First, it's cycle helmets again. Last week His Honour Judge Wilcox sitting as a Deputy Judge of the High Court delivered his Judgment in Phethean-Hubble v Coles. On 28th November 2005, Tobias Phethean-Hubble, then aged 16, suffered severe brain injuries when he was cycling and came into collision with a Rover motor car driven by the then 17 year old Sam Coles.
Tobias's cycling was not above criticism; immediately prior to the collision he was cycling at 8pm unlit along the pavement and moved onto the carriageway of the road into the path of the Rover. The street was, however, well lit and Sam had no difficulty seeing Tobias. The failure to carry lights at night therefore only affected the outcome to the extent that it may explain why Tobias had been riding on the pavement, where the Judge observed that 'strictly' he should not have been.
The area was subject to a 30 mph speed limit. At trial there was an issue over speed with Sam accepting a speed slightly in excess of the speed limit and those representing Tobias alleging a rather greater speed. In the event the Judge found that the speed was 35 mph and found Sam to be liable for Tobais's injuries because of his excessive speed.
The Judgment is promising in that it accepts the dangers of speeding and emphasises the vulnerability of the cyclist. There was a finding that a reasonable motorist ought to have anticipated that the cyclist riding on the pavement would move into the road and a prudent motorist should have been prepared for such an eventuality and driven accordingly.
Driving 'accordingly' essentially meant moderating his speed. At 35mph there was no chance of avoiding the collision, he should not merely have been driving within the speed limit but should have slowed to 3-4 mph or so below the limit. At that speed there was a greater likelihood that the cyclist would have become aware of the approaching car in time, and the motorist would have had longer to react so as to avoid the collision, or at least cause less serious injury. Emphasis was placed on the significant difference between the two road users. One a cyclist with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
The Judge also found fault on the part of the cyclist in riding onto the road creating the emergency. He found this was an equal cause of the accident but given Tobias's age he considered a reduction of one third for contributory negligence was just and equitable.
There was in addition criticism of Tobias for not wearing his cycle helmet. The Judge accepeted as his starting point the words of Griffith Williams J in Smith v Finch who had likened fault on the part of a cyclist not wearing a helmet to fault on the part of a motorist for not wearing a seat-belt. On the face of it this is another blow for those who wish helmet wearing to be a matter of personal choice rather than external prescription. However the authority of the decision on this point is weakened by the fact that the contrary High Court authority A v Shorrock was not cited to the Judge and, rather extraordinarily, it appears that it was not even argued on Tobias's behalf that he was not at fault in leaving his helmet at home. As it was, the Judge made passing reference to risk compensation and to the fact that helmets may sometimes make injuries worse; suggesting a distinct possibiltiy that he may not have followed Smith v Finch had the matter been argued out.
As always (at least thus far) in cases of severe impacts, the finding was then made that the wearing of a helmet would not have made a significant difference to the extent of Tobias's injuries.
Comment. Although Claimant cyclists can usually be fairly confident that a Defendant motorist will be unable to establish that a helmet would have made any difference, this is not a good reason to permit assertions that a bare-headed cyclist is at fault to go uncontested. It is inimicable to the interests of cyclists generally to allow a series of cases to build up on a premise that not wearing a helmet equates to fault. I hope that this is the last time that such an assertion will be allowed to go unchallenged.
Aside from the helmet issue though there is much in the Judgment about the standard of care owed to cyclists by motorists and about the dangers of even 'moderate' speeding to merit a cheer. I believe it to be a useful antidote to the mantra that I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc. As I have made clear before, I personally reject this artificial 'evenhandedness' which is blind to the degree of potential to do harm to others.
[UPDATE: The Defendant's appeal against this Judgment was heard yesterday (28.11.11) and Judgment is awaited. The Defendant did not appeal the finding that a cycle helmet would have made no difference but there may well be some observations form the Court of Appeal on the degree of contributory negligence].
Death on the roads is sadly continuing at much the same rate this year, notably the 18 year old potential Olympian, Lewis Balyckyi, was run down by a Transit van and killed whilst out training in Lancashire in January.
In the criminal courts, the motorist responsible for the death of Cath Ward of Solihull CC was sentenced last December to a community order and disqualified from driving for one year. Cath had been competing in a 10 mile time trial last summer in good weather conditions on the A46 dual carriageway when she was hit from behind by a car driven by Arron Cook. Prosecutors decided to charge Cook with causing death by careless driving rather than by dangerous driving. (It is possible this case differs significantly from that of Major Gareth Rhys-Evans, see my legal review a year ago, but I do not see it as obvious from any of the reports). The result of this charging decision was that the Magistrates were empowered to, and rather unusually did, deal with the sentence themselves rather than referring to a higher Court. I continue to wish for greater consistency in charging and sentencing decisions in cases that involve killing, harming or endangering vulnerable road users.
Showing posts with label Legal update. Show all posts
Showing posts with label Legal update. Show all posts
Thursday, 3 March 2011
Thursday, 14 October 2010
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.
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.
Friday, 25 June 2010
Legal Update - Summer 2010
In the criminal courts the treatment of those who have killed cyclists has remained patchy. We all experience irrational road rage from time to time from motorists. The unfortunate cyclist, Paul Webb, was deliberately run down by a motorist, Sean Fitzgerald, apparently in retaliation for a damaged wing mirror. Mr Webb died of his injuries. Fitzgerald claimed this was an accident. Unhappily for Fitzgerald, but happily for justice, two workmen in a nearby driveway heard the engine noise followed by the collision and the jury rejected Fitzgerald's defence. Fitzgerald was convicted of murder, sentenced to life and will serve a minimum of 13 years. This is a first, so far as I am aware, of a murder conviction for a motorist who has run down a cyclist. I have an uneasy feeling that Fitzgerald is far from the first, or last, motorist to attack a cyclist in this way but if the cyclist is dead, it is often difficult to challenge the motorist's version of events.
44. In my judgment, although it is illegal for cyclists to use the pavement (unless it is specifically sanctioned by a local authority for shared use), when weighing up the danger to himself (cp danger to pedestrians) it was a reasonable decision by the Claimant to ride on the pavements in this area rather than the road in the context of the duty of care owed to himself to take reasonable care for his own safety whilst cycling. In my judgment, although illegal and potentially negligent in any action vis a vis a pedestrian, it was not “blameworthy” in terms of negligence in contributory negligence."
So there we have it, judicial confirmation that the facilities for cyclists are so poor that they can reasonably decide to travel illegally on the pavement. I suspect Mr Kotula was wearing a helmet (because the report does not state otherwise) but there is also here further ammunition to use against those who argue that a cyclist is guilty of contributory negligence if he does not wear a helmet:
"50. In any event, even if contributory negligence had been established here, the relative culpability and causative potency of the alleged negligent acts of the Defendants and the Claimant under the principles in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2KB 291 were such that those of the Defendants were overwhelming: their negligence potentially threw users of the pavement into the path of vehicles on the carriageway; whereas the Claimant was rightly or wrongly using the pavement in the first place to try and avoid uncomfortable proximity with those very vehicles."
In the other civil case, which also came before HHJ Brown, the widow of Ninian Donald, claimed damages against the driver of a skip lorry that crushed Mr Donald as it turned left at traffic lights in Hackney in May 2007. The Defendant accepted 75% of the blame for the accident and damages were agreed, and approved by the judge, on that basis. This is a tragically common type of incident especially in London. Interestingly at the inquest the investigating police had no hesitation in heaping the entirety of the blame on Mr Donald.
I have commented before on the adequacy of police and coroners' investigations into the deaths of cyclists. Earlier this week I met up with a lot of lawyers, medics, bereaved and others interested in the legal investigations of death. It strikes me that there is a hierarchy of deaths; sterling and thorough work (not least by Coroners) goes into the investigation of deaths in custody (including those detained by UK forces abroad), deaths of soldiers, deaths in the workplace. The public funds, and rightly so, investigation and legal representation of the highest quality to take on such cases. Typically those involved in the coronial system at this level are favourably impressed. Relatives of the victims of Road Traffic Collisions are almost universally far less impressed. My own explanation for this is that our society is car dominant. Deaths in a factory or building site or an unnatural death whilst detained by the State are a disgrace and should not happen: deaths on the road, well that's the inevitable price we pay for enjoying our motor vehicles. The unnatural violent death of any individual is equally important. I wish we could move up the list of priorities at least those vulnerable road users who pay the ultimate price for taking up the Government's exhortations to walk or cycle.
In my last update I described the fate of Katie Hart (who ran down and killed Major Gareth Rhys-Evans) and described her prison sentence as 'inevitable'. It appears I need to revise my idea of what is inevitable. Yesterday Georgina Mills walked free from Exeter Crown Court following her conviction of causing death by dangerous driving. Last September she had run down two cyclists on the A30 in Tedburn St Mary. The cyclists were on a long distance ride for charity and one of them, Simon Evans, died from his injuries. Mills admitted the charge of causing death by dangerous driving (a factor that differentiates her case from Hart) and expressed remorse. She was ordered to do unpaid community work and was (like Hart) disqualified from driving for just two years.
Mills had apparently been distracted for two seconds by a spider. Presumably if you take your eyes off the road to deal with a spider you slow down, but even if Mills continued at 60 mph and hit the cyclists at the very end of the two seconds, she would have been only 53 metres from the pair when she first took her eyes off the road. I do not know the precise location of the collision but Google Earth reveals this to be a straight wide dual carriageway.
53 metres is certainly less distance than the nearest car is away in this Google Streetview. It is not, in my view, very helpful to characterise this type of accident as 'momentary inattention' since that can be applied almost universally to road traffic collisions. I strongly suspect that the cyclists must have been there to be seen before the motorist was distracted by the spider. The underlying problem is that she did not take in, or react appropriately, to the presence of cyclists on the road. The brain ought to have already started to process the achievement of the task ahead, namely to overtake two cyclists in a safe way. Slowing and planning a move to the offside should already have been happening. To add to the horror, the surviving cyclist was able to give evidence that both bicycles had been to the nearside of the rumble strip which, at least superficially, may appear to be the safest place to be. This is wholly understandable and obviously no scintilla of blame could possibly be ascribed to the cyclists. I have many times stated on these pages how I deal with dual carriageways
and sometimes those I am with (and certainly some motorists) think me mad - but I would rather the motorist's brain processed "What is that nutter doing in the middle of my lane?" than processed nothing at all. Ultimately if the driver kept coming I would have been onto the grass verge. There is no safety at the side of the road; some motorists will act as though you are not there and you cannot tell at the edge whether they are going to hit you or pass you until it is too late.
and sometimes those I am with (and certainly some motorists) think me mad - but I would rather the motorist's brain processed "What is that nutter doing in the middle of my lane?" than processed nothing at all. Ultimately if the driver kept coming I would have been onto the grass verge. There is no safety at the side of the road; some motorists will act as though you are not there and you cannot tell at the edge whether they are going to hit you or pass you until it is too late.
Of course this strategy requires looking behind almost more than looking ahead and is incompatible with Time Trialing. It pains me to report that there has been yet another death of a Time Trialist, this time on the A419 dual carriageway near Swindon. At about 7.45 pm on June 12th Alex Anderson was struck by a car and later that night died in hospital. Traffic is reported to have been exceptionally light, perhaps due to a football match that England was playing at the time in South Africa. I will be keeping an eye out for any proceedings that come out of this but make no further comment now.
In the civil courts there have been two recent cases of note. In Kotula v EDF & others on 6th June 2010 HHJ Simon Brown (sitting as a deputy High Court Judge) gave a Judgment in favour of a cyclist who had suffered catastrophic injuries when he fell into the road under a lorry whilst trying to negotiate some poorly sited barriers erected by the Defendant companies around some roadworks on the pavement. The Defendants alleged that Mr Kotula was partly to blame and, as part of their argument, asserted that he had been riding his bicycle unlawfully on the pavement. The Judge found that Mr Kotula (a policeman incidentally) had probably been pushing his bike through the roadworks though he did habitually use the pavements for part of his commute. However the Judge added:
"43. In my judgment, this piece of road was dangerous for all but the most experienced, traffic fast, confident and dominant of cyclists i.e. the „serious‟ cyclist as Mr Ibbotson [an expert witness] puts it, as opposed to the ordinary prudent cyclist using a cycle to go to work encumbered with his cycle rucksack.
44. In my judgment, although it is illegal for cyclists to use the pavement (unless it is specifically sanctioned by a local authority for shared use), when weighing up the danger to himself (cp danger to pedestrians) it was a reasonable decision by the Claimant to ride on the pavements in this area rather than the road in the context of the duty of care owed to himself to take reasonable care for his own safety whilst cycling. In my judgment, although illegal and potentially negligent in any action vis a vis a pedestrian, it was not “blameworthy” in terms of negligence in contributory negligence."
So there we have it, judicial confirmation that the facilities for cyclists are so poor that they can reasonably decide to travel illegally on the pavement. I suspect Mr Kotula was wearing a helmet (because the report does not state otherwise) but there is also here further ammunition to use against those who argue that a cyclist is guilty of contributory negligence if he does not wear a helmet:
"50. In any event, even if contributory negligence had been established here, the relative culpability and causative potency of the alleged negligent acts of the Defendants and the Claimant under the principles in Davies v Swan Motor Co. (Swansea) Ltd. [1949] 2KB 291 were such that those of the Defendants were overwhelming: their negligence potentially threw users of the pavement into the path of vehicles on the carriageway; whereas the Claimant was rightly or wrongly using the pavement in the first place to try and avoid uncomfortable proximity with those very vehicles."
In the other civil case, which also came before HHJ Brown, the widow of Ninian Donald, claimed damages against the driver of a skip lorry that crushed Mr Donald as it turned left at traffic lights in Hackney in May 2007. The Defendant accepted 75% of the blame for the accident and damages were agreed, and approved by the judge, on that basis. This is a tragically common type of incident especially in London. Interestingly at the inquest the investigating police had no hesitation in heaping the entirety of the blame on Mr Donald.
I have commented before on the adequacy of police and coroners' investigations into the deaths of cyclists. Earlier this week I met up with a lot of lawyers, medics, bereaved and others interested in the legal investigations of death. It strikes me that there is a hierarchy of deaths; sterling and thorough work (not least by Coroners) goes into the investigation of deaths in custody (including those detained by UK forces abroad), deaths of soldiers, deaths in the workplace. The public funds, and rightly so, investigation and legal representation of the highest quality to take on such cases. Typically those involved in the coronial system at this level are favourably impressed. Relatives of the victims of Road Traffic Collisions are almost universally far less impressed. My own explanation for this is that our society is car dominant. Deaths in a factory or building site or an unnatural death whilst detained by the State are a disgrace and should not happen: deaths on the road, well that's the inevitable price we pay for enjoying our motor vehicles. The unnatural violent death of any individual is equally important. I wish we could move up the list of priorities at least those vulnerable road users who pay the ultimate price for taking up the Government's exhortations to walk or cycle.
Wednesday, 3 March 2010
Legal Review of the Month - February 2010
Inquests have been held since at least Norman times into sudden or violent deaths in England. The inquest represents the remaining vestige of the medieval code of kingship whereby the Crown protected his subjects in exchange for their fealty. There is a vital public interest in encouraging cycling and there is no more important role for an inquest than investigating thoroughly the circumstances in which someone who has taken up this public encouragement meets a violent death.
It is true that the families of killed cyclists may pursue a responsible party in the Civil Courts. However liability is likely to be admitted and there is unlikely to be any investigation into the circumstances of the 'accident'. Before the days of the car culture, Charles Dickens in A Tale of Two Cities described the actions of the aristocrat who tossed the gold coins to the family of the child his coach had run down and killed as epitomising the immorality and corruption of the ancien regime. Today his actions would be lauded as providing the promptest possible admission of liability and generous offer of compensation. Often the prompt admission of liability and payment of compensation is not enough.
Though we are all equal before the law, it would perhaps be asking too much to expect that every inquest be as detailed as that which occurred into the relatively straightforward circumstances of a Princess who was driven by a drunk driver at high speed through a city centre without fastening her seatbelt. Nonetheless every inquest into a cyclist's death requires thorough examination. It is a pity that legal aid is (generally) not available to the bereaved families. However in a rather encouraging decision on the assessment of costs, it has been determined that part of the costs of an inquest, may be recoverable in a subsequent civil claim. It is to be hoped that many lawyers would be prepared to help families in the hope that some part of the cost may be recovered subsequently - I for one would. It would also be a useful step if cycling organisations facilitated legal representation by including it as a standard insurance benefit (as it is for motorists whose conduct comes under scrutiny at an inquest).
In February I met some of the family of Eilidh Cairns who tragically died under the front wheel of an HGV a year ago in Notting Hill Gate. The inquest, which recorded a verdict of accidental death, was clearly not as detailed as the family would have liked and may be thought to be entitled to expect. A narrative verdict is available to Coroners and there is a case for believing it should be used in this type of case. I say no more as proceedings arising from this tragedy have clearly yet to conclude.
Scotland does not have the same history of inquests but instead Fatal Accident Inquiries may be used to perform a similar function. Such an FAI has just opened into the death of Jason MacIntyre and there is hope that, at least on this occasion, a thorough investigation will take place.
The Crown Prosecution Service's determination to enforce the law against those, on the face of it, responsible for the death of cyclists remains patchy as Eilidh Cairns's case illustrates. It is interesting that they appear to have a policy of leaving it to the jury to determine whether excessive force has been used against a dead burglar, yet being often reluctant to leave the question whether adequate care has been taken by a motorist around a dead cyclist. One might have supposed that the public policy in encouraging and protecting cyclists was greater than that of encouraging and protecting burglars.
However one highlight of February has to be the successful prosecution of Katie Hart arising from the death of Major Gareth Rhys-Evans. I have already applauded the CPS for not accepting a lesser plea. I was not at the trial so do not know how hard Ms Hart was pressed on her explanation that she did not see either of the two time trialists before the collision. The explanation was accepted for the purposes of sentence. A prison term was inevitable and the driving ban of two years was the minimum permissible under the legislation. The Judge was constrained by sentencing guidelines which in part read 'a ban which will extend for a substantial period after release is likely to be counterproductive if it is imposed on an offender who ... requires a driving licence to earn his or her living, because it may tempt the offender to drive while disqualified.'
It is true that the families of killed cyclists may pursue a responsible party in the Civil Courts. However liability is likely to be admitted and there is unlikely to be any investigation into the circumstances of the 'accident'. Before the days of the car culture, Charles Dickens in A Tale of Two Cities described the actions of the aristocrat who tossed the gold coins to the family of the child his coach had run down and killed as epitomising the immorality and corruption of the ancien regime. Today his actions would be lauded as providing the promptest possible admission of liability and generous offer of compensation. Often the prompt admission of liability and payment of compensation is not enough.
Though we are all equal before the law, it would perhaps be asking too much to expect that every inquest be as detailed as that which occurred into the relatively straightforward circumstances of a Princess who was driven by a drunk driver at high speed through a city centre without fastening her seatbelt. Nonetheless every inquest into a cyclist's death requires thorough examination. It is a pity that legal aid is (generally) not available to the bereaved families. However in a rather encouraging decision on the assessment of costs, it has been determined that part of the costs of an inquest, may be recoverable in a subsequent civil claim. It is to be hoped that many lawyers would be prepared to help families in the hope that some part of the cost may be recovered subsequently - I for one would. It would also be a useful step if cycling organisations facilitated legal representation by including it as a standard insurance benefit (as it is for motorists whose conduct comes under scrutiny at an inquest).
In February I met some of the family of Eilidh Cairns who tragically died under the front wheel of an HGV a year ago in Notting Hill Gate. The inquest, which recorded a verdict of accidental death, was clearly not as detailed as the family would have liked and may be thought to be entitled to expect. A narrative verdict is available to Coroners and there is a case for believing it should be used in this type of case. I say no more as proceedings arising from this tragedy have clearly yet to conclude.
Scotland does not have the same history of inquests but instead Fatal Accident Inquiries may be used to perform a similar function. Such an FAI has just opened into the death of Jason MacIntyre and there is hope that, at least on this occasion, a thorough investigation will take place.
The Crown Prosecution Service's determination to enforce the law against those, on the face of it, responsible for the death of cyclists remains patchy as Eilidh Cairns's case illustrates. It is interesting that they appear to have a policy of leaving it to the jury to determine whether excessive force has been used against a dead burglar, yet being often reluctant to leave the question whether adequate care has been taken by a motorist around a dead cyclist. One might have supposed that the public policy in encouraging and protecting cyclists was greater than that of encouraging and protecting burglars.
However one highlight of February has to be the successful prosecution of Katie Hart arising from the death of Major Gareth Rhys-Evans. I have already applauded the CPS for not accepting a lesser plea. I was not at the trial so do not know how hard Ms Hart was pressed on her explanation that she did not see either of the two time trialists before the collision. The explanation was accepted for the purposes of sentence. A prison term was inevitable and the driving ban of two years was the minimum permissible under the legislation. The Judge was constrained by sentencing guidelines which in part read 'a ban which will extend for a substantial period after release is likely to be counterproductive if it is imposed on an offender who ... requires a driving licence to earn his or her living, because it may tempt the offender to drive while disqualified.'
Sunday, 31 January 2010
Legal Review of the month - January 2010
Important note: this is a general post that can not be relied upon for your individual cirumstances. If you need legal advice contact a lawyer. If you contact me I will try to help or put you in touch with someone who can.
Ice
With the harshest winter for many years, it is worth bearing in mind the statutory duty on Highway Authorities 'to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice' (section 41(1A) of the Highways Act 1980 inserted in 2003 to reverse a Court decision to the contrary effect).
If you have suffered personal injury or damage to your bike after a fall on ice on the road then, self-evidently, your safe passage has been endangered and it is then for the Authority to demonstrate it has done what is reasonably practicable to remove the ice before you fell. In the event of serious injury or damage it may be worth enquiring of the Authority whether they had an appropriate salting policy and whether they complied with it. My suspicion is that many Highway Authorities would be able to demonstrate that despite their best efforts they were overwhelmed with the unusual weather conditions and constrained by central government advice to restrict salting to major routes.
I shall not therefore be looking into suing the Highway Authority charged with the responsibility of clearing ice from the road in Flackwell Heath, Bucks early one Sunday morning where I came a cropper.
Potholes
The freezing, thawing and refreezing of the roads has left many of them in an appalling state of repair. The Highway Authorities have a similar duty to deal with potholes. Section 58 provides a defence if the Authority can show that it has taken such care as was in all the circumstances reasonably required to ensure that the road was safe for traffic. Relevant to this is s.58(d) "whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway".
For that reason it is very important to let Highway Authorities know about dangerous potholes, whether by using the useful CTC website fill that hole or otherwise.
And, yes, notwithstanding the views of the petrolheads, bicycles are traffic.
In the Courts
Two promising signs that the car culture does not always prevail. The successful prosecution of Katie Hart for causing the death of Major Gareth Rhys-Evans by dangerous driving shows that the police and CPS will not always accept the running down of a cyclist with equanimity. One disappointment (since this could and should serve as a useful deterrent) is that the case has not received more publicity. It is to my mind telling that we have heard so much more about the report from the 'Road Safety Foundation' which says nothing at all about cyclists and appears to believe that shielding motorists who have run off the roads from things like trees is a sensible use of finite resources. They clearly know nothing of risk compensation and it is, to my mind, more important that motorists stop hitting cyclists than that they stop hitting trees.
In a separate case, Osei-Antwi v South East London & Kent Bus Co Ltd (2010), the Court of Appeal have reversed a trial judge's finding of contributory negligence against a pedestrian who was standing on the pavement (a space reserved for pedestrians) when struck by a turning bus. The only real surprise is that the trial judge thought it appropriate to impose the obligation on the pedestrian to jump out of the way of a bus which had no business being on the pavement.
Meanwhile in the Westminster Coroner's Court, deputy Coroner Dr Shirley Radcliiffe, returned a verdict of accidental death after enquiring into the death of Eilidh Cairns, one of an alarming number of young women killed in London by HGV vehicles last year. The HGV driver faces charges of driving with defective vision. I hope to bring more on this case in the near future.
In Chester Crown Court the Crown Prosecution Service announced that it would not be persuing charges against Tracey Johnson who had run into Sharon Corless killing her and seriously injuring her husband. She lost control of her unusually heavy 4x4 Range Rover vehicle. Medical evidence indicated that she may have suffered a sudden feint, so it was presumably thought that the chances of a conviction were not good. An earlier line of legal authorities (see Attorney General's Reference No 2 of 1992) have made it clear that a driver cannot lay claim to the defence that he was acting in an unconscious state unless he has taken proper precautions to stop that state from coming upon him. It may be thought that this horrific accident coupled with such an extraordinary explanation could sensibly be left to the judgment of a jury. Nobody should be behind the wheel of any car, let alone a heavy 4x4, without complete confidence that they can control it.
Jackson
Lord Justice Rupert Jackson has completed his final Review of Civil Litigation Costs. This is causing consternation amongst lawyers and will require legislation to implement its recommendations. What every cyclist needs to know is that the days when you could enter a 'no win, no fee' agreement secure in the knowledge that if you won the other side would pay all your lawyer's bills may be numbered. Success fees paid to your lawyer for the risk of not winning, and insurance premiums required to meet the other side's costs should you lose, may in the future come out of your damages. The best advice is to ensure you have insurance before your accident. Fortunately with membsership of BCF and CTC and no doubt some other organisations such cover comes as standard.
Ice
With the harshest winter for many years, it is worth bearing in mind the statutory duty on Highway Authorities 'to ensure, so far as is reasonably practicable, that safe passage along a highway is not endangered by snow or ice' (section 41(1A) of the Highways Act 1980 inserted in 2003 to reverse a Court decision to the contrary effect).
If you have suffered personal injury or damage to your bike after a fall on ice on the road then, self-evidently, your safe passage has been endangered and it is then for the Authority to demonstrate it has done what is reasonably practicable to remove the ice before you fell. In the event of serious injury or damage it may be worth enquiring of the Authority whether they had an appropriate salting policy and whether they complied with it. My suspicion is that many Highway Authorities would be able to demonstrate that despite their best efforts they were overwhelmed with the unusual weather conditions and constrained by central government advice to restrict salting to major routes.
I shall not therefore be looking into suing the Highway Authority charged with the responsibility of clearing ice from the road in Flackwell Heath, Bucks early one Sunday morning where I came a cropper.
Potholes
The freezing, thawing and refreezing of the roads has left many of them in an appalling state of repair. The Highway Authorities have a similar duty to deal with potholes. Section 58 provides a defence if the Authority can show that it has taken such care as was in all the circumstances reasonably required to ensure that the road was safe for traffic. Relevant to this is s.58(d) "whether the highway authority knew, or could reasonably have been expected to know, that the condition of the part of the highway to which the action relates was likely to cause danger to users of the highway".
For that reason it is very important to let Highway Authorities know about dangerous potholes, whether by using the useful CTC website fill that hole or otherwise.
And, yes, notwithstanding the views of the petrolheads, bicycles are traffic.
In the Courts
Two promising signs that the car culture does not always prevail. The successful prosecution of Katie Hart for causing the death of Major Gareth Rhys-Evans by dangerous driving shows that the police and CPS will not always accept the running down of a cyclist with equanimity. One disappointment (since this could and should serve as a useful deterrent) is that the case has not received more publicity. It is to my mind telling that we have heard so much more about the report from the 'Road Safety Foundation' which says nothing at all about cyclists and appears to believe that shielding motorists who have run off the roads from things like trees is a sensible use of finite resources. They clearly know nothing of risk compensation and it is, to my mind, more important that motorists stop hitting cyclists than that they stop hitting trees.
In a separate case, Osei-Antwi v South East London & Kent Bus Co Ltd (2010), the Court of Appeal have reversed a trial judge's finding of contributory negligence against a pedestrian who was standing on the pavement (a space reserved for pedestrians) when struck by a turning bus. The only real surprise is that the trial judge thought it appropriate to impose the obligation on the pedestrian to jump out of the way of a bus which had no business being on the pavement.
Meanwhile in the Westminster Coroner's Court, deputy Coroner Dr Shirley Radcliiffe, returned a verdict of accidental death after enquiring into the death of Eilidh Cairns, one of an alarming number of young women killed in London by HGV vehicles last year. The HGV driver faces charges of driving with defective vision. I hope to bring more on this case in the near future.
In Chester Crown Court the Crown Prosecution Service announced that it would not be persuing charges against Tracey Johnson who had run into Sharon Corless killing her and seriously injuring her husband. She lost control of her unusually heavy 4x4 Range Rover vehicle. Medical evidence indicated that she may have suffered a sudden feint, so it was presumably thought that the chances of a conviction were not good. An earlier line of legal authorities (see Attorney General's Reference No 2 of 1992) have made it clear that a driver cannot lay claim to the defence that he was acting in an unconscious state unless he has taken proper precautions to stop that state from coming upon him. It may be thought that this horrific accident coupled with such an extraordinary explanation could sensibly be left to the judgment of a jury. Nobody should be behind the wheel of any car, let alone a heavy 4x4, without complete confidence that they can control it.
Jackson
Lord Justice Rupert Jackson has completed his final Review of Civil Litigation Costs. This is causing consternation amongst lawyers and will require legislation to implement its recommendations. What every cyclist needs to know is that the days when you could enter a 'no win, no fee' agreement secure in the knowledge that if you won the other side would pay all your lawyer's bills may be numbered. Success fees paid to your lawyer for the risk of not winning, and insurance premiums required to meet the other side's costs should you lose, may in the future come out of your damages. The best advice is to ensure you have insurance before your accident. Fortunately with membsership of BCF and CTC and no doubt some other organisations such cover comes as standard.
Subscribe to:
Posts (Atom)
