Wednesday, 24 June 2015

Another case on Contributory Negligence Sinclair v Joyner

In Sinclair v Joyner [2015] EWHC 1800 Mrs Justice Cox found for the claimant cyclist in her claim for damages against the driver of a '4x4' vehicle though with a reduction of 25% to reflect the cyclist's contributory negligence.

On Sunday 3rd July 2011 Mrs Sinclair was cycling along Broadwater Forest Lane, a single carriageway lane in Kent.  Coming in the opposite direction was a Volvo XC 90 motor car driven by Mrs Joyner.  The two vehicles made contact as a consequence of which Mrs Sinclair fell sustaining a serious head injury.

Liability was disputed (indeed it was even faintly disputed with unsatisfactory expert evidence) that a collision had even occurred.

The Judge had no difficulty finding that the Defendant driver was liable and should have stopped to allow the cyclist to pass in safety.  In words that support the view which I have frequently expressed that in England and Wales we have what approximates to a de facto presumption of liability when a motorised vehicle collides with a vulnerable road user the Judge said:

  1. In the section dealing with "Road users requiring extra care" the Highway Code (Revised 2007 edition) draws attention, at paragraph 204, to cyclists as among those who are to be regarded as "the most vulnerable road users." Mr Martin places particular reliance upon the advice given to motorists at paragraph 212, namely "When passing motorcyclists and cyclists, give them plenty of room." While there then follows a bracketed reference to earlier rules dealing with overtaking, as Mr Freeman observes, the advice in this paragraph is, in my judgment, not confined to cases of overtaking, set as it is in the section of the Code addressing in general terms the vulnerability of these categories of road users, and the need for extra care.

  2. This advice is particularly pertinent in this case. The Defendant's carriageway was just 2.5 metres wide and the width of the Volvo was 2.1 metres. Even if she were right over to her nearside, and I accept that she was very close to it, that leaves at best 0.4 of a metre between the car and the Claimant who was, on the evidence, riding her bicycle still on her own side of the road but only just. She was very close to the centre as the Volvo approached and then passed her. The Claimant cyclist's close proximity to the centre of the road was noted by the Defendant as soon as she saw her, and in my view, for the reasonable prudent driver in those circumstances, alarm bells would have sounded instantly.

  3. Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant's assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely.

Contributory Negligence

It was accepted on the Claimant's behalf that she should bear some responsibility for her injuries on the basis that 'she should not have been riding her bicycle in a central position in the road'.  Mrs Sinclair's injuries did not leave her able to recall or explain her riding leading up to the accident.  The matter was dealt with briefly and by concession (with the Judge accepting the Claimant's suggested 25% deduction).  It should not, in my view, be taken as any indication that cyclists should not ride in a central position on the road.  Indeed on the contrary they often should, though perhaps not at the point where a wide vehicle is actually passing on a country lane.

Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet.  the Judge said this:

  1. The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case.
As can be seen the Defendant had no confidence in the point although it was pleaded on her behalf.  Of interest is the Judge's comment that Mrs Sinclair 'was an adult enjoying a bicycle ride in the countryside on a sunny day'.  Since this is plainly irrelevant to causation, this is only worth mentioning in the context of fault strongly implying that Mrs Justice Cox is not convinced that a cyclist who chooses not to wear a helmet is at fault.

Regular readers of my blog will know that Mr Martin QC was not quite right in his observation that no Court has yet decided that failing to wear a helmet amounts to contributory negligence.  However Reynolds v Strutt & Parker was a wholly exceptional case for reasons I describe here

Overall an encouraging case though there are throw away comments regarding the oddity of riding central, standing on the pedals and 'proper clothing' for a cyclist that do leave a queasy suspicion that the sum of the knowledge in the Courtroom about cycling was less than it might have been and that Mrs Sinclair was in all probability a far more competent cyclist than she was given credit for.

The full Judgment can be read at http://www.bailii.org/ew/cases/EWHC/QB/2015/1800.html

Wednesday, 15 April 2015

Team Townend Challenge 2015

On Saturday I will be repeating the ride I have done for the past two years in memory of Christian and Niggy Townend, who were so tragically killed in December 2010 when a coach drove into them whilst they were out riding in the Lake District.
Since I last did this ride just one year ago I have been dismayed yet again at the number of occasions when appropriate charges have not been brought against those who have killed cyclists or, if brought, have not been successfully prosecuted.
Roadpeace is a brilliant charity founded by bereaved relatives which works hard for road crash victims and campaigns for justice.
I know money is tight and I have already urged many of you to donate to the Cyclist Defence Fund to right some of the more obvious wrongs.
However with the prospect of a new Parliament and some new MPs it is more than ever vital that we support the work of Roadpeace.  Politicians are, for the most part, human and will be moved by the approaches made to them on behalf of their bereaved constituents.
Just to ensure that I find the ride challenging enough to merit some support I will ride it twice, once in each direction and once for each of the two brothers we are remembering.
Putting my own money where my mouth is I shall match donations up to £300, so doubling the value of your contribution to Roadpeace.
My fundraising page is here

Thursday, 5 February 2015

Criminal Prosecutions arising from Road Traffic Collisions

Yesterday the 'watchdogs' for both the CPS and the Police produced a report following their joint inspection of the investigation and prosecution of fatal road traffic incidents.  I gave a short interview to the BBC about this report which can be seen here:



Having naturally read the report before talking about it, there is more I would have wished to say had time been available.

The report is of course welcome in that it pulls no punches in demanding a better standard of decision making and communication with families following fatal road traffic collisions.  Indeed I would add that a better standard is also required in non-fatal collisions and even in non collision incidents too, but it makes sense to start at the top.  If that cannot be got right there is little hope for other cases.

Having said that I found the report disappointing in a number of respects.  There appeared to be a degree of complacency about the drop in casualty rates without a recognition first that this drop is much lower for cyclists than it is is for other classes of road user and second that the number of people seriously injured is stubbornly high.  This suggests that the recorded improvements in fatalities are due far more to high quality NHS trauma teams and less to any improvement in driver behaviour.  Given the report's acceptance that the number of fatalities  of cyclists 'has attracted much media attention', it is very disappointing that limitations in data are said to have prevented investigating the way in which the deaths of cyclists are treated compared to other road users.  This is a great shame and I hope their recommendation about improving monitoring and analysis of data is followed and permits the public and charities, as well as watchdogs, to see what differences there are.  After all we are all given every encouragement by the State to cycle and protection from the agencies of the State seems the very least we should be entitled to expect in return.

There is, however, no evidence from the report that the Inspectors felt the status of the victim as a vulnerable road user to be relevant to the way in which investigations and prosecutions should be handled.

As it was, only 2 of the 72 cases investigated in this report involved cyclists.  More (21) involved pedestrians but the Inspectors were critical of overcharging (yes, overcharging) in 4 of those cases that involved running down a pedestrian at night because prosecutors and police 'imposed an unrealistic standard of driving on the suspects in these cases'.    I do not of course know the details of these cases but the fact that the Inspectors said that of all 4 cases involving pedestrians at night leaves me very uneasy about their approach to vulnerable road users.

Further the Inspectors criticised the CPS prosecutor who oversaw the fatal cases in his area (and so seems to have been the rare example of a specialist) for encouraging the police to submit to him all road traffic cases involving a fatality where there was a surviving third party.  As I said in my interview, it seems eminently sensible to have a specialist prosecutor look at cases that the police are inclined to dismiss with 'NFA', at the very least where the victim is a vulnerable road user.   The sad case of Michael Mason epitomises what can go wrong if this does not occur.  This criticised prosecutor was in my view exhibiting good practice which the Inspectors ought to have recommended be followed elsewhere.

So there is more condemnation of over than of undercharging in the report.  Which is odd since of the number of cases investigated (72) it appears from the tables that 60 cases resulted in charges of which (it seems) 49 were taken to trial and there were 44 convictions.  These figures are not remotely consistent with overcharging.  The DPP was being given a grilling on Radio 4 this morning over the decision to pursue a FGM case.  I pass no comment on the wisdom of that decision, but she was right to point out that the test for a prosecution is not the same as a test for a conviction.  However in traffic cases (alone) it seems that guilt must be as plain as a pike-staff before a prosecution is ventured.

Ultimately it is outcomes that matter and I fear this report has lost an opportunity to stiffen the resolve of the police and CPS to ensure that dangerous and careless drivers (particularly those that drive dangerously or carelessly in the vicinity of vulnerable road users) are made to account for their conduct.

Conversely I should add that performance is patchy by area.  I have encountered traffic officers and CPS prosecutors who really are committed to doing their utmost to make the roads safer for us.  I am not sure this report gives those delivering best practice sufficient encouragement.

Finally there is perhaps an irony that this report was produced on the same day that Transport for London approved the N-S and E-W Cycle Super Highways in London.  I urge that, great though that victory is, we do not let it detract from the importance of deterring bad driving.  We have a very long way to go before we can just not use the roads if we do not like the quality of driving encountered there.

Thursday, 11 December 2014

Inquest into death of Michael Mason

I do not normally comment upon cases in which I am involved but this one is exceptional and I shall confine myself to (relatively) neutral observation upon evidence given in a Court open to the public.

Mr Mason was run down from behind by a Nissan car as he rode his bike North up Regent Street, \north of \Oxford Circus and near its junction (on the other side of the road) with Little Portland Street.  The collision occurred at around 6.20 pm on 25th February.  Sadly Mr Mason died of his injuries on 14th March.

At the outset the Coroner (to his considerable credit) asked his officer to read out a moving tribute to Michael Mason written by his daughter Anna Tatton-Brown.  The tribute is set out here on Ross Lydall's blog

The Coroner then asked Mr Mason's daughter to give some evidence about his long experience riding bicycles.

Witness evidence and CCTV evidence was less than entirely clear but left no doubt that no witness aside from the Nissan driver failed to see Mr Mason on his bicycle.  The evidence was quite clear that he had the required lights including a brightly flashing rear light fixed above a red reflector which would reflect back light from car headlights.  The evidence was also clear that the area (as one might expect) was well lit by street lights.  The CCTV footage did not cover the immediate location of the collision.

The scene in daylight and in different traffic conditions is shown on google thus



The fatal collision occurred just south and west of the traffic island in the photograph.  you are looking North and you have to imagine the yellow line is not there.  The bus stop has apparently moved as it was further North alongside the pedestrian island at the time of the collision.

Although some witnesses queried and offered explanations as to why Mr Mason was riding towards the centre of the road, the police investigator had no difficulty in agreeing that Mr Mason had every right to be there for any number of reasons and there is no possible criticism of his position in the road.

The collision investigator also gave evidence that the physical evidence on the car and the bicycle made it clear that this was a 'linear' collision with the bicycle and the car pointing in the same direction at the moment of impact. This ruled out any swerving immediately before the collision.Further the rear tyre left a mark and dent mid way between the centre line of the car and its offside.  That is to say right in front of the position where the driver was seated.

The driver was commuting home in Hertfordshire from her work at a hairdresser's salon in central London.  She was driving a 'motability' car owned by a disabled friend.  She gave evidence consistent with her accounts to the police that she did not see Mr Mason or his bicycle at any time before the collision.  She was travelling at somewhere between 20 and 30 mph and did not brake before impact.  She carried on and parked 30 metres up the road before returning to the realisation she had hit a cyclist.  In answer to a question which she was warned that she need not answer she accepted that if the cyclist was there (which from the physical evidence he unquestionably was) she should have seen him.

The driver was asked questions about her eye-sight.  She passed the police's vision test (reading a numberplate) at the scene at night using her distance vision spectacles.  She kept about her person a further pair of spectacles for reading and was adamant that at the time of the collision she was wearing the distance vision spectacles used to demonstrate acceptable vision to the police.

A detective from the Serious Collisions Investigation Unit confirmed to the Coroner that there were no criminal proceedings taken against the driver and that decision had been taken by the Metropolitan Police without reference to the CPS.

The Coroner returned a finding of accidental death and declined an invitation to consider a Prevention of Future Death Report relating to a default 20 mph speed limit.  He observed that when the Met Police collision investigator was invited to consider whether a 20 mph speed limit would save lives he regarded such a notion as speculative.  He commented that Mr Mason had not been wearing hi-viz or a helmet but did not go so far as to suggest that either would have made any difference.  (Indeed he could not have suggested any causal relevance as there was absolutely no evidence of such).

I have only included reference to that which came out in Court and have not covered everything but this should be sufficient to give a reasonable impression of the evidence and the decisions taken.

Friday, 19 September 2014

Suspension of my twitter account

To let you all know my twitter account has been suspended at the request of @dragonducatis.
I have asked twitter to reinstate it.

Wednesday, 10 September 2014

When is a law not a law? When no-one troubles to bring it into force.

In July 2006, Kelly Woodward, died when the car in which she was travelling as a rear seat passenger was driven into a tree.  The driver, Andrew Burrell, was convicted of causing her death by dangerous driving and of driving over the alcohol limit.  He was sentenced so leniently that the Court of Appeal intervened imposing a 4 1/2 year prison sentence and a 5 year driving ban.
Kelly's family were nonetheless dismayed to discover that much of the ban would pass whilst Burrell was behind bars and they campaigned tirelessly for a change in the law so that a driving ban would start when an offender was released from any prison sentence imposed in respect of the same offence.  She handed in a petition to Downing Street (then occupied by Tony Blair) and enlisted the support of Jack Straw (then Lord Chancellor/Justice Secretary).
I understand that Kelly's family were invited to the House of Commons Gallery to watch the passage through Parliament of the Coroners and Justice Act 2009 which received royal assent on 12th November 2009.
Section 137 of that Act provides that Schedule 16 makes provision about the extension of disqualification from driving in certain circumstances.  Schedule 16 in turn amends The Road Traffic Offenders Act 1988 by introducing a new "s35A Extension of disqualification where custodial sentence also imposed" which in rather convoluted language provides for the period of disqualification to be increased by (broadly) half the prison term which I take to be the period of imprisonment that the offender could be anticipated to actually serve in prison.  (Quite why it does not provide more simply for the period of disqualification to commence on the day of release I do not know but I am not a parliamentary draughtsman, nor even a criminal lawyer).
HOWEVER section 182 of the same Act provides that certain sections come into force when the Act is passed; that certain other provisions come into force 2 months after the passing of the Act; that more other provisions come into force on 1st January 2010; that yet further provisions come into force on such day that the Lord Chancellor may by order appoint and the remaining provisions (including section 137 as it has not been specified elsewhere) come into force on such day as the Secretary of State may by order appoint.
A general election intervened in May 2010 when the Secretary of State had still not appointed a date bringing section 137 into force.
Incidentally the term 'the Secretary of State' under the Interpretation Act 1978 means any one of 'Her Majesty's Principal Secretaries of State' so in practical terms means the Government.
Now five years on, it seems fairly clear that the Government is not going to appoint a date for the coming into force of section 137.  This is not self-evidently a party political matter.  More likely it is simply a personality matter.  Jack Straw backed this law but his influence with government ended in May 2010 and he perhaps had other things on his mind in the dying weeks of the Brown administration.
It does though appear at best unfortunate that a change in the law, hard fought for by Kelly's family, has come to nothing for the want of a Secretary of State's signature on a commencement order.

Tuesday, 2 September 2014

Further Court Update: R v Robert Palmer

Facts

Yesterday, just days after the Wojcicki case, came the sentencing of Robert Palmer, a lorry driver who had earlier pleaded guilty to causing the deaths by dangerous driving of Andrew McMenigall and Toby Wallace, cyclists who were just 40 miles into their Lands End to John O'Groats ride in support of charity.  Palmer ran into them on the A30 near Newquay in Cornwall on 2nd July 2013.  Palmer was also sentenced for dangerous driving on a separate occasion when he was on bail for the fatal offences and drove into the back of another HGV.

There are similarities and differences with the Wojcicki case (which formed the subject of my last blog post).

Palmer had the advantage of representation from a barrister of some 40 years experience.  He (Palmer) realistically appreciated he had no Defence and pleaded Guilty to all 3 charges.  He did not seek to blame Mr McMenigall or Mr Wallace who were (like Owain James) completely blameless.  Palmer expressed, through his barrister, remorse at what he had done.

However the mitigation essentially ended there.  Palmer had a cynical disregard of road traffic law.  He was driving an HGV without the required rest periods and had only had 3 hours rest the previous night.  Furthermore he was such a prolific texter at the wheel that “The prosecution observes simply the absence of the phone activity in the period immediately up to the collision as an indication of his fatigue because prior to this collision his phone activity was very persistent.”  It is likely he fell asleep at the wheel.

The scene is similar.  This picture from Google earth appears to be fairly representative of the A30 road at the scene of the impact:
There is a rumble strip set around a metre or so from the grass on the nearside and an eye witness indicated that “the lorry had not moved out of the inside lane at all and stuck very close to the rumble strips."

Result

The sentence was 7 1/2 years on each fatal charge to be served concurrently and a further year on the non-fatal charge to be served consecutively.  Palmer was banned from driving for 10 years.

Once again the sentence is significantly greater, particularly the driving ban, than sentences we have seen in the past and once again the prosecution were not deflected from bringing the correct (dangerous driving) charge.

Observation 1: rumble strip

It occurred to me as I typed this that I am yet again describing a scene where impact occurred in the vicinity of a rumble strip.  I do wonder at the thought process that goes through a Highway designer's mind to the effect that inattentive dozy drivers require assistance to remain on the road and that a rumble strip is sufficient to deal with that hazard.  Plainly it is not if a cyclist is present.

Observation 2: prevention

With such a spectacular disdain for the law it seems a very great tragedy that Palmer's repeated offending was not caught and dealt with before he ended the lives of two good and blameless people.

Observation 3: driving bans

Prompted by a tweet, I have discovered to my surprise that the provision in the Coroners and Justice Act 2009 providing that a driving ban starts to take effect on release from any prison sentence (rather than on the day of sentence) has still not been brought into force.  I will look further into that when I return from holiday and draw it to the attention to the All Party Parliamentary Group on Road Justice.  That provision would and should have applied to both Wojcicki and Palmer.

Families' Statement

Finally I think the dignified statement of both families issued yesterday merits repetition and dissemination:


“There are no words to describe the devastation and loss that we, and both families, feel following the deaths of our husbands. They were exceptional and giant men in every sense of the word,” they said.

“It is a tragedy that so many other families are also mourning loved ones who have been killed on Britain’s roads, particularly when many of these deaths were completely avoidable.

“So many of these families do not ever see a sentence brought against the person who has killed their husband, their child, their brother, their father.

“UK transport laws are lenient, charges are difficult and onerous to attain, and less and less resource is being dedicated to road traffic collisions.

“Toby and Andrew loved cycling. We believe that the rise in the popularity of the sport must be met by those with the responsibility to improve our transport infrastructure and improve education for drivers.

“We would like to thank everyone who has supported us and been involved in getting us this far.”



Read more: http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#ixzz3CA3Ytksr
Read more at http://www.westerndailypress.co.uk/Lorry-driver-Robert-Palmer-jailed-killing/story-22859295-detail/story.html#Rr2VuvWsyijcO0B0.99