Friday, 15 March 2013

Contributory Negligence - A worrying case

I recently stumbled across a case decided two years ago in the High Court in Birmingham which causes me some concern.  The case is Thomas v Warwickshire County Council.  Judgment was delivered by Mr Justice Wilkie on 31st March 2011.  The case was about the liability of the Highway Authority for injuries sustained by John Thomas on 16th April 2006 when he fell hard after his bike hit a lump of concrete that was stuck to the road.
Mr Thomas was on a Sunday Club run with Solihull CC.  His group of 18 riders went down Gospel Oak Lane towards Stratford-on-Avon.  The concrete was on a downhill stretch with a bend.  The Highway Authority argued it was a defect that they were not required to deal with urgently because it was between the expected wheeltracks of motorists.  Had it been one metre over to either left or right it would (or should) have been picked up on the regular highway's inspection.  To the extent that thought was given to cyclists it was assumed (demonstrating a shocking ignorance of cycling practice) that cyclists would be confined to the part of the road where the nearside wheels of motor vehicles run.  The case does not reveal what, if any, thought was given to motorcyclists.
The Judge found that the concrete should have been removed by the Highway Authority prior to Mr Thomas's accident and therefore found it liable for his injuries.  He went on to consider contributory negligence on the part of Mr Thomas.
The Judge could not help himself from observing that Mr Thomas "was not wearing any form of protective headgear" though happily contributory negligence on this ground was not something that was argued.
Instead, however, the Judge found Mr Thomas to have been contributorily negligence to the extent of 60% for riding too close to the rider in front.
This is a massive deduction and it arose because the Judge found Mr Thomas's evidence to be "startling."
"The claimant’s evidence was in some respects startling. He was riding in a group of 19 or so. They were riding in rows of two, which is normal and which in itself cannot be said to be negligent. However, insofar as he can remember, prior to the incident he was riding his racing bike with very narrow tyres and no tread. In his first statement he remembered he was travelling about 25-30 mph. In his second he says he was told it was 20-25 mph. There were cyclists in front of him and cyclists behind him. His normal position would be on the outside lane. His normal position when in a group was 5 to 6 inches of the back wheel of the bike in front and he was in the middle of the group with cyclists to his front and cyclists to his rear."
As a matter of fairly elementary physics having narrow tyres and no tread would have had absolutely nothing to do with the accident or even with the amount of grip available (air pressure in the tyres might affect grip in wet conditions but there is no suggestion that it was wet or that his wheels slid).  Speeds of the order of 25 mph are entirely consistent with careful riding down hill.  Usually even I average more than 25 mph in a race on the flat.  Equally a normal position 5 to 6 inches off the back wheel of the rider in front is something to strive for (or closer if you can manage it).
I am left with the disarming suspicion that the lawyers and 'experts' at this trial had no understanding of the basics of the sport of cycling.  It is not surprising - when I joined my Club it took months/years for me to build up the trust required to ride on the wheel ahead.  I have said elsewhere on this blog that I believe everybody should hone their riding skills with a club before taking up racing, yet apparently we are at 'fault' if we ride on the roads holding the wheel ahead at anything approaching race pace.
The evidence that the Judge used in making this finding of contributory negligence was that a clubmate who witnessed the fall had said that his 'normal cycling distance within a group' was  half a metre.  I do not have a transcript of the evidence so do not know whether this witness was asked whether he thought others riding closer than that were at fault or whether the Claimant (who had a head injury so could not remember the accident itself) was asked whether he opened up his normal distance somewhat when travelling downhill as most riders instinctively do.
There might, I suppose, have been reasoned and informed argument about whether a rider accepts the risk that something will happen to the rider in front or that hazards will not be observed and called out by riders ahead or whether he should have followed the line of the wheel ahead more accurately (since he was the first to hit the concrete).  However to condemn Mr Thomas on the grounds that he was following too close demonstrates an unfortunate lack of understanding of what he was doing.
I have said this before:  If you are unfortunate enough to come off your bike and need legal advice please make quite sure you go to lawyers who understand cycling.  The Judge very likely will not.without suitable guidance from your lawyer.


  1. (/devil's advocate on)
    Do we think the highway authority has any duty to provide a highway in a condition to enable cycle-racing to be carried on safely?
    (/devil's advocate off)
    As you say the judge overlooked the safety of motorcyclists. And what about tricyclists, and G-Whizz drivers?

  2. Box Hill was resurfaced for the Olympic Road Race and the French regularly resurface the routes of the TdF - one of the reasons riding an etape is such a joy. However nobody could in my view sensibly draw a distinction between roads that are reasonably safe for cyclists and roads that are reasonably safe for cyclists who are racing.

  3. The Highway Code Rule 126 includes "...Drive at a speed that will allow you to stop well within the distance you can see to be clear. ..." I'm not a lawyer but I thought all road users had a general duty to keep good lookout. Presumably, if you get help with that from somebody else, whether that's somebody helping the driver of a lorry to reverse or a rider at the head of a group of cyclists, if it goes wrong, it's between you and them. (That's a better explanation of the benefits of following a wheel than from TV commentators.)

  4. "Box Hill was resurfaced for the Olympic Road Race" (and a lot more road repairs were done on the route.) Actually I think that tends to reinforce the devil's advocate point rather than argue against it. Precisely because road surfaces are not kept safe for cycle racing, they had to go around resurfacing them to make them fit for a prestigious race when the world was watching.

  5. It is worth noting that this style of riding is normal on club runs, and I am now a member of Solihull CC and participate in the Sunday rides which are not races (I believe that this was a typical Sunday ride and the speeds mentioned would not be atypical of the A or B ride - the faster groups - slower groups would tend to break up on the fast descents).

    Our club guidance suggests half a wheel is a suitable distance, and anyone who rides road bikes will know that when riding like that you are highly dependent on the members of the group working as a co-operative body.

    I think one of the issues in the quote is that we ride "road bikes" which are commonly referred to as "racing bikes". I think the difference can be seen in thinking about road cars, where someone driving a Porsche 911 would not be considered to be driving a racing car, but the man in the street would not really differentiate between a sports car and a racing car. Road bikes are simply light-weight, efficient cycles. They have two weaknesses - they are not robust enough to withstand severe potholes so riders must avoid them, and the braking on them is not as good due to the small amount of rubber on the road - so as a group they tend to ride conservatively.

    In terms of riding style, riding in a group is a means of cycling efficiently and allows the group runs to go at speeds and distances that individuals would not manage. A typical run on a Sunday for Solihull CC would be 60-80 miles for a 4 hour run (plus break). The half a wheel gap is recommended by the club because if someone rises out of the saddle, the bike naturally drops back as the rider does so. To ride closely, you depend on calls - for cars ahead and behind, to go single file, and to beware of potholes. In fact, on club runs, members are quite vocal about correct positioning precisely because it is a safety issue and new members are encouraged to go on the slower runs to gain experience of the style of riding.

    There are problems with this style of riding - groups can become too big for motorists to pass - if there is a group of 20 then single string you are a massive long line and two abreast you are still a major obstacle to cope with, but riders are reluctant to break the group up.

    Does this ruling suggest that we are negligent following a riding style that has been in use for decades? This is not about racing, this is about social riding.

    1. Thanks for that. I hope nobody took me to imply that Mr Thomas was racing - my point was simply that club runs are an excellent way to get used to riding in a group which is a pre-requisite for racing. In my Club we do not recommend a half wheel gap. The closer you can get to the wheel ahead the more you will benefit from drafting. It does involve trusting the skills of the riders around you (eg no snap back when getting out of the saddle - drummed into me early on).
      I think you are wrong to suggest that thin tyres have less grip or brake less efficiently than wider tyres. If I recall my physics right friction is independant of area.

    2. The important point is that the judge seemed to perceive that road bikes ridden in groups very closely together were doing something unusual and risky rather than typical for this style of riding. This style of riding does compromise the individual's ability to see and respond to threats.

      The reality is that roads are not well maintained and group rides need to be managed in such a way as to cope with that. It is a fact of life that there will be innumerable potholes of sufficient depth to damage bikes and occasional obstructions on the road that could cause a rider to fall.

      The interesting part of the case for me is that it was clear that the form of the obstruction was in some way permanent so it could reasonably be held that the authority reasonably could be expected to resolve the problem, but I'd like to know if it was of a form that was substantially different from other typical hazards.

      As a riding style, group rides cannot and do not depend on the road being clear of imperfections - it could easily have been a piece of debris just having fallen from a previous vehicle. Without knowing the circumstances, I would have been happier with a judgement that said that the responsibility lay in part with the group as a whole for failing to make proper allowance for the potential obstructions in the road.

      The judgement is not overly surprising, riding in groups on quiet lanes on Sunday mornings still seems to bring out the odd motorist who is determined to educate group rides of the folly of our actions and suggest that we should ride in a manner to suit the motorists' convenience.

  6. I am called Mick Agar (I posted above anonymously when I assumed it was going to ask my name.)

    I speak as a life-long cyclist and I know the benefits of following a wheel. I cannot see how that reduces the duty to keep a good lookout. Cyclists riding like this probably pose no significant danger to others so it's not a cause for public concern but if it goes wrong and a rider is hurt, then I'd assume they would be judged to be negligent. As a layman, I'm amazed that a lawyer might see it differently. I'd agree that "The Law" in all its forms can discriminate against cyclists but this isn't a judgment where I'd want to plant my flag and make a stand.

    Incidentally, I think the reference to racing is unfortunate, especially the picture of the strung out bunch at the head of the piece. It shows, for example that racing cyclists are obliged to wear helmets; not a precedent I'd like to see applied to all cyclists on the grounds that it's what the top professionals do. What else might racing behaviour excuse? Hanging on to a car? Taking pace right behind a car? Riding no hands? Having a pee on the move? Grabbing a musette?

    1. Yes, but there was a defect on the road which gave rise to a foreseeable risk to cyclists. The Judge was 'startled' that cyclists rode in the manner that Mr Thomas did whereas in fact he was doing nothing unusual.

  7. Why would riding half a wheel behind a bike for aerodynamic benefit be treated any differently from a truck "tail -gating" for exactly the same benefit. Neither can see the road is clear within a reasonable stopping or at least avoiding dstance?

    1. For many reasons which, though obvious to anybody who takes part in group riding, clearly needed explaining to this Judge. 'Fault' is an elastic enough concept to include the balancing of risks and rewards in everyday life. To hold that all of the 1,000s of individuals who enjoy group riding are at fault simply for their choice of sport/pasttime is, in my view, wrong. As I have indicted, riders may be at fault in other ways but that is not what the Judge found.

  8. Mick Agar again (the last anon wasn't me.)
    I see that in Wilkinson v York City Council (2011) which was about a highway authority's special defence under s s58, contributory negligence of 50% was found against the injured cyclist for not avoiding the pothole. Would you argue that that was wrong as well?