NUDGE OUT AT YOUR PERIL!

This week we took instructions from a cyclist knocked over by a driver emerging from a side street. The claim ought to succeed and Rule 211 of the Highway Code states:

"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."

In most cases  therefore it will be difficult for a driver to escape responsibility  where claiming their view was blocked by parked cars,  or the like.

If you're driving a ton of metal you need to be aware of vulnerable roadusers and don't "nudge out" unless you are sure the road is clear: sometimes of course that is impossible! In Smith v Kempson (2011) the driver had her view obscured and no one could say what she could have done but the appeal judge held the trial judge was entitled to find the driver had "acted in breach of the standard of care, even if the judge was unable to say, or had not said, precisely what action or omission constituted the fault". Life can be unfair!

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Traffic accident (but no collision) - cyclist recovers £10,000.00

If the driver caused your fall he is liable.

A car pulled out of the petrol station straight into the path of Rory’s push bike.  In performing an emergency brake, Rory went over his handlebars and as he attempted to break his fall on the road,  he suffered undisplaced fractures of both wrists and damage to one front tooth which developed crazing of the enamel. He also suffered a permanent cosmetic scar on his calf.

Ironically,  Rory’s quick reactions saved the car from sustaining any impact damage.  This was repaid by the car driver pointing out to passers by,  who had stopped to help,  that his car was unmarked and that Rory must have just fallen off the bike through his own fault (cyclists do these things,  you know!).

Although the garage had no CCTV cameras facing the road, (we went along to investigate),  a helpful motorist who had given his details to Rory,  provided a very clear witness statement** which put the blame squarely on the driver,  whose insurers took a more sensible attitude than he had.   They did not dispute liability and Rory recovered £10,000 for his injuries,  including his out-of-pocket losses and the cost of a new porcelain veneer for his tooth.  (There was no loss of income).  Insurers also paid his legal costs in full.  (Our client’s name has been changed).

**Guidance: If you are ever in a road traffic accident always try to get the name and address of any witnesses, or ask some else to do so if you are not able because of your injuries.

Disruption to foot ligaments - but insurer's computer says “no!”

Denise,  riding her Vespa 125, ran into the side of a taxi whose driver had executed a u-turn into her path.   She and her scooter were propelled across the road.  As to be expected, she suffered extensive “soft tissue” bruising to her body, and some whiplash,  but also a crush and torsional injury to the middle of her foot.  The diagnosis was that she had disruption of ligaments in her forefoot and extensive bone bruising.  This persisted so that wearing high heels remains uncomfortable.   As Denise is the Facilities Manager of a fashion chain,  and high heels are required at least for meetings, this proved a problem.

The taxi driver’s insurers admitted liability straight away and in fact made an early payment to her in respect of her scooter.  However,  we could not get them to budge from what we thought was an undervaluation of this problematic soft tissue injury. 

Some insurers see “soft tissue injury” as equivalent to temporary bruising,  whereas many injuries to ligaments and tendons can be more troublesome than a fracture. Motor Insurers use a computer programme to value claims – a “one size fits all” programme. Their claims handlers are not permitted to depart from the figure the computer tells them to pay. This is invariably too low. The insurers, having made the usual low initial offers, would not be persuaded to improve their best offer from £9,000.00 so proceedings were taken.  The solicitors instructed by the insurers quickly saw sense and an overall settlement was agreed for £13,750.00,  with costs being paid in full in addition.

Insurers computers undervalue  accident claims

Denise was happy with the outcome.

Under Government proposals which will take effect later this year,  or early next, lawyers acting for people like Denise are expected to undertake her claim for much  reduced costs on the ground that the  victim’s legal costs of pursuing claims has driven up the cost of insurance premiums for car drivers.  Denise’s case was a good example of why the legal costs paid by the other driver’s insurers often exceed what they could get away with if they  made a more skilful assessment of the case at the outset. Denise’s case was not extreme. Many cases are contested all the way, in the hope that the victim will lose heart – as unrepresented claimants often do. 

Motor insurers say that if the victim goes straight to them rather than to her own lawyers, they will “see her right”. But if Denise had done so, she would likely have walked away at best with  2/3 of what we recovered for her.

Cyclist Jumps a Red Light- Where Does Liability Reside?

The taxi was speeding but cyclist took enormous risk

A Claimant cyclist collided with a Defendant taxi driver in a T-junction, resulting in severe injuries for the cyclist.  The cyclist had run a red light prior to the collision and had failed to apply his brakes although there had been sufficient time to avoid a crash.  The cyclist took an enormous risk it appears.

The taxi driver claimed that the cyclist had been wearing dark and unreflective clothing and had kept his head down, not keeping a proper lookout.  The taxi driver himself had applied the brakes as soon as he spotted the cyclist, but it was agreed by both parties that the taxi had been travelling at 41 to 50 mph through the 30 mph zone, well in excess of the limit and a collision was unavoidable  

The Court held the three causative factors of the accident were the taxi driver’s speeding, the cyclist’s failure to stop at the red light, and the cyclist’s failure to apply the brakes and avoid a collision.  The High Court in Malasi v Attmed [ reported 05.12.2011] placed fault heavily with the cyclist.  The cyclist was found liable for 80% of the accident.  Was this the right call?  There are  arguments for both sides. 

Arguments for Cyclist

·         It’s difficult to travel the streets of London these days without witnessing the flocks of cyclists.  Cyclists are now major users on our urban roads, and drivers should take greater notice of them.  The running of red lights by cyclists is now a very common sight, so can  the red light argument run too heavily against the cyclist? ( The 80% finding against Mr Malasi  may  not assist in making drivers more  vigilant and aware of cyclists  when approaching junctions). 

·         The taxi’s speed was a major contributor to the accident.  The Judge described  the taxi driver’s speed as “gloriously over the speed limit”.  In a 30 mph zone, a speed of 41 to 50 mph is very hazardous and aggravated when approaching a junction at such speeed.  If the taxi had not been speeding, the collision would never have happened.  

·         There is no legal requirement to wear hi-visibility clothing while cycling although it is recommended.  In this case,  the Judge ruled that the cyclist’s clothing was immaterial, as the taxi driver had a “good perception-response time.”    

The Highway Code recognizes cyclists are very vulnerable on the road and the burden must be on drivers to take special care in a road environment when they can expect to encounter the cyclist at any time.

 Arguments for Taxi Driver

·         The cyclist’s disregard for the red light was the most significant contributor to the collision.  The fact that jumping the light is common practice might seem a poor excuse.  It was the cyclist’s responsibility to wait and check for oncoming traffic.  Cyclists should realize that cars are dangerous and take sensible precautions for their own safety. If you jump a light you are taking a risk and objectively can expect limited sympathy if an accident happens: clearly the stance of the Court in this case.

To determine liability in this case where both parties were negligent, the court took causative potency and blameworthiness into account.  A car can obviously cause more damage and injury than a bicycle; therefore, the taxi driver must take the greatest care to not endanger other road users.  However, due to the disregard of the red light and failure to break, the cyclist’s blameworthiness was nevertheless always likely to be overwhelming as was reflected in the court’s final ruling. 

Author: Eric Fingar- Dowse & Co.