Legal Update Autumn 2010

The Court of Appeal in Smith v Hammond [2010] EWCA Civ 725 has reversed a trial Judge’s finding that the driver of a DAF lorry, Mr Hammond, had been partly to blame for the severe injuries sustained by a 13 year old cyclist, Joshua Smith, on a newspaper round. The evidence of Mr Hammond, accepted by the trial Judge, was that he had been travelling at the 30 mph speed limit when the cyclist attempted to cross the road from one driveway to the opposite side straight in front of him.


The road was a residential street in Tean depicted here (outside number 77 which I believe to be in this general area):

Mr Hammond had seen Joshua at the side of the road looking in the opposite direction. The trial Judge had found that Mr Hammond ought to have sounded his horn to alert Joshua to his presence.

The Court of Appeal overturned that decision on the basis that the HGV drier could not reasonably have been expected to sound his horn until Joshua was on the move out into the road and by then it would have been too late anyway.

On the law, as it is, one can see how that decision is arrived at. Sounding a horn every time somebody might do something unwise, could lead to a cacophony of noise in residential areas.

I have though two observations. First, speed. It is in my view high time that the speed limit in residential areas where children on bicycles and on foot can be readily anticipated, is reduced to 20 mph. There has been talk of this for years but political foot-dragging because it may be perceived as a ‘war on the motorist’. In this case the HGV was travelling at around 30 mph. Although Mr Hammond says say he ‘eased off the accelerator’ there is no suggestion that this reduced the speed before the cyclist came into his path other than marginally. At 20 mph there would have been more time to sound the horn, to brake and to swerve and if a collision had taken place the consequences would have been far less devastating. I once tried to persuade the Court of Appeal that in certain circumstances travelling at 30mph in a 30mph zone was itself negligent. I got nowhere. This is not for the Judges; this is for Parliament to fix.

Second observation is that in most of Europe the cyclist would have succeeded in his claim against the HGV driver despite the driver being held not to be at fault. This is, in my view, justifiable here on the premise that HGVs are large dangerous vehicles which should only be permitted onto the roads o terms that they pay for the damage occasioned by their presence. However I hold a minority view on this and although widespread in the European Union and apparently recommended by the soon to be abolished quango, Cycling England; the motoring public here would not stand for it and it is manifestly not something the Judges can alter.

Mr Hammond had his own claim against the cyclist for causing him a post traumatic stress disorder. The trial Judge had rejected this claim saying that Joshua could not reasonably have foreseen that his actions would have led to injury to Mr Hammond. The Court of Appeal reversed this also, saying it was sufficient if he should have foreseen injury to another road user, such as another cyclist. This aspect was dealt with briefly and could have merited greater analysis. Mr Hammond was surely outside the zone of the risk of physical injury; had a driver coming the other way seen what occurred and suffered PTSD he would not be able to recover. The only valid distinction is that Mr Hammond would foreseeably consider himself an instrument of the accident. The Court of Appeal was pleased to note that Joshua’s employer the Co-Op had agreed to pay the damages to Mr Hammond (rather than the bill falling on Joshua personally).

Other news this quarter relates to the adequacy of investigation into fatal cases. A seminar on this topic was organised by RoadPeace last month Improving the Post Crash Response. Unfortunately prior commitments kept me away from this. I would have liked to have been there because I take the view that improvements are required. This is highlighted by the case of London cyclist, Eilidh Cairns. I have written about her inquest already in an earlier legal update. This week the driver of the HGV that crushed Eilidh was fined £200 for driving an HGV with defective vision. His vision was only ever tested some time after the accident at the insistence of Eilidh’s family, who could not understand how he had not seen her prior to the fatal collision in Notting Hill in February 2009.

As a lawyer I find it easier to understand, than others may, that the Court had to sentence on the basis of the charge made and could not assume that the collision was caused by the defective vision (for had it been, the charge should have been a far more serious one). Nonetheless driving an HGV around crowded streets in London with defective vision may be thought to be a serious matter.  The driver seems on any objective view to have got off lightly, following a very late plea of guilty, with a £200 fine, £150 costs and a £15 surcharge. He got the three penalty points but no disqualification. It is a striking feature of our society that outside the world of motoring, the Health and Safety requirements which relate to, for instance, visual checks for all those required to work at display screen equipment seem to matter more than eye tests for those who drive in the vicinity of vulnerable road users. Far too often (daily in my case!), HGVs pass far too close to cyclists (examples are here, here and here). Our society accepts far too readily this hazardous proximity focussing on the actual collision without challenging drivers as to what they were doing so close to a cyclist as to permit a collision to occur.

It is not wise to cycle when drunk (and illegal, if so drunk as to not have proper control of the bike). However even if a cyclist is drunk, it should not be sufficient to conclude an investigation into his death by saying it was probably he who deviated from his course. This is what apparently happened following the death of Piotr Kobiela.  As in any safety context there is good reason for a comfortable margin of safety. We cyclists need a car width not in order pointlessly to inconvenience others but because anything less is dangerous, intimidating and does not make any allowance for potholes, mechanicals and wobbles.