You could be 30% liable if left-hooked by a lorry!

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Richard D
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You could be 30% liable if left-hooked by a lorry!

Post by Richard D »

Its the second time this week a judgment published on Bailii has seen the cyclist getting the shitty end of the stick. There's the time-triallist who was told he was partly to blame for his own paralysis after a van pulled across his path on a dual carriageway, and now this one:
http://www.bailii.org/ew/cases/EWCA/Civ/2017/79.html

Lorry waiting at red traffic lights, intending to turn left and indicating, but straddling two lanes. Cyclist filters past, going up to the stop line. When the lights go green, the lorry turns left and the cyclist suffers "very severe injuries". And is held 30% to blame for the collision.

The appeal judgment doesn't really deal with the apportionment of blame to the cyclist, as the argument in the Court of Appeal was by the lorry driver saying that he shouldn't be held to be at fault at all! So the decision of the first instance judge stands - that the cyclist, even though she could not see the lorry's indicators because of a stationary car waiting immediately behind the lorry.

So those yellow signs, warning us not to pass lorries on the inside, could now be amended to say "and if you do pass on the left, on your own head be it; the courts will hold you partly to blame".

Not the operators, for using a design of vehicle that allows this to happen. Not the regulators, for ignoring the problem. Mostly the lorry driver, for doing something that they cannot know to be safe. But partly the cyclist.

Another example of why we have to look out for ourselves out there; we can't rely on the law to keep us safe.
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meic
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Re: You could be 30% liable if left-hooked by a lorry!

Post by meic »

I would not call that a left hook.
A left hook is when the "hooker" is overtaking the victim and turns left before the overtake is finished and they are out of the victim's way.

Overtaking a vehicle which is indicating to turn, on the side they are indicating to, while not in separate lanes, is something that no reasonable road user should do.
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irc
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Re: You could be 30% liable if left-hooked by a lorry!

Post by irc »

Richard D wrote:Lorry waiting at red traffic lights, intending to turn left and indicating, but straddling two lanes. Cyclist filters past, going up to the stop line. When the lights go green, the lorry turns left and the cyclist suffers "very severe injuries". And is held 30% to blame for the collision.


That isn't what happened. The cyclist did not filter up to the line beside a stationary lorry.

Adopting his findings as to the claimant's speed and the time between the lorry pulling off and impact, the judge found that the claimant was 43.5 metres behind the defendant's rear view mirrors when he pulled off.


So the HGV was moving ahead through the junction to turn left (as indicted by it's signals) and was undertaken by the cyclist.

Quite a different scenario from both waiting at a stop line. In that case there is a greater chance for the HGV driver to see the cyclist.

As the judgement says the HGV was straddling 2 lanes so obviously about to turn L or R. It was indicating left (there is CCTV so I don't think that is in dispute). So the cyclist undertook an HGV which was indicating left. Seems to me that a share of liability is entirely appropriate.

The cyclist had 4 1/2 seconds to see the vehicle before it moved off when she was still 27M behind it.

Based on his findings as to time and distance, he held that the claimant was 27 metres behind the rear of the trailer when it moved off, and that she would have had a view of its rear for 32.6 metres before then, a distance it would have taken her about 4½ seconds to travel.


Edit - As Vorpal points out the cyclist may not have seen the lorry signals due to the view being obscured by the vehicle immediately behind the lorry.
Last edited by irc on 24 Feb 2017, 12:27pm, edited 2 times in total.
Vorpal
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Re: You could be 30% liable if left-hooked by a lorry!

Post by Vorpal »

First of all, liability and fault or blame (again) are not the same thing.

Second of all, this was a case on appeal. That is, a previous hearing had found the lorry driver 70% liable for the cyclist's injuries and he appealed the finding, saying the cyclist should have been apportioned a higher percentage of the liability. The appeal was denied. So this judgement did not find that the cyclist was 30% percent liable. Only that the cylists was not *more* than 30 % liable.

The lorry driver was judged to have made a hazardous maneuver, turning left from or partly into lane 2 (a *right* turn lane) at this junction https://www.google.com/maps/@53.2816086 ... 56!6m1!1e1

There were other motor vehicles immediately behind the lorry which blocked the cyclist's view to the lorry mirrors (and therefore the drivers view of the cyclist), and likely the left turn signal, as well.

So, it is by no means certain that the cyclist could have understood that she was overtaking a turning vehicle.

But, as said, this case was an appeal, so within current law, this decision was correct.

In my opinion, this and the other case referred to, discussed viewtopic.php?f=7&t=112493 are why we should have presumed liability in the UK.

Presumed liability would increase the burden of proof toward the motorist in such cases.
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thirdcrank
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Re: You could be 30% liable if left-hooked by a lorry!

Post by thirdcrank »

Vorpal wrote: ... Presumed liability would increase the burden of proof toward the motorist in such cases.


Can you explain what extra evidence the driver should be expected to provide in this case? (Shifting the burden of proof implies to me that one party or the other has to provide more evidence.) I can see that in the time trial case that would require direct evidence that the rider had not been keeping a lookout (although several posters on that thread seemed to think that there should have been no reduction in the compo under any circumstances.)
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Re: You could be 30% liable if left-hooked by a lorry!

Post by Vorpal »

thirdcrank wrote:
Vorpal wrote: ... Presumed liability would increase the burden of proof toward the motorist in such cases.


Can you explain what extra evidence the driver should be expected to provide in this case? (Shifting the burden of proof implies to me that one party or the other has to provide more evidence.) I can see that in the time trial case that would require direct evidence that the rider had not been keeping a lookout (although several posters on that thread seemed to think that there should have been no reduction in the compo under any circumstances.)


As this case is an appeal, the outcome would not have been any different with presumed liability.

The original case, however, *may* have had a different outcome. It seems likely that the cyclist thought the lorry was moving into the right turn lane, instead of turning left, and it's not clear when it could have become apparent to her that the lorry was turning left. We do not have access to enough information to determine that. I think that the driver would have needed to establish that the cyclist was able to see the turn signal, or movement of the lorry to the left in enough time to prevent the crash. I suppose that that was established on the 'balance of probabilities' to attach as much as 30% liability to the cyclist.
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irc
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Re: You could be 30% liable if left-hooked by a lorry!

Post by irc »

Highway Code Rule 73.

Pay particular attention to long vehicles which need a lot of room to manoeuvre at corners. Be aware that drivers may not see you. They may have to move over to the right before turning left. Wait until they have completed the manoeuvre because the rear wheels come very close to the kerb while turning. Do not be tempted to ride in the space between them and the kerb.[/quote]

Rule 167

DO NOT overtake where you might come into conflict with other road users. For example approaching or at a road junction on either side of the road

The Highway Code states that failure to follow it (even advisory parts) can be used to attribute blame.

Although failure to comply with the other rules of the Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law) to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.


https://www.gov.uk/guidance/the-highway ... troduction
thirdcrank
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Re: You could be 30% liable if left-hooked by a lorry!

Post by thirdcrank »

Bearing in mind the interest triggered by the time trial contributory negligence thread, I think this thread is worthy of another look. To recap, the driver of an artic waiting at traffic lights had already moved to the right to prepare for a left turn and the rider was hit and seriously injured when she passed on the HGV's nearside.

It's another case where the judge heard calculations from expert witnesses called by both sides and preferred one to the other. One difference is that the rider's expert was preferred. The submission on behalf of the driver that this was "speculation" was rejected on appeal.

If there's anything to be taken from the case it's how much weight is given to the Highway Code whose advice was fundamental to the findings of the original judgment and upheld on appeal by three appeal court judges. A better thread title might have been "If you ignore the Highway Code, it may affect your compo." (FWIW, the original judge was a circuit judge, temporarily acting in a more senior role as a High Court judge.)

Here, in full are the rules relied on. Rule 211 sank the driver and Rules 72 and 73 (specifically addressed to cyclists) cost the rider 30% of her compo.

Rule 72
On the left. When approaching a junction on the left, watch out for vehicles turning in front of you, out of or into the side road. Just before you turn, check for undertaking cyclists or motorcyclists. Do not ride on the inside of vehicles signalling or slowing down to turn left.


Rule 73
Pay particular attention to long vehicles which need a lot of room to manoeuvre at corners. Be aware that drivers may not see you. They may have to move over to the right before turning left. Wait until they have completed the manoeuvre because the rear wheels come very close to the kerb while turning. Do not be tempted to ride in the space between them and the kerb.


Rule 211
It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.


I think it's worth noting that the driver's evidence was that he had checked his mirrors before he set off at the lights but not afterwards. Based on the expert evidence of speed etc., the judge found that he could not have checked his mirrors properly before setting off and accepted the driver's admission that he had not checked his mirrors after that as evidence of negligence, in spite of the submission that he had enough on his hands driving and looking ahead.

I wonder if the stereotype of careless cyclists (as compared with "professional" drivers) was raised because the following judicial comment was the basis for putting an extra duty of care on the driver:-

It was common knowledge that accidents involving undertaking cyclists and HGV vehicles were all too common ...


I fancy that a jury might have felt more sympathy for the driver.

The following comment from Lord Justice Treacy implies that the courts do take into account the difference in size of the parties. I appreciate that it won't satisfy some who posted on the other thread.

28 I consider that whilst the judge had found that both parties were at fault in the respects identified by the judge, it was appropriate for the him to take into account the causative potency of the HGV, given the likelihood of very serious injury to a cyclist in the event of a collision. Although Mr Herbert sought to discount this on the basis of the low speed of the HGV, I consider that the judge was entitled to find that it was potentially a very dangerous machine. Its size and bulk were such that in the event of collision it constituted a very serious danger to a person in the position of the claimant. I therefore see no basis for interfering with the judge's assessment, and, for the reasons given, would dismiss this aspect of the appeal.


Perhaps this judgment, approved on appeal, has caused some gnashing of teeth on lorry drivers forums.
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The utility cyclist
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Re: You could be 30% liable if left-hooked by a lorry!

Post by The utility cyclist »

There should be far more weighting on that presentation of danger and the death, serious injury and destruction it does cause due to the errors/recklessness of those in charge of such destructive machinery, even more so when it is so large/has such kinetic energy and is capable of killing multiple people in one fell swoop!
30% liable for thinking it was safe to go and of itself presenting virtually no harm to anyone. a small error to not reccognise that the vehicle was turning across that almost cost her her life.
Motorists however we know kill and maim with virtual impunity with their 'minor' errors, we are essentially putting a far higher burden on people on bikes and indeed on foot to keep out of the way of those presenting the massively greater harm and this is hugely disproportionate.

The apportioning of liability we have with respect to responsibility of those in charge of killing machines needs addressing and fast, this and the TT case it seems patently clear that failing to understand where the far greater responsbility lies, much much greater, has and will continue to punish the victims and those that were presenting little to zero harm in their actions either to themselves or others.
Yet due to a small error costs them their lives or a chunk of liability in compensation due to the actions of another that was presenting a massive harm, because it cost a life or did serious life changing damage.

Not understanding or accepting that fails to recognise what a fair and just society should be.
Pete Owens
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Re: You could be 30% liable if left-hooked by a lorry!

Post by Pete Owens »

Taken together I see both these cases as positive.

Both get away from the simplistic argument that once one person has made a mistake then they deserve everything coming to them and no one else has any responsibility. As vulnerable road users we have most to gain from the recognition that everyone has a duty to avoid crashes, whether or not they were responsible for the initial mistake. Remember, this is a mainstay of the Association of Bad Drivers case against speed limits - their argument is that in the vast majority of cases of pedestrian casualties the pedestrian is at fault for not looking (with the exception of pedestrian crossings priority is accorded to motors) it follows therefore (according to their logic) that the only way to improve safety is better training of pedestrians.

In both cases we see an initial mistake (in the case of the dual carriageway it was the van driver, in this case it was the cyclist), and in both cases the other road user is expected to take action to avoid a collision precipitated by someone else.

This ruling also explicitly recognises the greater duty of care required by the driver of the more dangerous vehicle - even though the cause of the crash was a cyclist overtaking a turning vehicle the consequences were mostly down to the weight of the truck. As with tho other case, imagine an example where a cyclist who has moved away from the kerb to take a tight left hand turn and is indicating left is mown down by a motorcyclist overtaking through the gap - I can't imagine anyone thinking that the motorcyclist would be anything other than 100% liable.
thirdcrank
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Re: You could be 30% liable if left-hooked by a lorry!

Post by thirdcrank »

Richard D wrote: ... So those yellow signs, warning us not to pass lorries on the inside, could now be amended to say "and if you do pass on the left, on your own head be it; the courts will hold you partly to blame". ....


I've read through the thread again and I've remembered this from the OP.

My objection to these signs, especially when they are provided by the employer, is that they give a message to the driver of the vehicle that the safety aspect is covered by this warning and they can ignore the possibility of a rider on their nearside. This judgment should disabuse them of that idea since the driver was held to be negligent specifically for inadequate use of their mirrors, even though there was a finding of contributory negligence.

I've often thought that a suitable warning inside the cab would be useful, but then we might have road warriors using it as a justification for dangerous undertaking.
pwa
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Re: You could be 30% liable if left-hooked by a lorry!

Post by pwa »

What happens out there on the roads is often complex, and apportioning blame in the vent of an accident can be far from simple. But as cyclists we must, for our own safety, never pass a vehicle on the left if it is indicating a left turn. I would also assume that a lorry straddling two lanes is planning a difficult left turn. I'd not move into that space on the left, whether in a car or cycling. I fully accept that a lorry driver should be alert to the possibility of people moving into that space, so I'm not absolving the driver of all responsibility. But putting yourself into that dangerous space is daft.
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Re: You could be 30% liable if left-hooked by a lorry!

Post by reohn2 »

pwa wrote:What happens out there on the roads is often complex, and apportioning blame in the vent of an accident can be far from simple. But as cyclists we must, for our own safety, never pass a vehicle on the left if it is indicating a left turn. I would also assume that a lorry straddling two lanes is planning a difficult left turn. I'd not move into that space on the left, whether in a car or cycling. I fully accept that a lorry driver should be alert to the possibility of people moving into that space, so I'm not absolving the driver of all responsibility. But putting yourself into that dangerous space is daft.


That's my take on it too.
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Re: You could be 30% liable if left-hooked by a lorry!

Post by mattsccm »

In the simplest of terms, which is all I can use without seeing all the details, I would suggest that to make any overtaking move once a vehicle is indicating is plain daft. I would have severe doubts about moving up the coloured strip to an advanced stop line if the vehicle at the front was turning left. Its stupid. If the vehicle is moving or may do so then why do such a thing? My argument with the lorry driver is that he shouldn't move right to turn left. Its tempting those who have no forethought to do something stupid. If your vehicle needs that then it should not be on that road. Go another way. If your actions hinder some one else's right of way you are wrong.
Note. Only commenting on the stupidity of overtaking on the left near lights.
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Tigerbiten
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Re: You could be 30% liable if left-hooked by a lorry!

Post by Tigerbiten »

mattsccm wrote:My argument with the lorry driver is that he shouldn't move right to turn left.

Have you ever driven anything big ??
Some times the only way to get around a tight junction without the backwheels going up onto the pavement is to either start or finish further out.
In this case he started further out so he wouldn't encroach into the opposite lane as he finished his turn without going over the pavement.
To keep the backwheels of large vehicles off pavements was the reason why corners had metal railings around them before it was decided they made a junction to dangerous for cyclists.
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