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Specialist cycling solicitor Mark Hambleton explains why a recent high-profile case reinforces a key principle that usually supports cyclists in their compensation claims following collisions with motorists

There has been a lot written about the case between pedestrian Gemma Brushett and cyclist Robert Hazeldean in the newspapers and cycling press. Rightly so, it’s an interesting one. Unsurprisingly, they have been all over it because it’s a rare example of a cyclist colliding with and injuring a pedestrian. Of course, it’s worth noting the cyclist was also injured, so perhaps the infrequency of such events is what makes it interesting, or perhaps journalists can’t pass up the opportunity to demonise cyclists? Just look at how Charlie Alliston’s tragic collision with Kim Briggs was reported.

However, in all the furore around the case, one aspect seems to have been missed: this case actually reinforces a key principle in law, one that is actually good for cyclists on the whole. I’ll get to this shortly, but first I’ll give you the details of the case. However, if you know the facts feel free to click here to skip to the contentious bit…

What happened?

On 20 July 2015, pedestrian Gemma Brushett was crossing a road in London on her way home. At the same time, regular cyclist Robert Hazeldean was cycling through the city, on his way home too.

Mr Hazeldean cycled through a green light at a busy junction, seemingly around the time the lights changed so he might have been the first one through the lights. He could see the road ahead was not clear, as about 25 metres ahead of him pedestrians, including Ms Brushett, were still crossing the road. He also knew that the point where the pedestrians were crossing was not controlled by a red/green man.

Mr Hazeldean sounded an air horn on his bike, and in his statement to the police he said that this cleared a path towards the middle of the road, near the yellow bollards identifying a small traffic island.  

At this point, though, Mr Hazeldean was accelerating (it was uphill on the other side of the junction) and Ms Brushett stuttered and retreated towards the central island rather than continuing forwards towards the other side of the road, as Mr Hazeldean thought she was going to do. He shouted a warning, braked and swerved towards the central island, and there was a collision between the two of them where they were both knocked out.

Despite both of them being injured, only Ms Brushett brought a claim for compensation for her injuries and Mr Hazeldean decided not to. He did not take legal advice until 2018.

The parties were unable to agree settlement of the claim prior to a trial before District Judge Mauger earlier this summer. Ms Brushett didn’t give oral evidence at trial; she was knocked unconscious at the scene and couldn’t remember the accident itself.

What the court decided

The judge found that Ms Brushett was established in the road and that Mr Hazeldean had cycled through a green light about 25 metres before the point at which Ms Brushett was crossing the road.

The judge rightly stated that Mr Hazeldean owed a duty to other road users to cycle with reasonable care and skill. The judge found that Mr Hazeldean could not safely cycle through the junction without giving way to those pedestrians still in the road e.g. Ms Brushett – this is an important part of the argument; the case would have been decided differently if Ms Brushett had been struck having taken a single pace off the pavement when she was struck rather than being established in the road.

At this point I think the temptation is to get frustrated for a fellow cyclist and say “the cyclist did nothing wrong, he cycled through a green light and encountered pedestrians who should have been waiting until it was safe to cross the road”. However, things aren’t that black and white.

It’s reasonable to expect cyclists to respond to what’s in front of them, even if what’s beyond a green light isn’t what they expect to encounter. The same applies to motorists who should also drive appropriately depending on what’s in front of them, some examples of cases where that responsibility has been considered in the context of collisions with cyclists are in a previous blog here.

The judge found that Mr Hazeldean’s conduct fell below the standard reasonably to be expected of him in these circumstances. In plain English: he should have slowed and waited for the pedestrians to clear the road. Wouldn’t we all do that? Is that really an unreasonable expectation?

The judge also found that Ms Brushett’s conduct (it was a finding of fact by the judge that she had been looking at her phone) clearly contributed to the accident.

Overall, at the end of day one of the trial, the judge concluded both of them were equally responsible. Liability was therefore apportioned 50:50. During day two, the following week, the compensation payable to Ms Brushett was assessed further for her concussion, dental injuries and facial scarring.

So, why might this decision be good for cyclists?

Two words: causative potency.

This term describes the potential for road users to cause damage to each other. The party with the greater potential to do damage to a more vulnerable road user often bears the greater burden and this is something taken into account by judges on a regular basis when a cyclist is injured by a motorist. Obviously, in that scenario, the cyclist is the vulnerable party but in this case it was the cyclist who had the potential to do greater harm to the pedestrian.

In this case, the judge said something along the lines of “A cyclist must be prepared for pedestrians to act in unexpected ways”. This is consistent with the language I have heard judges use when assessing civil compensation claims by cyclists against motorists. Let’s not forget that pedestrians are our most vulnerable road users.  

More often than not, causative potency favours cyclists in civil claims for compensation following road traffic collisions and impacts upon how judges apportion responsibility for collisions. Clearly some weight would have attached to the potential for Mr Hazeldean to cause greater damage to Ms Brushett here, who was the more vulnerable road user in that situation.

To ensure fair outcomes, it’s important for the courts to continue applying the principle of causative potency in this way when deciding cases for compensation brought by cyclists against motorists. Where cases are brought by pedestrians injured by cyclists, causative potency works against cyclists. It’s also worth noting that these cases are few and far between, so much so that I don’t think we should be concerned by this decision.

Causative potency is a key principle which supports cyclists in claims against negligent motorists. That’s why I think we should understand this case and see that the approach of the judge is the sort of approach that is more frequently applied for the benefit of cyclists to reflect their vulnerability compared to the occupants of motor vehicles. In my view, arguing against its application in this case is inconsistent with the stance we should be taking.

Why the bankruptcy then? Should cyclists be concerned?

If you read this and feel worried about being made bankrupt following a collision with a pedestrian, then my advice would be that you should take out an appropriate insurance policy; something Mr Hazeldean did not do. That’s not a criticism of him, he may have considered himself so unlikely to cause damage or injury to anyone else that he didn’t feel there was a risk of not being insured. Others may take a different view about that risk.

Clearly, a great number of cyclists have seen this story in the papers and sought to obtain their own insurance. The websites for Cycling UK and British Cycling reported an overwhelming take up of membership requests after this case was reported. One benefit of such a membership is public liability insurance. Had Mr Hazeldean been insured, his insurer would have picked up the tab to pay the costs and compensation awarded to Ms Brushett.

It’s worth considering how the law works around costs though. As a more general point, legal costs for personal injury claims will only be recovered (paid) if they are proportionate to the case that has been worked on, something which is assessed by a judge if costs are not agreed by the parties. Therefore the likelihood of Ms Brushett’s costs being paid in the sum of £95k, as claimed, are extremely slim. A crowdfunding site to help Mr Hazeldean to pay the compensation monies and costs has quickly exceeded £50k, but we’ll have to wait and see whether all of that is required to meet the costs he’s ordered to pay.

The legal costs would have been far less and the case probably wouldn’t have gone to trial had Mr Hazeldean sought legal advice straight away. Had he done so, he would probably have been advised to bring a counter claim against Ms Brushett for his injuries and more often than not this type of case settles before trial. Ultimately, the trial would have brought with it unnecessary risk for both parties.  

It’s a terribly unfortunate situation that two vulnerable road users were involved in a collision when they were just trying to get home from work. I feel extremely sorry that Mr Hazeldean has ended up in this situation – the worry of it all must have been hugely wearing and it could all have been avoided or at least minimised if he’d done things differently. That’s the benefit of hindsight and being familiar with this area of law.  

I spend much of my time representing injured cyclists so I appreciate I’m going to be in the minority here but I don’t think the judge’s decision in this case was wrong. A natural reaction amongst fellow cyclists is that the case should have gone against Ms Brushett for looking at her phone when she crossed the road. I don’t necessarily think that would have been a good decision for cyclists in the long run as it would have cast doubt over the principle of causative potency, which regularly operates in favour of injured cyclists in claims for compensation.

What we all find frustrating about this case is that we don’t feel adequately protected (either in criminal or civil (compensation) law) and so when decisions go against us, we end up feeling even more marginalised. The cause of that lies mainly with the inadequate criminal sanctions drivers face, but that’s a different issue and shouldn’t influence your reading of this case – neither party faced criminal charges.

Thanks

I am grateful to Aneurin Moloney, the barrister instructed to represent Gemma Brushett, for his helpful case report and summary of the liability judgment, both of which have been invaluable in understanding the details of this case and the subsequent judgment.  

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 Royds Withy King.

33 comments

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kil0ran [1770 posts] 4 months ago
14 likes

Very useful summary, thanks.

In civil actions against motorists, do cyclists genuinely receive fair treatment? 

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hirsute [1257 posts] 4 months ago
5 likes

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half.
I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

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ktache [2343 posts] 4 months ago
8 likes

Thanks Mark.  I do like reading your legalistic blogs.

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Silversurfmonkey [25 posts] 4 months ago
2 likes

Thanks for a helpful and well balanced assesment of the case.

Worth pointing out that many (most?) insurers require you, the insured, to notify them of any incident that may give rise to a claim as soon as possible after it occurs - this is also true of many general insurance policies that included 3rd party and other liability cover (motor, home, pet etc.).

If involved in a similar incident I'd immediately consult any relevant legal advice service I had access to (offered by both Cycling UK and British Cycling) and then, subject to the advice received, contact my insurer. Not unheard of for insurers to refuse a claim if they're not notified of the risk.

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il sole [98 posts] 4 months ago
4 likes

  A great article and well written.

I too thought along these lines the moment I heard about the case, believing that (I'm no lawyer, so excuse my ignorance), in finding against the cyclist, it may give us cyclists more defence against all aggression and illegal driving committed against us by motorists... it's the same principal as on the ski pistes, every skier higher up the mountain has a strict duty of care over all of those below them. 

As a cyclist I look out all the time for those more vulnerable, such as horses, pedestrians, other cyclists etc... 

I wonder if this case should be used to convince crappy drivers of their responbilities on the road...

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hawkinspeter [4406 posts] 4 months ago
6 likes
hirsute wrote:

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half. I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians. If you consider a crowd of pedestrians, they are unlikely to bump into each other and even if they do, there's scarcely anything more than a bruise resulting. However, add bikes into the mix and there's clearly more chance of collisions and more dangerous outcomes, so you have to consider that it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision.

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

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Tom_77 [43 posts] 4 months ago
2 likes

I'm still not sure about the issue of costs. If the cyclist had been insured why would the costs be limited to £7000?

I found Part 45 (mentioned in The Independent article):

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

 

But:

a) Does the section on Road Traffic Accidents apply (or should I be looking at a different section)? Road Traffic Accidents seem to be limited to incidents involving a "motor vehicle", which would exclude an incident involving a cyclist and a pedestrian.

b) I couldn't see any mention of insurance on that page.

 

If the claimants costs were limited to £7000, would that have prevented the case from going ahead? Seems like it would have to be settled out of court, there can't be many people (in any profession) who'll do £100,000 worth of work for £7000.

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EddyBerckx [743 posts] 4 months ago
2 likes

Excellent article, thanks guys (Mark and Road.cc) for putting this up and clarifying things.

 

One point though about the ability to cause greater harm regarding pedestrians vs cyclists. I was under the impression that on average, 6 cyclists a year are killed by pedestrians and just 3 pedestrians by cyclists (obviously these figures are so small that variation per year is guaranteed), and I would assume the seriously injured figures are similar. As others have pointed out, falling at speed on hard concrete etc can be a lot worse than simply getting hit by a bike - we're generally no more protected than peds (helmets possibly have some use, but are no silver bullet and don't protect when you get pushed under a car...)

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BehindTheBikesheds [3322 posts] 4 months ago
0 likes
hawkinspeter wrote:
hirsute wrote:

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half. I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians. If you consider a crowd of pedestrians, they are unlikely to bump into each other and even if they do, there's scarcely anything more than a bruise resulting. However, add bikes into the mix and there's clearly more chance of collisions and more dangerous outcomes, so you have to consider that it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision.

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

Do they, potentially maybe, in reality that's simply not true at all.

How many cyclists stab and punch the living crap out of others? I'm sure you can find thousands of occurances were people on foot AKA pedestrians have killed, maimed and raped others. That even a slanted review of 'cycling safety' (AKA how can we make more laws for cyclists so we can hammer them more) found that cyclists were wholly at fault for a death on four occasions in the last 7 years, this was 50% greater than totally at fault pedestrians. Peds cause more harm to themselves than people on bikes do whilst on the road/footway when they collide with a person on a bike.

As for  “A cyclist must be prepared for pedestrians to act in unexpected ways”. This is consistent with the language I have heard judges use when assessing civil compensation claims by cyclists against motorists. okay, but the police nor the CPS apply this when a person/s on a bike get killed or maimed by a motorist, we see this often and from that motorists get off scot-free.

Let’s not forget that pedestrians are our most vulnerable road users."

How are people on bikes any more vulnerable than those on cycle, how does Mark prove his statement?

The weight of responsibility here is slanted onto the cyclist, why? He gave warnings, he braked/slowed, he steered to avoid collision, the claimant did nothing to avoid the collision, motorist and cyclist in a similar scenario would see this been the cyclist get killed/seriously injured and all the blame put on their shoulders, not just by the wider public but police/CPS/judges.

There is no parity in apportioning blme/responsibility when it comes to the law and thise that are supposed to be protecting us from injustice.

 

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flobble [155 posts] 4 months ago
1 like

 

Quote:

"it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians.

...it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision...

I'm struggling a bit with this too.

The presence of cyclists with greater kinetic energy (they move faster) and hard pointy objects (bike) does increase the risk of more serious injury. But that's not the same thing as saying the cyclist has more potential to do harm. For example, a pedestrian bumps a cyclist's handlebars and the cyclist hits the deck. Is it the cyclist that is doing the harm (by virtue of their greater kinetic energy), or the pedestrian (by virtue of causing the collision)?

It's quite different to a cyclist/motorist incident, where the motorist is largely protected by their vehicle.

Cyclists and pedestrians are pretty much equally vulnerable. Cyclists are perhaps less agile, but better protected by helmets (don't go there). Again, in contrast to motorists, who are clearly less vulnerable than either.

An explanation of 'causative potency' considering these factors would be interesting.

 

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scrumpydave [34 posts] 4 months ago
5 likes
Quote:

In plain English: he should have slowed and waited for the pedestrians to clear the road. Wouldn’t we all do that? Is that really an unreasonable expectation?

Of course it's not unreasonable - but clearly we wouldn't all do that or no one would be defending this guy.

I have people walking out in front of me every day on my commute. I slow down to keep everyone safe. I don't speed up and sound an air horn. Keeps my blood pressure lower if nothing else.

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quiff [229 posts] 4 months ago
3 likes
scrumpydave wrote:
Quote:

In plain English: he should have slowed and waited for the pedestrians to clear the road. Wouldn’t we all do that? Is that really an unreasonable expectation?

Of course it's not unreasonable - but clearly we wouldn't all do that or no one would be defending this guy.

I have people walking out in front of me every day on my commute. I slow down to keep everyone safe. I don't speed up and sound an air horn. Keeps my blood pressure lower if nothing else.

Indeed. I cycle through the junction in question on my commute. This stretch through the City is incredibly busy with pedestrians, many of whom are stepping off the pavement, or just walking in the road because the pavements are too full. Obviously you therefore need to exercise caution and moderate your speed, but it's not realistic to stop and wait until there is nobody in the road within 25 metres of you.

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quiff [229 posts] 4 months ago
1 like
Tom_77 wrote:

I'm still not sure about the issue of costs. If the cyclist had been insured why would the costs be limited to £7000?

I found Part 45 (mentioned in The Independent article):

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

 

But:

a) Does the section on Road Traffic Accidents apply (or should I be looking at a different section)? Road Traffic Accidents seem to be limited to incidents involving a "motor vehicle", which would exclude an incident involving a cyclist and a pedestrian.

b) I couldn't see any mention of insurance on that page.

 

If the claimants costs were limited to £7000, would that have prevented the case from going ahead? Seems like it would have to be settled out of court, there can't be many people (in any profession) who'll do £100,000 worth of work for £7000.

I'm also confused about this for the same reasons. On your last question though, what they're talking about is recoverable costs being limited.  So (assuming the point is otherwise correct) £7,000 would be the limit of costs which could be recovered from the unsuccessful party. In theory, someone could still rack up £100,000 of legal costs (and be liable to pay them), but they could only recover £7,000 of them from their opponent. In practice though, if he had legal advice and insurers involved, then the case would never have got as far as racking up £100,000 of costs because it would have been settled for that very reason - nobody wants to spend £93,000 they are never going to get back.     

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hawkinspeter [4406 posts] 4 months ago
2 likes
BehindTheBikesheds wrote:
hawkinspeter wrote:
hirsute wrote:

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half. I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians. If you consider a crowd of pedestrians, they are unlikely to bump into each other and even if they do, there's scarcely anything more than a bruise resulting. However, add bikes into the mix and there's clearly more chance of collisions and more dangerous outcomes, so you have to consider that it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision.

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

Do they, potentially maybe, in reality that's simply not true at all.

How many cyclists stab and punch the living crap out of others? I'm sure you can find thousands of occurances were people on foot AKA pedestrians have killed, maimed and raped others. That even a slanted review of 'cycling safety' (AKA how can we make more laws for cyclists so we can hammer them more) found that cyclists were wholly at fault for a death on four occasions in the last 7 years, this was 50% greater than totally at fault pedestrians. Peds cause more harm to themselves than people on bikes do whilst on the road/footway when they collide with a person on a bike.

As for  “A cyclist must be prepared for pedestrians to act in unexpected ways”. This is consistent with the language I have heard judges use when assessing civil compensation claims by cyclists against motorists. okay, but the police nor the CPS apply this when a person/s on a bike get killed or maimed by a motorist, we see this often and from that motorists get off scot-free.

Let’s not forget that pedestrians are our most vulnerable road users."

How are people on bikes any more vulnerable than those on cycle, how does Mark prove his statement?

The weight of responsibility here is slanted onto the cyclist, why? He gave warnings, he braked/slowed, he steered to avoid collision, the claimant did nothing to avoid the collision, motorist and cyclist in a similar scenario would see this been the cyclist get killed/seriously injured and all the blame put on their shoulders, not just by the wider public but police/CPS/judges.

There is no parity in apportioning blme/responsibility when it comes to the law and thise that are supposed to be protecting us from injustice.

I was discussing "accidental" collisions between pedestrians and cyclists, so intentional knifing/raping etc isn't particularly relevant. I do concede that there's very little chance of someone performing a rape whilst simultaneously riding a bike.

My point is that cyclists are carrying more momentum and that makes them more "dangerous" even though collisions are more likely to be caused by pedestrians.

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ROOTminus1 [80 posts] 4 months ago
1 like
BehindTheBikesheds wrote:

*snip*

The weight of responsibility here is slanted onto the cyclist, why? He gave warnings, he braked/slowed, he steered to avoid collision, the claimant did nothing to avoid the collision, motorist and cyclist in a similar scenario would see this been the cyclist get killed/seriously injured and all the blame put on their shoulders, not just by the wider public but police/CPS/judges.

There is no parity in apportioning blme/responsibility when it comes to the law and thise that are supposed to be protecting us from injustice.

 

I understand your frustrations here, unfortunately this is a Civil case where a claimant has a higher chance of recieving 'justice' (of the cash-in-hand variety). As a cyclist in a collision, your best defence against a Civil suit is a counter claim, in which the majority of cases Causative Potency shall be your friend (as in the 99.99% of collisions, the cyclist is the more vulnerable road user).

The frustrating part is this does nothing to support the defence of cyclists in Criminal cases, whereby Police and CPS have to meet higher thresholds of proof beyond all reasonable doubt, and as such, they go for low hanging fruit if they feel they can get any conviction at all, else just throw cases out.

I'm no lawyer but if you are involved in a collision, I'd try and seek legal advice about claiming a civil case along side any criminal one the CPS may raise.

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burtthebike [3408 posts] 4 months ago
2 likes

Thank you for that excellent, concise and clear explanation.

But I'm not sure you are right about causative potency, the cyclist having the potential to do greater harm to the pedestrian ".....but in this case it was the cyclist who had the potential to do greater harm to the pedestrian."  Given that cyclists have been killed in collision with pedestrians, from which the pedestrian walked away, and that the cyclist is likely to be travelling faster, and therefore more likely to be injured, it seems that the injury causing potential is more likely to be equal or greater for the pedestrian.  It would require some investigation to find out the real world likelihood of injury/death in cyclist/pedestrian collisions, and it cannot be assumed that the cyclist has greater potential to do harm.

Both cyclists and pedestrians appear to be equally vulnerable, except it has just occurred to me that perhaps the cyclist was wearing a helmet and therefore subject to risk compensation, and taking more risks as a result.  I can't find any report which says whether he was wearing one or not, but they all mention that he was knocked out, but if he hadn't been wearing one, I would have expected that fact to be front and centre.

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Mark Hambleton [21 posts] 4 months ago
4 likes
kil0ran wrote:

Very useful summary, thanks.

In civil actions against motorists, do cyclists genuinely receive fair treatment? 

My experience is that the judgments in civil cases often seem fairer than the criminal judgments

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Mark Hambleton [21 posts] 4 months ago
2 likes
ktache wrote:

Thanks Mark.  I do like reading your legalistic blogs.

Thanks!

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Mark Hambleton [21 posts] 4 months ago
2 likes
hawkinspeter wrote:

hirsute wrote:

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half. I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians. If you consider a crowd of pedestrians, they are unlikely to bump into each other and even if they do, there's scarcely anything more than a bruise resulting. However, add bikes into the mix and there's clearly more chance of collisions and more dangerous outcomes, so you have to consider that it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision.

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

limited options for images - will try and mix it up!

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hirsute [1257 posts] 4 months ago
2 likes
burtthebike wrote:

Thank you for that excellent, concise and clear explanation.

But I'm not sure you are right about causative potency, the cyclist having the potential to do greater harm to the pedestrian ".....but in this case it was the cyclist who had the potential to do greater harm to the pedestrian."  Given that cyclists have been killed in collision with pedestrians, from which the pedestrian walked away, and that the cyclist is likely to be travelling faster, and therefore more likely to be injured, it seems that the injury causing potential is more likely to be equal or greater for the pedestrian.  It would require some investigation to find out the real world likelihood of injury/death in cyclist/pedestrian collisions, and it cannot be assumed that the cyclist has greater potential to do harm.

Both cyclists and pedestrians appear to be equally vulnerable, except it has just occurred to me that perhaps the cyclist was wearing a helmet and therefore subject to risk compensation, and taking more risks as a result.  I can't find any report which says whether he was wearing one or not, but they all mention that he was knocked out, but if he hadn't been wearing one, I would have expected that fact to be front and centre.

Theres a range of interactions. In a semi glance, the speed of a cyclist will cause the pedestrian to fall in an uncontrolled way that could lead to head injuries. In a direct hit, they'd both be in a bad way, in a glancing blow, the cyclist is likely to fall and the pedestrian ok.
My only collision with a ped left me on the deck and him upright and uninjured.

Avatar
Mark Hambleton [21 posts] 4 months ago
3 likes
Tom_77 wrote:

I'm still not sure about the issue of costs. If the cyclist had been insured why would the costs be limited to £7000?

I found Part 45 (mentioned in The Independent article):

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs

 

But:

a) Does the section on Road Traffic Accidents apply (or should I be looking at a different section)? Road Traffic Accidents seem to be limited to incidents involving a "motor vehicle", which would exclude an incident involving a cyclist and a pedestrian.

b) I couldn't see any mention of insurance on that page.

 

If the claimants costs were limited to £7000, would that have prevented the case from going ahead? Seems like it would have to be settled out of court, there can't be many people (in any profession) who'll do £100,000 worth of work for £7000.

Thanks for raising this - need to amend my blog. Mr H's solicitor said £7k costs would have been payable if he was insured. Thinking it through again, even with insurance, I think this case would have been excluded from the fixed costs portal for public liability claims so the costs wouldn't have been fixed even if he was insured. I'll check that point out in more detail.

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Mark Hambleton [21 posts] 4 months ago
1 like
StoopidUserName wrote:

Excellent article, thanks guys (Mark and Road.cc) for putting this up and clarifying things.

 

One point though about the ability to cause greater harm regarding pedestrians vs cyclists. I was under the impression that on average, 6 cyclists a year are killed by pedestrians and just 3 pedestrians by cyclists (obviously these figures are so small that variation per year is guaranteed), and I would assume the seriously injured figures are similar. As others have pointed out, falling at speed on hard concrete etc can be a lot worse than simply getting hit by a bike - we're generally no more protected than peds (helmets possibly have some use, but are no silver bullet and don't protect when you get pushed under a car...)

That's a fair point - blameworthiness is also considered rather than looking at causative potency in isolation e.g. pedestrian deliberately pushes cyclists into a collision with a vehicle, causative potency wouldn't work against cyclist

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Awavey [691 posts] 4 months ago
2 likes

But my issue with this ruling is less about taking a view of defend the cyclist at all costs, its that I do not believe a motorist in a car faced with the exact same circumstances & had then handled them exactly the same way,would have been judged the same, and that cant be right,can it ?

I read today of a case were a motorist was cleared of causing death by dangerous driving,by pleading insanity & claiming they didn't know what they were doing, wheres the causative potency for the victims in that decision?

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brooksby [5271 posts] 4 months ago
1 like
Mark Hambleton wrote:
hawkinspeter wrote:
hirsute wrote:

I think the 50/50 was too arbitrary and was more of they both did something wrong, so split in in half. I'm not convinced by "it was the cyclist who had the potential to do greater harm to the pedestrian." Pedestrian could get a glancing blow, cyclist is highly likely to hit the deck with potential for a range of injuries.

I'd agree with cyclists having more potential to do harm than pedestrians. If you consider a crowd of pedestrians, they are unlikely to bump into each other and even if they do, there's scarcely anything more than a bruise resulting. However, add bikes into the mix and there's clearly more chance of collisions and more dangerous outcomes, so you have to consider that it's the cyclists that are introducing danger just from their increased speed, despite the general cluelessness of peds and whether or not they cause the collision.

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

limited options for images - will try and mix it up!

Mind you, that picture does show a crossing which is notorious for "if there's no motor vehicle coming then I'll just walk out"...

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hawkinspeter [4406 posts] 4 months ago
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brooksby wrote:
Mark Hambleton wrote:
hawkinspeter wrote:

By the way, do most of Mark's articles feature pictures from around Park St/College Green?

limited options for images - will try and mix it up!

Mind you, that picture does show a crossing which is notorious for "if there's no motor vehicle coming then I'll just walk out"...

That whole area is full of hazardous peds. What's annoying is that you can build up a fair bit of speed coming down Park St but then have a corner hiding loads of them about to throw themselves under your wheels. The taxis are probably a greater hazard though, so you can't go too fast past the Hippodrome.

I thought maybe Mark had just gone out with a camera for 10 minutes to shoot all of his article photos. It's an informative article though, so I'm quite happy for him to spend less effort on the photos.

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iandusud [194 posts] 4 months ago
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Amongst other things this article highlights the need for cyclist to have 3rd party insurance and legal representaton. I would therefore encourage any regular cyclist to join either British Cycling or Cycling UK to get this benefit. Personally I joined CUK as they are the body in this country that campaigns for cyclists and so I wanted to support them as they fight for me and other cyclists. 

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Disfunctional_T... [466 posts] 4 months ago
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Quote:

Let’s not forget that pedestrians are our most vulnerable road users.

What is the basis of that claim? How is a pedestrian more vulnerable than a cyclist? If one is walking and another pedestrian bumps into you, usually nothing happens. If one is cycling and a pedestrian bumps into you, usually you are going down... and down hard.

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hirsute [1257 posts] 4 months ago
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Disfunctional_Threshold wrote:
Quote:

Let’s not forget that pedestrians are our most vulnerable road users.

What is the basis of that claim? How is a pedestrian more vulnerable than a cyclist? If one is walking and another pedestrian bumps into you, usually nothing happens. If one is cycling and a pedestrian bumps into you, usually you are going down... and down hard.

Or worse, you glance off and land in front of a car.

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Roger Geffen [66 posts] 4 months ago
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Firstly, thanks Mark for posting this excellent article.

There are several aspects of it that have prompted discussion.  I'm going to comment on just one of them, namely the question from Burtthebike and others on whether or not the civil law generally provides reasonable justice for cyclists, when they are the injured party (i.e. when they are claiming injury damages from a driver, instead of when an injured pedestrian is claiming damages from a cyclist).

I'd agree with Mark H that the answer is "yes": outcomes for cyclists in the civil courts are generally far better than in the criminal courts. However I'd add a word: "yes - eventually!".

When a driver is facing an injury claim from a cyclist, it is entirely normal for the driver's insurance company to seek to bring a "contributory negligence" claim against the cyclist.  In other words, they will seek to argue that the injury might have been avoided, or been less serious, if the cyclist had been wearing a helmet, or hi-vis, or anything else they can find that the cyclist was / wasn't doing that arguably contravenes a rule in the Highway Code.   Contributory negligence in such as case would means that, although "primary liability" may rest with the driver, the cyclist is also partially at fault.  Hence they are deemed to be X% responsible and can therefore only recover (100-X)% of the value of the damages they have suffered.

In many low-value cases, the cyclist will go to a high street soliticor and be advised to accept the reduction in an out-of-court settlement, for fear of the costs of fighting and loosing the case. 

However, where a cyclist facing a high-value case is advised to take the case on, and has the bravery to do so (it really does require some bravery), they usually win, in the end. 

Such cases often involve putting thousands of pounds - sometimes tens of thousands - and may take years to settle.  This can, of course, be hugely stressful. And all the while, there is an injured person who may be needing care or treatment, but who hasn't yet secured the compensation that will enable them to pay for it.

But they generally win in the end.

The strongest argument for introducing 'presumed liability' rules is not that it might alter driver behaviour.  (That might be true, but there is no way of ever gathering robust evidence to prove the point.  The many countries with presumed liability rules - i.e. most of the rest of Europe - have had this principle in their legal frameworks in some form since the early days of motoring, even if some have amended it more recently e.g. France in 1986 and the Netherlands in 1994.  Consequently, reliable "before-and-after" data simply don't exist).  A much better argument for 'presumed liability' rules is that they would secure swifter justice in a small number of high-value cases where the victim (and/or their relatives/friends/carers) have to go through years of hell before they recieve compensation. 

The key point though is that there's only a very small number of cases where the civil courts produce really unjust judgements.

By contrast, hardly a week goes by without another criminal case appearing in road.cc and elsehwere, where a case involving a seriously or fatally injured cyclist - or pedestrian- results in what appears to be a really  unjust outcome.  It's the criminal law, rather than the civil law, that fails cyclists (and indeed pedestrians) so often and so spectacularly.

So, although Cycling UK is seeking changes to both the civil law (the introduction of presumed liability) and the criminal law (there's a whole host of reforms we're seeking here), we're giving much greater priority to the latter. That's because changes to the criminal law have far greater potential to result in fairer court outcomes, and thus to affect driver behaviour, in ways that would make our roads safer for everyone.

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ktache [2343 posts] 4 months ago
2 likes

Thank you Roger, please keep up the great work and Good Luck.

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