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.

The Mayor of London's Cycling Vision

Lat week's publication of the Mayor of London's new Vision for Cycling in London has got to be welcome.  The foreward (which has all the hallmarks of Johnson's writing) in particular expresses very welcome sentiments.  I highlight a few:

- "Cycling will be treated not as niche, marginal, or an afterthought, but as what it is: an integral part of the transport network, with the capital spending, road space and traffic planners’ attention befitting that role.
- "The Westway, the ultimate symbol of how the urban motorway tore up our cities, will become the ultimate symbol of how we are claiming central London for the bike.
- "I want cycling to be normal, a part of everyday life. I want it to be something you feel comfortable doing in your ordinary clothes, something you hardly think about.
- "There will be greatly-improved fast routes on busy roads for cyclists in a hurry. And there will be direct, continuous, quieter routes on side streets for new cyclists, cautious cyclists and all sorts of other people who would rather take it more slowly. But nothing I do will affect cyclists’ freedom to use any road they choose."

The Mayor and Chris Boardman on the embankment arriving for last week's press launch of his Vision.  Note 'normal' clothing,  Chris suitably distanced from the kerb, presence of HGVs and is that a car behind in the cycle lane? (not I trust a Mayoral following car).

Contrast this impression of what the Embankment might look like.  Free flowing cycles and cars in their separated facilities with no HGV in sight.

I ride up and down the Embankment on my commute to/from work and know it well.  A very major advantage of the depicted segregated cycle track is that it would take away the need to wait at numerous traffic lights.  A lot of cyclists of varying speeds already use the Embankment so I am hoping these lanes are going to be suitably wide.  I would hope 2.5metres in each direction (5 metres) in total.  This depiction does show the low hanging fruit in the sense that alongside the river it is easy to avoid junctions save at bridges (where there is no artist's depiction) .  Further, I may be surprising motorists by being on the road rather than cycleway for at least part of the Embankment in order to make my turn into and out of The Temple.  

The most remarkable part of this Vision is the preparedness both on the Embankment and the Westway for an elected politician to take space from motorists.  Even the very sensible pro-cycling President of the AA, Edmund King, has questioned the use of the Westway reasoning that street level cycle provision is to be preferred.  However both speed and safety are improved for cyclists if junctions are minimised.  Motorists have long had the benefits of limited access roads whilst cyclists have had to negotiate frequent junctions.  If I were mad enough to drive to work I would get all the way from Egham to West Kensington encountering one traffic light.  Extending this in a small way to bicycles is an excellent idea.  Of course there must be alternative provision for more local traffic, just as there is for motorists.  The Mayor is to be commended for a Vision that would make cycling more attractive for the fast and the less fast.  That and his specific assurance that nothing he does will remove the freedom of the cyclist to use any road she chooses confirms he sees no need to 'tame' the cyclist.

Hooray for Boris, now I wait with expectant interest to see what gets constructed and when.

Imperial Winter Series Race 12

Just above freezing and wet, started with drizzle but then soaking but little wind.  The 3rd cat race kept together this week with the bunch sprint taken by William Goulbourne from Neil Wass with Jacek Reder's 3rd place winning him the series..
Just under an hour's racing at an average of 25.2mph.  My max of 31.9 was nowhere near sufficient to keep up with the bunch sprint at the end.

Jacek Reder, Greg Wiltshire and Ken Buckley taking the 3rd cat honours presented by Tony Doyle MBE, who earlier described his remarkable comeback from a severe crash in 1988 

So yet another winter series draws to a close.  A huge debt is owed by racers in the London area to the Collins family.  A real family effort and I had not realised until yesterday the full extent to which distant cousins are drawn into this huge undertaking.  As always they run their races superbly and deal with the ups and downs in the very best interests of the sport.

At a personal level I have hugely enjoyed the racing, though I have done fewer of them than in the past 5 years.  It has been perfect for me to dip a toe tentatively back into racing after the traumatic end I had to last season.  I definitely need to work on my (lack of a) sprint but with most of my 'training' done commuting into London, this can be awkward.  The great popularity of the series confirms to me that racing cyclists are spearheading the post-Olympic boom in general cycling.  Within the current welcome initiatives to popularise cycling further it is, in my view, important not to lose sight of the interests of those who wish to cycle fast.

All Party Parliamentary Cycling Group

It was a privilege to appear at the APPCG's Inquiry into 'Get Britain Cycling'.  It was hugely reassuring that 8 Parliamentarians (including as it happens two of the brightest legal brains of their generation) were willing, together with other MPs who attended last week, to devote their time and energy to this important subject.  Much good sense was talked about bringing bikeability into driver training and in reducing speed limits in urban areas with a virtual consensus on what was required (if you leave aside the thorny question of strict liability).  There was a discussion of HGVs and the Police/Mineral Products 'Exchanging Places' initiative which I experienced first hand in November 2011.  One aspect of this that struck me was that it is not only cyclists' behaviour that we should be seeking to influence, but we really need to knock on the head the idea that it is acceptable for lorries to manoeuvre around our streets with blind spots.  The technology is there for all round visibility and we must place the vast bulk of the burden of responsibility on the operators and drivers of such vehicles.  Happily the Inquiry has the written evidence of Kate Cairns with her important 'See me, save me' campaign.
I was a bit of a wildcard as the only witness there to represent myself rather than an organisation and I used (possibly abused) this freedom.  Clearly though, I was invited as a voice on law enforcement and I repeated the line I have often taken on this blog that I would like to see a tougher approach taken by the police against those who endanger cyclists.  Chief Inspector Ian Vincent took my lambast well and assured the Inquiry that roads policing was a priority.  However I found myself unable to understand, still less agree with, his view that action could only be taken against a motorist who had endangered (rather than actually run down) a cyclist if the careless (or dangerous) driving had been witnessed by a police officer.  It is almost as odd as Ms Davenport of ACPO's assertion that she had legal advice that criminal proceedings based upon video evidence were unlikely to succeed.  Mr Vincent did say that original unedited footage would have to be available, which is fair enough, and I am sure generally is available if called for.  By way of conciliatory gesture I was very happy to acknowledge that the I have always found the police to be very receptive when my property rights have been infringed by a thief.  Mr Vincent did inform the Inquiry that Roadsafe had appointed a dedicated officer to review video submissions with a view to prosecution, a step that I certainly applaud (even though it is surely the very least that we could reasonably have expected at the outset) and I acknowledged to be a modest shift in the right direction.  The proof though will be in when a regular stream of bad drivers find themselves with points on their licences.
One thing that did occur to me is that perhaps I should have been there representing the non-cyclist who has the sort of Pauline conversion that we would like now to see in others.  For half my adult life I have been a non-cyclist.  I was rare at my University in not owning a bike, I preferred to walk everywhere.  In my mid 30s, I took up cycling.  Looking back at what induced that; I had a more senior colleague at work with whom I shared a room who cycled and I began to become concerned that I was getting fat.  It finally dawned on me that if my colleague could cycle from Greenwich, reliably arriving in one piece,  I could surely cycle from Kensington.  I tried it in normal clothes on the quietest roads I could find.  Government exhortation one way or another would not have made any difference to this start.   What did make the difference was that I found it a preferable way of getting around than the alternatives.  Having tried it I was surprised at how effective and practical it was as a means of transporting myself around London.  A desire for greater speed and, once I moved home, greater distance and then participation in charity rides led me incrementally to adopt better equipment, clothing and more direct routes and to morph slowly into the cycling/racing nut that I am today.
We really just have to seek to ensure that cycling is a more convenient, more enjoyable, more reliable and cheaper way of getting around than other modes (particularly the car).  For me, the evidence from my very knowledgeable fellow witnesses today reinforced my perception that there are a large number of ways to achieve that.  I am convinced it would be a mistake to focus on one solution to the exclusion of all others.
This is not a report of today's proceedings, I would not be able to do that as well as the journalists and organisations present whose material is already available online.   I  leave with this irreverent thought: looking around Committee Room 12 it was clear to me that the average BMI of the occupants was substantially lower than that of the population at large (and possibly of other Committee Rooms though I did not investigate that).  Lately I am finding that I can hardly turn on my television without seeing the gory detail of another unfortunate person getting a gastric band fitted.  That alone validates my decision 15 years ago to get a bike.  In hindsight of course my deep regret is that I did not do it sooner.

Imperial Winter Series Race 10

Race 10 in the Winter Series on Saturday 26th took place after the thaw.  Indeed it felt positively balmy after recent days as I rode out to the circuit;  5 deg and a stiff breeze from the usual SW direction.    In the 3rd cat race, Ken Buckley (AW Cycles) and Graham Crowe (Twickenham CC) got off the front and did a two up timetrial for about an hour, completely out of sight by the end; an impressive effort with Ken Buckley characteristically taking the sprint.   We were passed only by a break off the Elite race; their bunch was snapping at our heels at our last lap but wisely Comm Richard Collins ordered them to ease off and let us sprint in peace.  A few on the grass on the last bend but all remained upright and I came in comfortably in the bunch this time. 
26.7 miles in 1:03:43.  Av 25.2.  Max 31.4.

Update from Court: CPS v Bhamra

An odd and disturbing case was decided in Solihull Magistrates' Court this week.  The Solihull news today reports that Ichhapal Bhamra was sentenced to a fine of just £35 and unspecified court costs and 3 penalty points after his conviction of driving without due care.
The bad driving occurred on 27th June 2012 and involved a collision with a cyclist, Tom Ridgway, who tragically died from the injuries sustained in consequence of the collision..
It appears that Bhamra pleaded guilty to the charge of driving without due care.  The fact that he was not charged with causing death by careless driving and the extremely light sentence suggests that his plea must have been given (and accepted by the CPS) on the basis that his bad driving had not caused Mr Ridgway's death, or indeed any significant harm.  It is very similar to the sentence (£37 plus victim surcharge of £15 plus costs of £85 and 3 penalty points) given to Levi Rayner, after I insisted that he was prosecuted for careless driving after a very close pass in Hounslow that I filmed last year.  The victim surcharge will have been mandatory in Bhamra's case and the costs are likely to have been of a similar order to Rayner's, so the overall financial burden will have substantially exceeded the headline £35 that was reported.  Still well short of harsh but roughly in line with other cases where the careless driving caused no injury/damage.
The real question is not then the leniency of the bench but how it is that the prosecution accepted a plea on the basis that Bhamra's careless driving had caused no significant harm.  Apparently the CPS took the view that they could not prove that Bhamra's carelessness had caused the original impact but merely that continuing on for a distance of 90 metres with Mr Ridgway on his bonnet, colliding with signs and eventually a tree was careless driving.  They also decided that they could not prove that this 'proveable' carelessness, as distinct from the original collision, had caused Mr Ridgway's death.
Making every allowance for the fact that the details of the original collision did not come out in court and were not therefore reported upon, with the consequence that very little is in the public domain, the CPS charging decision does seem lame.  In the absence of any striking explanation, a passing car should not collide with a cyclist.  This is on the face of it indicative of a lack of due care.  Had the original collision been due to Bhamra's lack of due care, then it could hardly be disputed that that collision caused Mr Ridgway's death.  Even if a conviction of causing death by careless driving was not a certainty it seems to me unfortunate that the facts were not brought before a Court to determine.
Hopefully there will be a rigorously conducted Inquest to explore how the original collision occurred.

COMMENT FROM TOM'S FAMILY
Tom's aunt has been in contact and comments as follows:

"I could not agree more with your assessment.   I am Tom Ridgway’s aunt, I attended the trial and – as I told the prosecuting solicitor – it felt to me as though a back-room deal had been done.  All events leading up to the collision were dismissed without discussion.   The prosecutor replied that he was new to the case that morning and he could not argue the charge, which had already been agreed.  He added that we should complain if we wished to the CPS.

The family is not seeking further punishment for Mr Bhamra, who has lost his job and is depressed and suffering.  He has paid his £150 penalty including costs and, like most reasonable people, understands that he was responsible for the death of a young man who was merely cycling ahead of him on the road.  (Tom, a student, was on his way to Solihull to deliver his CV to New Look in the hope of getting a holiday job.)  It is the law which has failed to us, by bizarrely dividing the event into Before and After Impact.

Although it cannot be proven that the taxi driver was driving carelessly before the accident, the fact that he hit and killed Tom is surely evidence enough that he was driving without due care and attention WHEN he hit him.  The shattered windscreen, the subsequent panic, the death, are all part of a sequence of behaviours which killed my sister’s beloved son.

Many people, including the newspapers, are jumping to the conclusion that sentencing in this case was too light.  But given the charge before them and the fact that Mr Bhamra was not proved to be drunk, drugged or speeding, the magistrates were directed to give the lightest level of fine.  Indeed, the fact of Tom’s body being on the windscreen became a mitigating factor as the driver could not see where he was going, panicked and put his foot on the accelerator instead of the brake.

The point is not that hitting Tom caused Mr Bhamra’s erratic driving, but that Mr Bhamra’s erratic driving killed Tom.  A distinction that would have been made in court if his case had been charged and prosecuted with proper respect for human life."   

Update from Court: R v Evans

A548 near Flint

On Sunday 5th February 2012, at 1238 (broad daylight) Alan Mort was cycling along the A458 dual carriageway near Flint.  He was struck from behind by a Range Rover motor car driven by John Evans.  Sadly Mr Mort died of his injuries.
Today at Mold Crown Court Evans was convicted, on his plea of guilty, to causing death by dangerous driving.  Despite the fact that Mr Mort was in plain view of Evans for at least 20 seconds, Evans claimed not to have seen him before running him down.  Motorists behind expressed astonishment as Mr Mort was clearly visible to them.  He was said to be cycling in a straight line close to the kerb in a fluorescent jacket.  Mr Mort's rear light was found embedded in the front of Evans's Range Rover.  It is not clear from the BBC report whether the light was on but there is no particular reason why it should be in the middle of the day.
Evans was sentenced to 14 months imprisonment and disqualified for 18 months.
The Judge, His Honour Judge Niclas Parry, made some encouraging comments when sentencing Evans.

"He was there to be seen. He was immediately in front of you yet you collided with him"

"The use of the public roads by cyclists was probably now more enthusiastic (sic?)  than ever before, the danger to cyclists had never been under greater scrutiny, they were vulnerable road users.  Drivers have a high responsibility to be aware of cyclists on the road."

Encouragingly, there was no suggestion that cyclists should not be on dual carriageways, and the Judge's comments do suggest that the widespread concern over the needless loss of cyclists' lives is filtering down to Judges and to sentencing decisions.  There is yet further to go, however.  The sentence does continue to reflect the judiciary's continuing reluctance to disqualify obviously incompetent motorists for serious lengths of time.

It is hard to know whether to believe Evans when he says he did not see Mr Mort (would an aggressive motorist admit to having passed deliberately close in these circumstances?).  If true, it does emphasise that sadly kitting yourself out in hi-visibility kit is no substitute for positioning yourself on the road where you will be noticed.  There is no safety in riding close to the kerb in a straight line.  This does not attract the attention of the all too common inattentive driver.

None of this detracts from the obvious and complete culpability of Evans but we can improve the odds in our favour by taking the lane and not in placing our faith in the kit that we are so often urged to wear.