Contributory Negligence
(1) undertaking a left turning vehicle
In McGeer v Macintosh
(2017) the Court of Appeal had to consider the sadly common event of a left
turning HGV colliding with a cyclist to the nearside on a city street (in this
case Ellesmere Port). The HGV had been
at a set of traffic lights, indicating left, ahead of the Claimant on her
bicycle. Because of the length of his
vehicle he straddled both a left/straight lane and a lane marked for turning
right. Immediately behind him was a car
that obscured his rear left turn indicator.
He claimed to have looked in his left mirror before moving off when the
light changed green in his favour. The
Claimant on her bicycle, travelling at no more than 16.5 mph undertook the car
and then the lorry. As she undertook the
lorry its driver turned left and the collision occurred.
There was debate about whether the Claimant should have been
visible in the driver’s mirror before he moved off. There was certainty that she would have been
visible after he moved off but immediately before he turned. The Defendant disputed that he was liable at
all but this was rejected. He should
have been aware of the potential for an undertaking cyclist and that his
indicator may have been obscured by a following vehicle. He should have checked his mirror before
moving off and again before turning. He was
liable.
The Claimant though contributed to the collision. She should not have made any assumption about
the intended direction of the lorry. The
trial judge assessed her contribution at 30%.
The Defendant challenged this saying that the greater speed of the
bicycle compared to the HGV made her responsibility the greater. The
Court of Appeal, in agreement with the trial Judge, had no difficulty rejecting
this:
“I consider that
whilst the judge had found that both parties were at fault in the respects identified
by the judge, it was appropriate for him to take into account the causative
potency of the HGV, given the likelihood of very serious injury to a cyclist in
the event of a collision. Although Mr Herbert sought to discount this on the
basis of the low speed of the HGV, I consider that the judge was entitled to
find that it was potentially a very dangerous machine. Its size and bulk were
such that in the event of collision it constituted a very serious danger to a
person in the position of the claimant.”
The Court opined that this case raises no issue of law,
precedent or other matters of general significance and that the result is of
significance only to the parties.
However cases on the actual apportionment of liability where a cyclist
has undertaken a left turning vehicle are thin on the ground and Defendants’
insurers will often seek a 50% or so reduction in such cases. This decision reaffirms that the degree of
hazard presented by the vehicle (great in the case of an HGV, very modest in
the case of a bicycle) are very important factors when apportioning liability.
Contributory
Negligence (2) Time trialling and failing to avoid an emergency created by
another
In Rickson v Bhakar
(2017) the High Court made a finding of contributory negligence of 20% against a
claimant who was taking part in a time trial on the A27 dual carriageway. The defendant driver had been travelling in
the opposite direction and turned right through a gap in the central reservation
into the Claimant’s path. Although the claimant
had swerved immediately before the collision it was found that he could have
braked earlier. As a consequence of his
injuries the claimant was not in a position to explain what had occurred. It was inferred that he either had his head
down or was too focussed on his performance.
A tough lesson that even in the heat of competition a cyclist must be
alert and ready to respond to the carelessness of other road users.
Potholes
Potholes are of particular concern to cyclists. The divergence of judicial opinion over the
extent of a Highway Authority’s duty to maintain the roads is illustrated by
the Court of Appeal decision in the case of Crawley
v Barnsley MPC (2017). This case
involved a jogger at the weekend. The
majority of the Court of Appeal found that a Highway Authority should have in
place a workable system for dealing with dangerous defects reported to them
over the weekend.
Of interest more specifically to cyclists is a Surrey
Coroner’s decision to make a ‘Prevention of Future Deaths’ report directing
highway authorities to have specific regard to the dangers presented to
cyclists by hazards anywhere in the road, and not just on cycle
lanes/paths. I will comment further once
the PFD is published.
The discount rate
A significant development on the quantum of serious personal
injury cases, including those affecting cyclists, is the Lord Chancellor's
determination that the ‘discount’ rate whereby damages for future loss are
adjusted due to receipt in advance of expenditure, be reduced from 2.5% to
-0.75%. The rate has been 2.5% since it
was first set by the then Lord Chancellor in 2001.
Prior to 2001 the discount rate had been a matter for the Courts and
when I started practice was as high as 4.5%.
The effect of the change is that damages for future loss sustained some
years ahead (for example compensation for care needs required in the future)
will be much greater. To some extent
this may be balanced by the fact that compensation for having to sink
additional capital into housing to meet the needs of a disabled person are
likely to be reduced or even, arguably, eliminated.
The insurance industry has been scathing about the change. However if they had been paying attention to
what has been happening in jurisdictions which apply English law, but where the
Courts continue to set the discount rate, they will have noticed that negative
rates have long been a feature. The leading
case was from Guernsey and just one year ago a client of mine benefitted from
the Court of Appeal in Bermuda adopting the same approach.
A negative discount rate may appear counterintuitive. It arises because the costs of, for example
personal care, will increase with wage inflation. In contrast investment in the most secure
available investments, such as index linked gilts, will increase at a rate
lower than wage inflation. It is harsh
to require a severely disabled claimant to take a market risk by investing in
equities since she may end up investing at a peak and will have no alternative source of income from
which to take advantage of any troughs. Nor
will she be able to defer realising investments to cover the wages of her
carers.
Tantalisingly though the Lord Chancellor has indicated that
the whole basis of her power to set the discount rate in the Damages Act will
be the subject of further review.
Finally no discussion of the discount rate would be complete
without mentioning the alternative, long favoured by the National Health
Service, but also now more attractive to motor insurers, of providing for
future needs by regular periodical payments indexed to a suitable measure of
inflation.
