Time triallist 20% to blame for accident

[Farrina]

Spotted this High Court judgement http://www.bailii.org/ew/cases/EWHC/QB/2017/264.html on the Baili site, holding that a time triallist was 20% to blame for his (life changing) injuries caused by a driver negligently turning across in front of him.

As a biased cyclist, I must confess that this financial penalty seems very hard on the rider, especially given that the driver of the offending vehicle was convicted of driving without due care/attention having completely failed to see him (or apparently any other following vehicles - see paragraph 10 of judgement).

I wonder how many other drivers have been distracted for 4 seconds ....

[reohn2]

Having read the report,I fail to see how any blame can be attached to the cyclist,a van turned across his path and he failed to stop in time mean the van driver failed to negotiate or see oncoming traffic as he made a right turn across it and the cyclist couldn't stop in time because of his bad driving.
It's pure and simple he was convicted of driving without due care and attention,that surely means he was driving without due care and attention and the collision was totally his fault.
I don't see how a judge could come to any other conclusion

[kwackers]

Having read the report,I fail to see how any blame can be attached to the cyclist,a van turned across his path and he failed to stop in time mean the van driver failed to negotiate or see oncoming traffic as he made a right turn across it and the cyclist couldn't stop in time because of his bad driving.
It's pure and simple he was convicted of driving without due care and attention,that surely means he was driving without due care and attention and the collision was totally his fault.
I don't see how a judge could come to any other conclusion

Hmmm, well I read it and got the impression that yes the van pulled out on him but he was head down and paying no attention, had he been looking were he was going then he either may not have hit the van or hit it much slower.

In this case I'm unsure and think perhaps 20% contribution isn't grossly unfair.

[reohn2]

So you conclude if he'd hit the van in the middle or near the front then no negligence could be attributed to the cyclist?

Let's change the cyclist's mode of transport to a car,what then in the same circumstances and impact point ei;rear half of the van,what then?

[kwackers]

So you conclude if he'd hit the van in the middle or near the front then no negligence could be attributed to the cyclist?

Let's change the cyclist's mode of transport to a car,what then in the same circumstances and impact point ei;rear half of the van,what then?

They estimate 4 seconds between the van pulling out and him hitting it. The amber sequence on traffic lights is only 3 and you're expected to be able to stop for that.

As I said, I'm unsure but *if* they're correct then apportioning some blame would seem appropriate.

[reohn2]

So you conclude if he'd hit the van in the middle or near the front then no negligence could be attributed to the cyclist?

Let's change the cyclist's mode of transport to a car,what then in the same circumstances and impact point ei;rear half of the van,what then?

They estimate 4 seconds between the van pulling out and him hitting it. The amber sequence on traffic lights is only 3 and you're expected to be able to stop for that.

As I said, I'm unsure but *if* they're correct then apportioning some blame would seem appropriate.

An estimate.


The driver's statement to the police:-

Mr Bhakar told police when interviewed on 8 October 2012 that the low sun would have an impact on the view of a driver looking east to check if the road was clear, but it was unnecessary to explore expert evidence on this. The defence accepted that whatever the difficulty careful observation should have resulted in other road users being seen, but Mr Bhakar had apparently not seen Mr Richard's motorbike, the tandem, or the cycles of Mr Rickson or Mr Hammond. He also indicated in cross examination that he had not seen the race marshals or cycling event signs that had been posted at roundabouts he had passed before reaching the junction.

Who wasn't paying attention?

[[XAP]Bob]

The claimant was an experienced cyclist who had performed time trials on this road on two previous occasions. He was aware of the position of this junction and the hazard that it presented to cyclists. He was familiar with the advice leaflet handed out to participants and the safety instructions directed to beginners and others that included:
"i) a cyclist is less likely to be seen than a car by a driver of vehicles. You need to remember this when approaching any road junction….

ii) head down riding is another major hazard as the rider will not see an obstacle on the road…it is no good saying 'the car should not be there. The answer to that is 'You should have seen it'….

In summary, an experienced cyclist was approaching a potential hazard presented by a clearly identified junction, with a long clear view of the same. He knew the road and was aware of the potential hazard such a junction might pose. I can see no reason why if the claimant was maintaining a forward look out on approaching the junction he would not have seen the white van waiting for a few seconds to make the turn across the carriageway and then starting to move across at a slow and steady pace. I can also see no reason why if he had made such observations he would not have decelerated by braking. There is no reason to consider that his attention needed to be directed elsewhere. It may be that the presence of a motorbike or an overtaking tandem would have deterred a change of lane or position within the lane, but that would not deter braking.

I have every sympathy for the claimant both for the peril in which he was placed by the defendant's driving and the catastrophic consequences of the injuries suffered as a result of the collision. I have carefully reviewed the evidence of fact and opinion and the respective submissions made on it, but I am driven to the conclusion that the failure to either observe or react when the opportunity was there to do both was in all the particular circumstances of this case culpable and constituted contributory negligence.
I recognise at once that his culpability was very much less than the defendant. He did not create the hazard; he failed to observe or to make a reasonable response it when he had time and/or space to do so or to make a reasonable response to it when. The defendant was able to make his turn at his leisure and had ample opportunity to keep a watch on the road and observe all traffic including cyclists. It is surprising that he failed to have noticed the signs and monitors on the way to the junction or apparently any of the cycles and motor-cycles coming his way. Any cyclist is peculiarly vulnerable to being hit by a car and a cyclist in a time trial is particularly vulnerable when sharing the road with a motor vehicle.

From what I have just read it is a case that the van driver made a terrible error - his observation was well below the level excepted of drivers. However the cyclist had several seconds in which he could have seen the van moving.
At this point the cyclist has the opportunity to ease up - and they didn't...

The culpability is with the van driver, with some negligence on the part of the cyclist - not because they did anything wrong, but because they failed to do something which would have prevented the accident.

It looks like a fairly considered response by the The Honourable Mr Justice Blake - although how you come up with 20% (as opposed to any other number) is beyond me.

[meic]

The amber sequence on traffic lights is only 3 and you're expected to be able to stop for that.

A traffic light is allowed and even expected to change colour in front of you.
A vehicle isnt allowed to pull out in front when you have priority.
If you intended to stop for a potential amber light, you would have lost some speed. If it appeared out of nowhere, you wouldnt succeed in stopping in time.

There is a reasonable scenario of expecting a car that pulls on to a two lane dual carriageway to actually do so without entering your lane and hitting you. So braking isnt necessarily the best reaction to such a maneuver. In fact it could be disastrous to do so on many occasions.
The judge said that somebody shouldnt be held liable for not taking the most effective course of action when put into a dangerous situation and he should have kept with that principle.

[kwackers]

A traffic light is allowed and even expected to change colour in front of you.
A vehicle isnt allowed to pull out in front when you have priority.
If you intended to stop for a potential amber light, you would have lost some speed. If it appeared out of nowhere, you wouldnt succeed in stopping in time.

There is a reasonable scenario of expecting a car that pulls on to a two lane dual carriageway to actually do so without entering your lane and hitting you. So braking isnt necessarily the best reaction to such a maneuver. In fact it could be disastrous to do so on many occasions.
The judge said that somebody shouldnt be held liable for not taking the most effective course of action when put into a dangerous situation and he should have kept with that principle.

The driver is to blame, there's no doubt about that.
But you're still expected to be looking where you're going, particularly when you're passing a junction.

I don't have vast knowledge of such judgements but there does seem to be a theme in most of them that even if the other party did something outside of the requirements of the HC that resulted in the accident then if one still had the ability to avoid the accident then some blame is usually apportioned. That seems to be the case here.

If the conditions of the accident aren't what the judge based this on then that's the basis for an appeal. If they are then the judgement seems fair.

[Barks]

I think it is complete conjecture on the part of the Judge that the cyclist MAY not have been looking ahead when the van pulled across the road. It MAY have been the case but no way on earth can that be proven or even deduced on a balance of probabilities - the Judge is simply looking for any excuse to place some contribution on the cyclist. This accident's cause was the drivers impatience and lack of attention and as such he should be liable for the full element of any compensation unless there was specific evidence that the cyclist was not looking ahead. As the earlier post has mentioned, if a car had ploughed into the side of the van there would be no discussion on this point at all. This is blatant discrimation against vunerable road users and should be challenged vigorously. It is the same with those who are hit by cars when not wearing a helmet or hi viz - far too often there is a clear ambition on the part of decision makers to pass a level of blame onto a completely innocent party. Just look at the incident where Chris Grayling opened a car door onto a passing cyclist. Any normal person would have held his hand up, admitted he had done wrong and at the very least offered to pay the victim any costs that resulted at the very least. But no, platitudes to a shocked and uncertain victim to ensure that no further action or embarrassment resulted. Any person of integrity, let alone one with a high public profile, should have reported himself to the police for them to issue the necessary FPN but no, as the victim won't know who is involved and is not in a state of mind to understand the implications we will take advantage of him. That nothing has happened to bring Grayling to account in the light of the video footage is nothing short of disgraceful. I have written to my MP about and not even had a reply- am following up though on the latter

[irc]

Seems a reasonable judgement to me. If the rider was head down not looking ahead he shoulders some of the blame. I know a rider who crippled himself riding head down into the back of a parked bus. Riding head down is not a wise thing to do but one of the experts filmed the 2015 staging of this event and found 25% of competitors were head down at the point this crash occurred.

Dr Walsh had unobtrusively filmed competitors in the 2015 running of this race riding up the incline before the impact site, and some 25% had dipped their heads down in the position advised against.

Being head down seems the most likely cause of the rider (as agreed by the experts from both sides) not slowing down at all before impact.

The force of the impact was such that both experts agreed that there was no difference between the travelling speed at the time when the van crossed the road and the impact speed

[kwackers]

I think it is complete conjecture on the part of the Judge that the cyclist MAY not have been looking ahead when the van pulled across the road.

If you read the report you'll spot the bit irc quoted where experts agreed that he'd not braked, therefore it's not conjecture but balance of probabilities.

As the earlier post has mentioned, if a car had ploughed into the side of the van there would be no discussion on this point at all.

Wrong again. Plenty of examples where blame was apportioned when the 'wronged' party failed to avoid the accident even though they had the opportunity to do so.

Imagine a scenario where you're travelling along at 60mph and in the distance a car turns out in front of you, after a minute or so you crash into the back of him.
Whose fault is that? Obviously yours.
What if it's 30 seconds before you crash? Or 20? 10?
At some point it's obviously his fault and at some point obviously yours. Between those two points there's a grey area. Could you have avoided the crash? Did you try to? That's what the 20% apportioned blame is about. The driver pulled into the path of the cyclist, experts agree the cyclist had time to stop but made no attempt to do so.

[[XAP]Bob]

I think it is complete conjecture on the part of the Judge that the cyclist MAY not have been looking ahead when the van pulled across the road. It MAY have been the case but no way on earth can that be proven or even deduced on a balance of probabilities - the Judge is simply looking for any excuse to place some contribution on the cyclist. This accident's cause was the drivers impatience and lack of attention and as such he should be liable for the full element of any compensation unless there was specific evidence that the cyclist was not looking ahead. As the earlier post has mentioned, if a car had ploughed into the side of the van there would be no discussion on this point at all. This is blatant discrimation against vunerable road users and should be challenged vigorously. It is the same with those who are hit by cars when not wearing a helmet or hi viz - far too often there is a clear ambition on the part of decision makers to pass a level of blame onto a completely innocent party. Just look at the incident where Chris Grayling opened a car door onto a passing cyclist. Any normal person would have held his hand up, admitted he had done wrong and at the very least offered to pay the victim any costs that resulted at the very least. But no, platitudes to a shocked and uncertain victim to ensure that no further action or embarrassment resulted. Any person of integrity, let alone one with a high public profile, should have reported himself to the police for them to issue the necessary FPN but no, as the victim won't know who is involved and is not in a state of mind to understand the implications we will take advantage of him. That nothing has happened to bring Grayling to account in the light of the video footage is nothing short of disgraceful. I have written to my MP about and not even had a reply- am following up though on the latter

I don't think it's conjecture that he wasn't looking - I can't think of any reasonable alternative explanation for the lack of speed change. Can you?

[Barks]

Sorry, there is no EVIDENCE that he was not looking, the van pulled across and none of the witnesses had any direct view of the distance they were apart, the motorbiker hadn't even noticed the cyclist until the impact and the following cyclist was way back. Estimating speeds of the van is complete conjecture by all these parties and if the following cyclistbhad not mentioned the 'head down' concerns would the Judge have picked up on it? Nobody has any objective evidence and there are clear doubts and discrepancy bewteen the 'expert' witness accounts, far too much doubt, admittedly, in my opinion, to have got anywhere near apportioning blame to the victim. I accept others may have other ways of looking at this but that's how I see it.

[Postboxer]

If I read the maths right in point 21, he was 38.8 metres away when the van started to cross and could have come to a stop 6 metres from the van. However, it's impossible to be looking everywhere at once, so a half second looking behind him at the wrong time and these 6 metres are gone and he would hit the van. Also, they say a fraction of deceleration would mean no collision but it's unclear as to whether they have allowed for the fact that he may have swerved right across the first lane trying to avoid collision, a 3.5m wide lane, meaning the van would have had to have travelled 3.5m lane plus another metre for the back end of the van to clear the lane, which would have taken a whole other second before the van is out of the way.

I think they should have got the van and seen how fast it could clear the junction from a standing start, assuming a motorcyclist travelling 60mph some distance away can actually definitely say that the van was stopped in the middle of the road before starting to cross, if not, the van may have been going a lot faster.

20% seems harsh, how long did the van driver have to observe the cyclist, signs, marshalls etc without noticing them, vs how long the cyclist had to observe the van starting to move across the road. They also need to take into account at what time the cyclist my have started swerving around the back of the van, reducing any period of alleged inattention still further. It all just sounds like an evil insurance company trying to not pay a fair amount to a cyclist their driver has injured.