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Cycling and the law: Commuting by bike? Here are five things you need to be aware of

Cycling law expert Mark Hambleton takes you through the top five things to bear in mind when commuting on the road this summer

Although my latest blog is aimed at commuters, a lot of the content should be of interest to all cyclists.

With the glorious weather and longer daylight hours, I’m seeing more and more people commuting on their bikes. There has also been an increase in the number of people getting in touch with me to find out about whether they can make a claim for injuries sustained while cycling.

I thought I would list the types of new cases I’m dealing with and set out the legal basis for each claim. Without further ado, here are the top five things to be aware of if you’re commuting at the moment:

1 Potholes

The harsh winter weather has contributed to potholes appearing everywhere – I think they’re more noticeable on our roads this year than ever before.

Unfortunately, the pothole problem has only been compounded by many highway authorities having their budgets cut. This makes it difficult for them to maintain the roads (as they are required to do by section 41 of the Highways Act).

Claims for damages (for your injuries, damaged bike, loss of income etc) are likely to succeed if the highway authority cannot prove a ‘section 58 defence’; that it took reasonable care to make sure the highway was not dangerous for traffic (including pedestrians and cyclists).

The injuries I have recently come across at work include: a fractured pelvis, a fractured arm and hand, facial and dental injuries and a fractured collarbone and punctured lung. These are not insignificant injuries so the dangers posed by potholes should not be underestimated.

If a pothole causes you to have an accident, do take photos of the measurements and speak to a specialist solicitor about your options.

> You can find out more about recent changes as to how potholes are repaired here.

2 T-junctions

I have recently been instructed by a client who suffered a fractured femur when a car pulled out of a side road and collided with the side of her bicycle at a T-junction.

There was nothing my client could have done to avoid this accident. The claim is being investigated and a liability response is awaited from the relevant motor insurer.

What you might find most surprising about this accident is that it occurred in May in daylight hours. Often these accidents are associated with darker winter months.

The claim is proceeding on the basis that the driver’s negligence was the cause. Clearly the driver failed to keep a proper lookout and failed to observe my client’s right of way; these allegations are evidenced by the facts of the accident itself (and my client’s version is supported by independent witnesses).

> You can find out more about what your rights are when hit by a car here.

3 Car doors

A dilemma that we all face on a regular basis is whether we should cycle in close proximity to parked cars at the side of the road to allow other road users to overtake us. This is a dilemma because you potentially put yourself at risk of being knocked off your bike by a car door if it is opened by someone without looking.

These types of accidents can cause significant injuries. I am representing a client who suffered a very severe leg fracture (affecting his knee joint), after he was thrown off his bike when he was “car doored”. 

Campaigners (quite rightly) want to see motorists receive training on the “Dutch reach” to avoid these types of completely unnecessary accidents. From a legal perspective, these claims are founded in negligence which requires injured cyclists to prove the following: the motorist owed (and breached) the duty of care owed to the cyclist, this breach of duty caused the loss, and the loss was foreseeable i.e. it was not too remote an occurrence from the act complained of.

4 Mechanical problems

This is a broad heading and includes bike mechanics or manufacturers making mistakes when they service or assemble bikes, parts and components failing due to age/wear and tear, and parts and components failing due to defective manufacture/assembly.

Some cases are more straightforward than others. The cut and dry cases tend to be where a bike has been sold as ‘ready to ride’ although the brakes were defective or where a new frame breaks causing the rider to fall off.

The harder cases are those involving older bikes or those accidents where a working part (such as a chain) breaks and causes an accident. If the bike hasn’t been properly looked after and maintained then it can be difficult to establish a fault or defect is the cause rather than normal wear and tear.

Depending on the facts of the case, they’re generally either founded in negligence, the Consumer Rights Act 2015 (replacing the Sale of Goods Act) and/or the Consumer Protection Act.

If you’re getting back into commuting this summer, the best advice I could give is to have your bike properly serviced to make sure everything is in good working order.       

5 Accusations of ‘fundamental dishonesty’ when making a claim

Another development cyclists should be aware of is the willingness of motor insurers to allege that cyclists are fundamentally dishonest. In practice I haven’t come across allegations of fictitious cycling accidents but I have come across insurers alleging losses claimed following a cycling accident are being exaggerated for financial gain.

The benefit to the insurer of succeeding with such an allegation is that no damages would be payable to the cyclist (despite the motorist having been at fault for causing the accident), the cyclist would pay costs and the cyclist may have to pay damages too.

I think insurers are spending more time researching injured cyclists to see what they can find out about them online e.g. participation in time trial races, sportives, triathlons and so on. Results and ride histories are generally publicly available and are used by insurers to forensically analyse claims. This is a developing area of law and one to be aware of because I think it has the potential to cause problems for honest cyclists who bring a claim following an accident.  

As a cyclist myself, I often commute without experiencing any issues whatsoever (mainly because I avoid the busiest times on our roads). However, as a solicitor I am well aware of the dangers and issues that we face on a daily basis. It is important to be aware of your rights, just in case you are unfortunate enough to be affected by any of the above. 

After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.

Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at RWK Goodman.

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BehindTheBikesheds | 5 years ago
1 like

When you can't even get phrases and terminology and the exact meaning of such correct, which is important from a legalise POV it doesn't give you much confidence in the ability of the person making these errors to get things right.

A 'way' or bridge is out of repair if it would be deemed to be so by an ordinary person, you need to ensure who is/are the responsible persons for that, usually the local county authority.

If upon requesting that a repair be made and it is not done (within a certain timescale and the LA depth and width measures to when they are are just to put people off and are not legally enforceable from their POV) then any person can apply for a court order for the responsible persons to make the repair at public expense.

The threat of this alone is usally enough to get things going in the right direction but it takes time and effort. Basically LAs will ignore their lawful responsibility and force you to go to extremes to get things done.

A way should be of a condition that it is safe for all, pedestrians, cyclists, equestrians, motor vehicle users, farmers with their animals but a good one to use against a LA is to say that it is not safe for a limited mobility person to use the road, this does not infer someone in a wheelchair though those that are are very much affected by out of repair roads and footways/paths just as much as those that have trouble walking when the way (or bridge0 underfoot is uneven/out of repair.

If you are in an incident it might be an idea to remind people to ask for a witness to give their details or indeed to check with local authority to see if there is CCTV. Even private companies may have CCTV facing outward that could possibly capture the incident, knocking on a few doors could be worthwhile. Getting police to do their jobs to investigate fully is also something I've done when they thought they could fob off a hit and run as one of those things and just send a 'sorry we can't be arsed we haven't found the criminal' letter.

One area that has come up a lot since the advent of carbon fibre frames that are used for general riding is the cracked or broken frame that supposedly is not covered under warranty when the user has a very minor incident. One on here a few months back stated that they basically fell sideways from a stationary position and the frame broke, the manufacturer told them to jog on, yet under the terms of the Act an item should be fit for purpose, a bicycle frame even one made of carbon should be able to withstand minor mishaps without it snapping like a twig, espeially when you consider the multiple vibrations and even basic knocks one might have in the home.

This is an area that manufacturers are getting away with simply because it's very hard to prove the frame wasn't fit for purpose and what is an acceptable level of 'knock' or impact that you should expect a frame to survive without it being a write off.

If you've paid £5000 for a car you wouldn't expect it to be a write off after a minor impact, why should that be any different for a £5000 bike? This should not change whether it's an out and out racing frame or a more robust carbon commuter/gravel type.

There is also wording in the literature as I pointed out in the thread that was under discussion that stated the frame was "robust", this implies a certain level of resilience, to then deny this descriptor applies when refuting a claim against manufacturer from a minor incident should not be on. You can't describe something as X as a selling point and then say that doesn't apply when the product breaks/fails so readily which would be contrary to the original description/selling point.

srchar | 5 years ago
2 likes wrote:

Clearly the driver failed to keep a proper lookout and failed to observe my client’s right of way

Doesn't "right of way", in legal terms, mean the right to cross someone else's property, while the colloquial usage, with reference to traffic flow, is more accurately termed "priority"?

ajft | 5 years ago

I'm surprised that a solicitor is so careless with words, but i'd have thought that most of the instances in your article where you refer to "accidents" would be better written as "collisions". 

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