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!
I
24 May 2012
17 May 2012
Traffic accident (but no collision) - cyclist recovers £10,000.00
If the driver caused your fall he is liable. |
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).
10 May 2012
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.
3 May 2012
Cyclist Jumps a Red Light- Where Does Liability Reside?
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.
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