Cycling UK Forum

SA_SA_SA wrote:

Phil Fouracre wrote: ... it really is the drivers/cyclists responsibility to look where they are going. ...

Replying, thirdcrank wrote:This is the rationale for reducing payouts because of contributory negligence. AFAIK, the typical reduction in pothole injury cases seems to be 50%. I suppose each case will be decided on its merits. The highway authority here will be in the bizarre position of having its own experts testifying that the defect was almost invisible to the naked eye when they inspected it.

But the road is grey, potholes are grey and flush with the road surface...
I thought at normal speeds drivers/riders are vulnerable to poor surfaces (harder to see at distance than the normal things they have to see at comparable distance such as ordinary pedestrians etc: hence the partial liability of the highway authority?

Also, potholes often hide under puddles.

Ian

I'm playing Devil's advocate a bit here but . . .

This cyclist was killed by a moving car not by a pothole.

I am sure the motorist is distraught (I actually have every sympathy with him) but he was just following the norm and overtaking too fast and too close - what I experienced from every driver on my ride last Sunday.

There are lots of reasons to be cautious when overtaking a cylist. One simple one (which I noted on Sunday) is that although a cyclist may look round before making a manoeuvre, a fast car could arrive from outside his line of sight within a couple of seconds. As he undertakes the manoeuvre he is unexpectedly (for both parties) in the track of the car. In this case it was an involuntary manoeuvre but there are lots of other possibilities. To forgive the driver for being no different from any other and genuinely contrite (and otherwise careful and considerate) I can accept. For the coroner (and us on here) not to look at factors other than the pothole, I cannot.

On the subject of contributory negligence in connection with pothole claims, it's a fact that payouts are often reduced on these grounds. The subject has been discussed on the Cycling Silk blog.

http://thecyclingsilk.blogspot.co.uk/20 ... -case.html

This link includes discussion of two successful pothole compo claims, both substantially reduced for contributory negligence. WILKINSON v CITY OF YORK COUNCIL on p1 and THOMAS v WARWICKSHIRE COUNTY COUNCIL on p3. (This is the case which prompted Martin Porter's blog item.)

http://www.gallagherbassett.co.uk/sites ... 202011.pdf

In this more recent case, there was no reduction on those grounds, although I suppose there's always the possibility of an appeal, or two.

viewtopic.php?p=765742#p765742

Re the Coroner, I've linked to the legislation higher up: the verdict of a Corner's Court can't blame anybody for anything. (My wording.)

thirdcrank wrote:
Re the Coroner, I've linked to the legislation higher up: the verdict of a Corner's Court can't blame anybody for anything. (My wording.)

No, but they could look at other factors and perhaps make recommendations - I thought that is what coroners did.

Here are the relevant bits of the legislation, edited for clarity:-

This is what the Coroner is supposed to ascertain by investigation

Coroners and Justice Act 2009
5 Matters to be ascertained
(1) The purpose of an investigation under this Part into a person's death is to ascertain—
...
(b) how, when and where the deceased came by his or her death; ...

If there's an inquest (an inquest with a jury is mandatory if a death appears to have been caused by a road accident) its findings are subject to this restriction.

10 Determinations and findings to be made
....
(2)A determination ... may not be framed in such a way as to appear to determine any question of—
(a)criminal liability on the part of a named person, or
(b)civil liability.
......

http://www.legislation.gov.uk/ukpga/2009/25/contents

=================================================
Edit to add: Report here from the Daily Mail. Interesting to see how the deceased is portrayed by a paper not renowned for its support of cycling. The report concludes with this about the dangers of potholes:

... the Cycling (sic Touring Club, said: ‘They can cause injury and in some cases such as this, death.’

http://www.dailymail.co.uk/news/article ... z2x5mHlDVM

thirdcrank wrote:how, when and where the deceased came by his or her death; ...

Well, he got hit by a car, not by a pothole. So the coroner got it wrong. Cyclists fall off their bikes for lots of reasons. Good thing it wasn't a twig because the twig would be in court charged with killing a cyclist and a twig would look ridiculous in the witness box.

Even the worst case of hitting a pothole I have read about (Mick F's on here) didn't AFAIK result in his death .


Just to add:

This bit from the Daily Mail makes no sense:

Martyn Uzzell died instantly when he hit the 4in deep pothole on a main road and was thrown into the path of a car.

Was he killed instantly when he hit the pothole or was he killed when he was thrown into the path of the car?

Here's a CTC view, including this:

Pothole deaths are not uncommon - there have been a handful of these in recent years, including the case of Captain Jon Allen, who was hit by a lorry after encountering a pothole near Wiltshire in 2010.

http://www.ctc.org.uk/news/cyclist-kill ... ys-coroner

My understanding of he case was that because the council had been informed of the pothole and that they have a statutory duty to repair such; then a certain amount of the blame could be attributed to them because it remained unrepaired so long. Obviously doesn't get any smaller either.
IMHO that would be correct. A certain amount of time to effect a repair once informed.

In hopefully plain English, if somebody has a duty of care towards you, you can claim compo for negligence if they don't carry it out. The duty of care here is created by s 41 of the Highways Act 1980 Duty to maintain highways maintainable at public expense.

http://www.legislation.gov.uk/ukpga/1980/66/section/41

Sec 58 of the same act provides the escape hatch in Special defence in action against a highway authority for damages for non-repair of highway.

http://www.legislation.gov.uk/ukpga/1980/66/section/58

Anecdotal evidence suggests that when claims are made in respect of potholes and the like, highway authorities routinely quote this defence to deny liability no matter what the circumstances. In the cases I've linked to above, the decision eventually went against the highway authorities concerned, although in both those in the Gallagher Bassett link, the amount awarded was substantially reduced for contributory negligence ie cyclist not looking where they were going.

Links in previous threads suggest that some highway authorities end up shelling out more in compo than they spend on repairs.

thirdcrank wrote:Sec 58 of the same act provides the escape hatch in Special defence in action against a highway authority for damages for non-repair of highway.

http://www.legislation.gov.uk/ukpga/1980/66/section/58

From that "In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic" (my bold & underline).

There might be a counter argument where the hazard then caused an accident/damage where the accident/damage shows they ad not "secured" the hazard in a state that was "not dangerous for traffic". The accident/damage proves their failure to comply with the "escape hatch".

Ian

thirdcrank wrote:the amount awarded was substantially reduced for contributory negligence ie cyclist not looking where they were going.

Which of course is itself quite extraordinary because few cyclists are on their way down potholes - we leave that to the caving fraternity.

In fact, during the close passing of a car, few cyclists would be looking in their direction of travel: the cyclist will be looking carefully at the car and will obviously be distracted from his/her direction of travel. The road surface and any potholes would be third on the observation list. Hence the admonition to drivers: do not pass cyclists too closely.

So, Mr Coroner, how closely did the driver pass the cyclist in this case? Do we know? Has it been reported? Was it witnessed? Has the driver volunteered this information? Why isn't it reported? Was it in line with the recommendations of the Highway Code? Is there something here that the coroner could recommend?

Or shall we just blame the pothole?

When somebody dies in circumstances when an inquest is required by law, the coroner will normally open the inquest to allow the completion of as much of the process as possible. If there are police or other investigations to be made and the possibility of a prosecution as a result of those investigations, the coroner must adjourn the inquest until all that is dealt with. If the decision is that there will be no prosecution, or after prosecutions have been completed, the inquest will normally be resumed. The coroner can recommend changes to the law or procedures in an attempt to prevent recurrences, but a coroner can't rule that somebody should have been prosecuted. There is already plenty of legislation and advice in the HC on the general subjects of taking care when following other vehicles, overtaking etc and the specific subject of overtaking cyclists so there's arguably no omission in the law or HC the coroner might have rectified. The possibility that a driver may have ignored all that is the purview of the police and CPS, not the coroner, who had any remaining right to deal with it removed in the legislation I linked.

thirdcrank wrote: The coroner can recommend changes to the law or procedures in an attempt to prevent recurrences, but a coroner can't rule that somebody should have been prosecuted.

I'm not suggesting either that the driver should be prosecuted by the way or that the coroner can facilitate that. I'm trying to shift the focus away from the pothole and on to the relationship between the car and cyclist. If the cyclist had hit the pothole and there had been no cars about but had died (or been seriously injured for that matter) then everything that has been discussed would apply - it would be a dispute as to whether the council or the cyclist was at fault, the one for not repairing, the other for not looking. What isn't clear from the reports is how the cyclist died: was he killed as a result of his fall or as a result of the car hitting him once he had fallen? If the latter, my case would be that the focus should be on the driver, not because I have it in for the poor man but because cyclists can fall for any number of reasons (had a dog ran out and he swerved it would be the same). In this event the coroner should say something about drivers not councils.

I've read and reread the report of the proceedings in my first link and while it's not a verbatim record of the entire proceedings and it includes third party reports eg a comment from the deceased's widow , I can't see any other interpretation of what happened than that the rider was brought down by the hole in the road and killed when he was run over by the motor vehicle. (I suspect, although that's hardly decisive, that if the impact of the fall had been so severe that it was the only cause of death, then that would have been prominent in the reported evidence.)

Looking back to the start of this thread, you took exception to my use of the expression "pothole-related" in my title although with the limited number of characters available in a title, I fancy your alternative might not have fitted, but I'm OK with my choice of words as a title for the thread.

horizon wrote: What isn't clear from the reports is how the cyclist died: was he killed as a result of his fall or as a result of the car hitting him once he had fallen? If the latter, my case would be that the focus should be on the driver, not because I have it in for the poor man but because cyclists can fall for any number of reasons (had a dog ran out and he swerved it would be the same). In this event the coroner should say something about drivers not councils.

Would you still say the same thing, if the cyclist had been thrown 4 metres, directly into the path of an oncoming car, and there was nothing that even the most conscientious of drivers could have done?