29 March 2012


Circumstances in which cyclists are injured and which may give rise to a claim for compensation include:
  • Road traffic accidents where a cyclists is hit by another vehicle or road user.
  • “Dooring” accidents: where a car door is opened as a cyclist passes by
  • Riding over potholes on the highway
  • Colliding with a stationary object on the road, such as a railway sleeper or roadworks.
  • Unknowingly riding a defective bike, such as a pedal snapping off without warning.
We look at each type of accident in turn.

1. Road traffic accidents
When judges are deciding court claims between cyclists and motorists they will weigh up the conduct of both parties. If one of them falls below the standard of conduct required in the particular situation they find themselves in on the highway, they are likely to be held liable either wholly or in part for the accident.

As Judge Tugendhat stated in the recent case of Smith v Kempson (21/10/11): “ The burden of proof is the balance of probabilities and…if I conclude that the chances are 51% that the accident occurred as a result of falling below the standard of a reasonable driver by the defendant, that is sufficient to prove the case”.

There is therefore a duty on the part of all road users to take care of the safety of others as well to take care of their own safety: falling below a reasonable standard of care can lead to a claim if someone suffers injury, and can also result in compensation being reduced if you are found partly to blame for the accident.

The Highway Code identifies cyclists to be amongst the most vulnerable road users. Motorists are required by the Code to take particular care when driving near cyclists. For example, drivers must take special care to look out for cyclists when coming out of junctions, and when passing must give cyclists plenty of room, anticipating that they may have to avoid uneven road surfaces and drain covers.

On the other hand, the Code sets rules and recommendations that cyclists should follow, such as:
  • Use front and rear lights at night, and have amber pedal reflectors fitted ( if the bike was manufactured after 1/10/85)
  • Use light coloured or fluorescent clothing in the day and reflective clothing and/or accessories in the dark
  • Obey all traffic signs and traffic light signals
  • Keep both hands on the handle bars except when signalling or changing gear (so no use of mobile phones! although it’s not a criminal offence for cyclists as it is for motorists)
  • Keep both feet on the pedals
  • Do not ride too close behind another vehicle
  • Do not carry anything which affects your balance or may get tangled up with your wheels or chains
The full list of rules for cyclists is online here. In a traffic accident if you are found to have failed to comply with the rules or not followed the recommended advice for cyclists, a motorist may use that as evidence to defeat a claim or to allege contributory fault.

Left turning traffic – tragic consequences

Special mention must be made about cyclists injured and killed at left junctions often resulting from long vehicles turning and crushing cyclists on their inside. Rules 72 and 73 state:

72. 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.

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.”

In Hackney we have seen tragic fatalities at Dalston Junction and on Middleton Road in the last few years: now marked by ghost bike memorials. The Times newspaper has launched a Cities Fit for Cycling Campaign to amongst other things improve the design of junctions and reduce road risks for cyclists.

Examples of circumstances that can give rise to a cyclist claiming

If as a cyclist you are in a traffic accident and having dealt with your immediate medical needs, the first question will be to identify who was at fault and why. Typical scenarios include:-
  • Motorists driving too fast- were they exceeding the speed limit?
  • Motorists driving too close behind you or while overtaking
  • Motorists cutting in front of you so that you have no time to stop safely ( there does not have to be an actual collision- if you go over your handle bars because you had to do an emergency stop the other party is probably liable).
  • Motorists not seeing you on the road ( if you were not wearing bright clothing or did have lights the motorist will say the accident was your fault wholly or in part).
  • Motorists turning off the road without signalling
In later posts we deal with what happens next if you think you have a claim.

2. “Dooring” accidents

If you cycle in London you will know without being told that one of the most common risks is the driver or passenger of a stationary vehicle parked on your left hand side opening a door as you pass and knocking you off.

The Court of Appeal considered to what extent a cyclist may be held in part to blame for a dooring accident in John Burridge v Airwork [2004] and found cyclists should foresee that the doors of parked vehicles may open as they are passing, and that they had a duty to take care of their own safety.

Moving away from the parked vehicle might avoid the risk of dooring but that risk must be balanced against the risk of putting the cyclist in further danger from other moving traffic on the road. It all depends on the facts but generally the driver or passenger who opens the door will always be liable and the cyclist at worst may be held partly responsible.

3. Riding over potholes on the highway

Every cyclist at some point will hit a pothole on the road. If cycling on the public highway, your local authority has a statutory responsibility to maintain and repair the road such that it is fit and safe for ordinary traffic.

The starting point will be to decide whether the pothole or some other defect on the road is a probable danger to cyclists. There are no rules about what size pothole qualifies but a court will have to be convinced that it was dangerous enough to cause an accident and injury in the circumstances: for example, gaps around a drain cover will be a real danger to cyclists but not to a motorist.

Local authorities can defeat pothole claims if they can convince the court that they had taken reasonable care to ensure the highway was not dangerous for traffic. Therefore, the evidence that a council can provide about its inspections, repairs and maintenance programme will often be critical to the outcome of a claim.

Compensation will often be reduced if the court find that the cyclists wasn’t paying enough attention to the road ahead – ironically, the larger the hole the more likely that a council can run this argument- or if the pothole was on a familiar route or near the cyclist’s home. Again, all road users are expected to take reasonable care of their own safety.

Cycle lanes and routes

Most cycle routes will fall under the Highways Act 1980 and therefore be the responsibility of local councils. Such routes are often poorly maintained and appear to have a low priority for repair. Councils may assume that cycle traffic is light and that surfaces survive longer before falling into disrepair. If you see a dangerous pothole report it to your council. There will be a telephone log of the complaint which should trigger action and may save another cyclist from injury.

Rights of Way – no claim!

Cycle paths that follow a right of way may not be the responsibility of a local authority and it may be that you will not have a claim at all.

The courts have held that the occupier of land over which a right of way crosses does not usually have a legal duty to maintain the pathway in good repair. You therefore may not have a claim at all no matter how big and dangerous the pothole when using a right of way over private land!

4. Colliding with a stationary object on the road

What happens if a driver leaves a vehicle where he ordinarily shouldn’t or a construction company fail to clear away barriers after finishing roadworks? Will they be liable if you crash into the stationary object? It all depends on the facts, including the manner in which you were cycling.

In Foster v Maguire [9.2.2001] the Court of Appeal were split. The defendant parked a van and trailer on a clearly marked cycle lane. He set out a traffic beacon and had hazard lights flashing. The cyclist had her head down with visibility of the road ahead of 5-10 meters. Her evidence was that she looked up at 300 meters and 185 meters but did not see the van. She suffered severe spinal injuries in the collision. 2 judges held that the van driver was careless for the safety of cyclists and could have parked elsewhere. Further, the Highway Code required that he should not obstruct a cycle lane if it was not necessary for him to do so. The third judge took the view that the cyclists should have looked ahead to see the van and that it was not foreseeable that she would be so careless about her own safety. By a majority, the van driver was held 30% to blame for the accident on the grounds that he exposed the cyclist to risk of serious injury.

5. Riding a defective bike

A defective bike component that suddenly fails or fractures without warning can be catastrophic for the rider, particularly if you are going fast, downhill or cycling in heavy traffic.

The Consumer Protection Act 1987 ( CPA 1987) imposes strict liability on the producer of the bike when the equipment fails regardless of whether they knew about the defect or ought to have known about it. The cyclist must prove that the bike was defective and that defect caused is to fail: you do not however have to prove the precise mechanism of the failure but rather that on the balance of probabilities there was such a failure. The cyclist also must show that the equipment failure and the accident are linked, that the accident could not have happened but for the defect.

Evidence in such accidents often will be crucial to a successful claim. Where liability is contested, engineering experts will normally have to provide reports on the bike to demonstrate that there was a defective component which probably caused the accident. Therefore, the bike should be kept safely stored together with any fractured parts, manufacturer manuals and purchase receipts retained , photographs taken of the scene of accident, and statements taken from any eye witnesses.

If the bike was produced aboard, as is very likely these days, the CPA 1987 enables the cyclist to sue the UK or European Union importer. If the retailer will not disclose the name of the wholesale importer or producer, then they can be sued as an alternative.

In Ide v ATB Sales Ltd [17.07.2007] the claimant suffered a serious brain injury when riding his Marin mountain bike along the South Downs Way. He was found unconscious lying on his right side and with the bike over his legs. The left handle bar had snapped off. The bike was made in Taiwan on behalf of a US corporation. The importer was the defendant. Four experts gave evidence about the likelihood of the handlebars being defective. The defendant alleged that the accident occurred when Mr Ide lost his balance and went over the front of the handlebars. The left handlebar they argued snapped off when he was thrown forward and that his body applied a load to the handlebar which was not expected from its normal usage, and that it was not defective. The court however was persuaded by the evidence of a university metallurgist that the most likely cause of the fractured handlebar was cracking or fatigue even though photographs did not find such evidence. It was enough for the judge to find that “the handlebar had snapped in a classic fast–fracture fatigue failure” and that in the absence of another credible explanation the bike was defective and strict liability applied. Given that Mr Ide was an experienced rider, was not on a particularly dangerous cycle track, and was found with the bike over him, the Defendant’ s version of events was rejected.

20 March 2012

Dalston solicitors Dowse & Co. launch specialist Cycle Accident Service

Launching Dowse and Co.'s specialist Cycle Accident Service, Patrick Spence, Head of the firm's Personal Injury Department said "Too many cyclists are suffering injury and cycle damage but are being given the 'brush off' by drivers' insurers and highway authorities. We are launching our specialist service for cyclists to address that imbalance and ensure that they receive proper compensation."

Patrick Spence and Myles Hickey, a former Managing Partner of Dowse & Co., are both accredited as Personal Injury claims specialist by the Law Society and members of the Association of Personal Injury Lawyers, of which Myles Hickey is a Fellow and one of the Editors of Kemp and Kemp. Dowse and Co has conducted road traffic accident clams to a value exceeding £1 million. 

With the demise of Legal Aid, Dowse & Co are finding imaginative ways of supporting people of modest means to bring their claims to a successful conclusion using No Win No Fee agreements whereby the accident victim receives 100% of their compensation.