Big Grin

koko56's picture

posted by koko56 [322 posts]
20th February 2014 - 13:49

14 Likes

Gkam84 wrote:
Goldfever4 wrote:
Or you're training and you want to stay in a set HR zone?

Because it is quite sensible to go out training on a dual carriageway with 70mph traffic flying past you? Thinking

Hey, I didn't say anything about what this guy was up to and nor did I condone where he was cycling, I'm saying it is generally a reasonable reason to look at an HRM...

Asolare

posted by Goldfever4 [168 posts]
20th February 2014 - 13:50

12 Likes

koko56 wrote:
What evidence for looking at hrm? Driver's words? Witnesses?

Probably riders own admission in their evidence. Possibly just an off-the-cuff comment that has been used against them.

Unlikely the driver's evidence, it's doubtful he even saw the cyclist and any other witness would only see a small change in head position which could be the result of anything, including swallowing a fly and choking.

Did Nightrider 2013 and 2014 for Parkinson's UK. Might just have one last go in 2015.

jova54's picture

posted by jova54 [618 posts]
20th February 2014 - 13:54

12 Likes

Goldfever4 wrote:
What about if the cyclist was checking over his shoulder to pull out of a car that had abruptly stopped in front of him, does that constitute 'not looking where he is going' or more importantly contributory negligence?

How about if he was a car driver looking at his speedometer, does that constitute contributory negligence?


[[[[[ Call me old-school, but I don't festoon me 'bars with electronic heart-rate info. Eyeballs out? On the rivet? Thumping chest? Lactic legs? I get the message! Well, I'm not racing....but when driving, we do have to glance at the speedo once in a while. Not guilty, squire.
P.R.

PhilRuss

posted by PhilRuss [282 posts]
20th February 2014 - 14:01

20 Likes

Always pays to have membership of some sort of cycling organisation (BC, Tri England, CTC) as you'll get legal support if you believe you have a case against a driver.
PMR, sorry you felt you could not take legal action.
I'd even have been tempted to represent myself.

posted by ficklewhippet [41 posts]
20th February 2014 - 14:02

13 Likes

It depends on how long he was looking down and how quickly the driver pulled in. If the incident evolved over a short amount of time, which it likely did, then reducing the compensation is outrageous as it's very unlikely the cyclist could have done much to react regardless of where he was looking.

There are many reasons to not be looking forward 100% of time as, you should be routinely looking
- over your shoulder
- at side roads for drivers pulling out
- and pot holes

Just remember who the victim was in the situation.
Contributory negligence is a joke...

posted by sfichele [100 posts]
20th February 2014 - 14:26

22 Likes

On the one hand, in theory, I wouldn't argue with the notion that cyclists need to take suitable care themselves and keep their eyes on the road ahead as much as is practical. Not least because there's a moral obligation to be watching out for pedestrians stepping into their path.

The trouble is, this is always set against the awareness of the lenient treatment drivers seem to get in similar circumstances.

Its very hard to work out what is 'fair' in a screwed-up context. Which is another reason, as far as I'm concerned, why the Dutch approach is the only answer - there's always likely to be a double-standard and hence suspicion in these situations, so the best thing is to keep the opportunity for such collisions to a minimum.

Also - as to whether the driver told the truth or not, and whether he should be prosecuted for that....this was a civil court, right? So presumably its only on the "balance-of-probabilities" that its implied he told porkies rather than something that is "beyond reasonable doubt"?

posted by FluffyKittenofT... [679 posts]
20th February 2014 - 14:45

16 Likes

Paul_C wrote:
mtm_01 wrote:
Scoob_84 wrote:
Out of interest, what level of personal injury did the rider sustain from this incident to warrant the rather large payout?

A similar incident happened to me yesterday on my morning commute through London. A driver pulled into the cycle/bus lane which I was occupying without indicating or checking the mirrors to see if I was there and took me out. My front wheel and fork now need replacing and I've sustained some soft tissue injury to my wrist and shoulder (backed up by a letter from a doctor).

I've reported the incident to the police on 101, but have yet to fill out the more comprehensive Road Traffic collision form.

You should've called the police on the spot - in theory if there's a road traffic accident and someone has been hunt they are obliged to attend the scene.

Correct, ALWAYS call the police when you've been hurt or your bike is damaged. When attending an RTA, the Police are required to breathalise those drivers/riders involved...

Also, getting the police involved means it will be logged as an incident in the database and will show up on the online injury maps if any injury occured:

http://map.itoworld.com/

Ok, again good advice but a little late now. Does this now mean I'm too late to make a claim on the driver? I can still report this formally to the police right? You lot got me worried now... Sad

posted by Scoob_84 [201 posts]
20th February 2014 - 14:45

11 Likes

jova54 wrote:
koko56 wrote:
What evidence for looking at hrm? Driver's words? Witnesses?

Probably riders own admission in their evidence. Possibly just an off-the-cuff comment that has been used against them.

Unlikely the driver's evidence, it's doubtful he even saw the cyclist and any other witness would only see a small change in head position which could be the result of anything, including swallowing a fly and choking.

almost certainly the cyclist's own admission and probably in answer to the very simple question as to why he hit a stationary vehicle.

Something like this.
Officer - So, did you notice the vehicle go past you?
Cyclist - yes.
Officer - the driver says he passed you a way back. Is that right?
Cyclist - yes
Officer - So when you saw the stationary vehicle why didn't you stop or go around it?
Cyclist - I was looking at my HRM?

I

Cycling is like a church - many attend, but few understand.

posted by oozaveared [622 posts]
20th February 2014 - 15:25

17 Likes

More bullshit.

posted by northstar [1105 posts]
20th February 2014 - 16:16

10 Likes

Scoob_84 wrote:
mtm_01 wrote:
Scoob_84 wrote:
Out of interest, what level of personal injury did the rider sustain from this incident to warrant the rather large payout?

A similar incident happened to me yesterday on my morning commute through London. A driver pulled into the cycle/bus lane which I was occupying without indicating or checking the mirrors to see if I was there and took me out. My front wheel and fork now need replacing and I've sustained some soft tissue injury to my wrist and shoulder (backed up by a letter from a doctor).

I've reported the incident to the police on 101, but have yet to fill out the more comprehensive Road Traffic collision form.

You should've called the police on the spot - in theory if there's a road traffic accident and someone has been hunt they are obliged to attend the scene.

Well i guess in the post crash daze i didn't think to do this. Although i went down pretty hard, it wasn't a serious incident where i was trapped under a car or had broken bones sticking out of me.

When the adrenaline kicks in, its quite hard to know what your supposed to do, especially when it hasn't happened before.

Don't worry, I did exactly the same when I got knocked off and only found out that fact afterwards. Like you I was bruised but not broken, the driver had stopped and was forthcoming with details so figured I didn't need to get anyone else involved.
Took 18 months but I did get a decent payout for it.

http://matmitchellcycling.wordpress.com
The usual new 4th Cat blog with some stuff about Pros too.

mtm_01's picture

posted by mtm_01 [90 posts]
20th February 2014 - 16:50

12 Likes

It could have been worse, at least the judge didn't mention helmet and hi-vis

FATBEGGARONABIKE's picture

posted by FATBEGGARONABIKE [590 posts]
20th February 2014 - 16:52

17 Likes

Gkam84 wrote:
Goldfever4 wrote:
Or you're training and you want to stay in a set HR zone?

Because it is quite sensible to go out training on a dual carriageway with 70mph traffic flying past you? Thinking

If it's the dual I'm thinking of it runs out of the town and is in a built up area and is a 50. It has a turning for the motorway but this involves a proper 90 degree turn off so no chance of motorists pushing up their speed. It then narrows to a single carriageway.

And yes the cyclists should have been watching out.

giff77's picture

posted by giff77 [1053 posts]
20th February 2014 - 19:38

15 Likes

Gkam84 wrote:
Goldfever4 wrote:
Or you're training and you want to stay in a set HR zone?

Because it is quite sensible to go out training on a dual carriageway with 70mph traffic flying past you? Thinking

If someone can pull over and stop quickly enough that a cyclist (that they must have just passed) travelling at 30+kph didn't have time to stop, would an HGV? Cyclist cannot avoid A-roads. No excusing poor driving.



Suffering from Low Cadence.

bikeboy76's picture

posted by bikeboy76 [1290 posts]
20th February 2014 - 20:20

14 Likes

Went to court to watch the CPS try and get a Care-less driving charge against a driver who took out my GF with a right hook as she filtered down the outside. He blantidly lied in court but the witness's didn't want to attend so he got dismissed with insufficient evidence even though he admitted guilt at the scene to the officer.

I wonder if cyclists are more inclined to be truthful?

Still trying with his insurance company through lawyers.

posted by Nzlucas [89 posts]
21st February 2014 - 0:37

10 Likes

I regularly ride on dual carriageways, although the traffic speed MAY be greater, there tend not to be T-junctions (unsafe in low-light conditions) & if you are not on them at the busiest times, plenty of room for other traffic to give you more than the 0.5 metres of room that many drivers allow you on a single carriageway road.
You should still be looking at what you are doing.
As the board says at the HQ of any Time Trial "Head down racing (riding) is Dangerous. Heads up & have a good ride".

Currently going slower than I'd like...

posted by stealth [188 posts]
21st February 2014 - 6:14

11 Likes

The only really scary bit about dual carriageways are the shallow left hand turnoffs, where I get people diving left across my front wheel. Many swearwords. Some new ones. Get more high speed close passes on suburban and urban roads though.

posted by Argos74 [294 posts]
21st February 2014 - 9:14

10 Likes

Argos74 wrote:
The only really scary bit about dual carriageways are the shallow left hand turnoffs, where I get people diving left across my front wheel. Many swearwords. Some new ones. Get more high speed close passes on suburban and urban roads though.

^this

But I'd add "rural" to the list.

Really, though?

posted by workhard [383 posts]
21st February 2014 - 12:42

10 Likes

rich22222 wrote:
So would the same be said if a motorist glanced at the rev counter?

Yes. Yes it would, by both us and the courts.

This is precisely the sort of complaint about cyclists that is legitimate - expecting to be treated like victims at every point. You have a duty to look where you're going and deeming a failure to perform that duty contributory negligence is entirely fair.

posted by nuclear coffee [160 posts]
21st February 2014 - 13:06

10 Likes

So he glanced at his heart rate monitor. Ive set upper and lower levels on mine so it keeps me in the threshold. Now how about the driver was he not glancing at a person on the pavement if he had been paying attention to the road and it's surroundings he could of probably prevented this from happening hummm !!!! So the judge took the award from the cyclist how about putting it back as the driver was looking at his sis in law?

Live to Ride, 'cycling a real sport'

posted by shaun finnis [24 posts]
22nd February 2014 - 11:04

10 Likes

Gkam84 wrote:
Goldfever4 wrote:
Or you're training and you want to stay in a set HR zone?

Because it is quite sensible to go out training on a dual carriageway with 70mph traffic flying past you? Thinking


well quite, but apprently it's also sensible for drivers to pull over and stop to pick someone up on such roads?

posted by Al__S [547 posts]
24th February 2014 - 12:28

3 Likes

does a shoulder check also count as contributory negligence too!?

posted by McDuff73 [47 posts]
26th February 2014 - 14:48

3 Likes