Friday, 15 March 2013
Contributory Negligence - A worrying case
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.
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.