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.

Etape preparation - January 2010. Six months to go.

Really struggling to get off the ground this year.  My plan for doing the Team Quest Reliability Ride today was upset by the weather.  With a very sharp frost and some ice on the roads I did not want to risk a repetition of my fall two weeks ago.  I did, however, venture out for my 3rd Thames Velo Club Run of the month instead.  The 5 Imperial Winter Series races I have done this month at Hillingdon should help with the top end stuff.  Add in a very little bit of commuting to London and I have managed just over 500 miles this month in 30.75 hours on the bike.  Should be easy to build up from that when the thaw comes and as I continue to recover from that spill.  For next month, I hope to get a couple of reliability rides in and, of course, the last two races of the winter series, before 5 days of bliss in Spain.

Imperial Winter Series Race 10 Saturday 30th January

Pictures Lucy Collins

A bright sunny cloudless day with temperatures hovering just above zero with a northwesterly breeze that appeared to be a headwind most of the way around the circuit.  The sunshine brought out a big field for today's race.  I still have a stinging reminder of how painful it is to come off so was more than usually cautious.  I maintained a position towards the front until I punctured.  I felt the rim hit the tarmac on the sharp bend and it wasn't until I reached the apron with my hand up that everyone
had gone by and I found it safe to stop.  A little run across Minet Park back to the finish hut where I swapped my rear wheel for a circuit spare and reentered the race.  My aim was simply to finish comfortably in the bunch and I even started to move up in the penultimate lap before another major collision just ahead caused some sharp braking and loss of contact with the bunch.  I sprinted after them but to no avail.  I do hope those that came down are ok: hurts like hell for a while but at least it is slightly more heroic to come down in a race than on sheet ice.
Av Speed: I cannot say because of the puncture but the 3rd cats did not catch us this week.  [Postscript 24.3mph, source Lance Woodman]

Correspondence with Department for Transport

Here is a copy of an email I sent to the Department for Transport on 28th April 2009, 5 days before Major Rhys-Evans's tragic death and (above it) a copy of the response I received on 7th May (4 days after the tragedy).  Note that the Department focuses its resources on advice to child and teenage cyclists rather than to the vehicle drivers who present the danger.  The car culture runs deep.

Thu 07/05/2009 11:36
FW: Campaign for cyclists?

Dear Mr Porter,


Thank you for your email and your interest in road safety, and my apologies for the delay in responding to your enquiry.

Firstly, let me highlight to you some of the information we already provide which is relevant to your concern about cycle safety and motorists awareness of cyclists. We provide, via the THINK! Education programme, a range of advice, resources and activities to encourage children and teenagers to cycle safely. This includes resources for teachers and parents to encourage them to teach these messages. You can see some examples of this work here - http://www.dft.gov.uk/think/education/early-years-and-primary/. In addition to this the main THINK! website provides guidance and advice on cycle safety (http://www.dft.gov.uk/think/focusareas/cycling?whoareyou_id=&page=Overview) and on the various issues for drivers themselves (http://www.dft.gov.uk/think/focusareas/driving/?whoareyou_id=&page=Overview).

The DfT's THINK! campaigns are developed in consultation with stakeholders and creative advertising agencies. As you can imagine, we have a limited budget available and our priorities are decided by the issues which cause the greatest levels of deaths and serious injuries on our roads, as ultimately our target is to reduce these numbers. This means that a majority of our budget goes on campaigns to reach adults on issues such as drink-driving, speeding, use of mobile phones and wearing seatbelts, as well as campaigns to reach children and teenagers to teach them good road safety behaviour.

Our approach is informed by research into driver attitudes and behaviour which comprises monthly tracking research to measure effectiveness and also creative research with representative samples of our audiences to ensure creative approaches have salience. Therefore we don't accept ideas not developed through our rigorous campaign development process.

With regard to your suggestion for a “share the road” campaign, therefore, I hope some of the above information explains why we are not able to take forward this idea, and also why our campaigns are focused on issues which ultimately have a greater impact in terms of deaths and injuries.

Kind regards,

Dan

Dan Jones
Marketing Unit
Department for Transport
Great Minster House
76 Marsham Street
London SW1P 4DR
www.dft.gov.uk/think

--------------------------------



From: Martin Porter QC

Sent: 28 April 2009 16:47

To: ROAD SAFETY

Subject: Campaign for cyclists?



Dear Sirs,

I write to ask that consideration be given to a publicity campaign directed at motorists to give adequate room to cyclists. I know that you have launched a high profile campaign aimed at motorists to look for motorcyclists. I believe a campaign in relation to the safety of cyclists would also be beneficial.

There are two respects in which many motorists need educating. The first is that the Highway Code requires (rule 163) that at least as much space be given to cyclists as to cars. The second linked factor is that a cyclist is entitled to occupy the lane that he or she is in. The two are closely linked because the motorist who believes that it is safe to pass a bicycle with inches to spare, will also feel that a cyclist adopting the primary riding position, occupying the lane, is holding him up by forcing him to change lane (something which in reality he needs to do to give adequate space in any event.)

The benefits of such a campaign would be not only greater safety for cyclists (both because passing margins would increase but also because aggression from motorists who are better informed would decrease) but also a reduction in the most powerful disincentive to cycling, a perception (often greater than the reality) that cycling is dangerous. Although in reality the greater risk to cyclists may be at junctions, it is the close passing motorist that most intimidates cyclists, often leading to riding on pavements with greater risks to cyclists and pedestrians or leading to riding too close to the kerb.

In my professional role I have acted at an inquest for the family of a cyclist who died when a motorist passed too close on a major road leaving insufficient room when she misjudged the intended path of the deceased.

In a personal capacity I am often passed far too closely, in particular on a dual-carriageway where many motorists are reluctant to cross to the offside lane to pass notwithstanding that the offside carriageway is clear. I recently experienced aggression from an HGV driver who deliberately forced me into the side of the road.

A ‘share the road’ campaign emphasising the cyclist’s right to use the carriageway and the motorist’s obligation to pass wide, very wide, is urgently required in order to save lives and to encourage cycling.

I hope this will receive serious consideration and I look forward to your response.

Yours sincerely,

Martin Porter

Riding on dual carriageways

Riding on dual carriageways is not always easy. My own technique is to travel well out into the nearside carriageway so that you are well within the area that motorists scan long before they reach you. Most motor traffic will pull out into the offside (or next) lane. However you do need to look back at every vehicle as it approaches, though at night there is the additional visual cue of your shadow in the nearside headlight. Once in a while a motorist who has not looked ahead will come up behind; you then need to check that the vehicle has slowed and is indicating. If not (and this happens maybe once in 100 vehicles or so) you need to move smartly to the offside just before the overtaking vehicle reaches you so that the one foot they have allowed you becomes 5 feet. (I then have been known to have a word with them at the next lights and on one occasion, earlier this week, the elderly motorist concerned really did mend his ways and earn a wave of thanks when he then did a textbook pass; of course on other occasions they drive straight at me more determinedly than ever after I have challenged them).  My experience is that HGV drivers almost always move early into the other lane; on the thankfully rare occasions they don't (happened yesterday) I have to move over and brake because they will cut in early.
This may not be for everyone and I can appreciate it cannot be done whilst time trialling but it works for me so I thought I would pass it on.  Remember folks; never ride in the gutter.

Dear Chief Crown Prosecutor - An open letter

Dear Mr Crowley,

R v Hart Peterborough Crown Court 27th January 2010

I write as a keen cyclist with a particular interest in the law as it relates to cyclists.

I have learnt of the conviction of Ms Katie Hart of the offence of causing death by dangerous driving on the A1 near St Neots last May 3rd when she ran down Major Rhys-Evans.

As a consequence I want to thank your office, the relevant crown prosecutor and the police concerned for the attention that has been given to this case. I particularly congratulate you for the principled and, as the jury have now demonstrated, correct decision not to accept a plea to the lesser offence of causing death by careless driving. This is a significant step towards increasing the safety of cyclists on the roads.

I am particularly anxious to give credit where it is due as I have been critical of decisions taken by other offices of the CPS not to prosecute drivers who have killed cyclists; particularly in the cases of Marie Vesco in Sussex and Anthony Maynard in Oxfordshire, both killed in summer 2008. It would, I suggest, be useful if you were able to disseminate your experiences from the Hart case to your colleagues throughout the country. The reassuring truth is that juries can and do recognise bad driving when the evidence is put before them. All too often, it appears, the evidence has not, in past cases, been put before a jury because of an unwarranted fear that they will not convict.


Yours sincerely,

The car culture - a step in the right direction

This afternoon a jury at Peterborough Crown Court has found Katie Hart guilty of causing death by dangerous driving. The death was that of Major Gareth Rhys-Evans, a keen cyclist who was, at the time of the tragic accident at 0835 on Sunday 3rd May, taking part in a 25 mile Time Trial on the southbound A1 where it by-passes St Neots, Cambridgeshire. Weather conditions were good yet Ms Hart claimed not to see Major Rhys-Evans until she ran into him. She also claimed not to have seen the competitor behind, whom she had just past with leeway of around one foot.


Hart had admitted the offence of causing death by careless driving. In the aftermath of the collision she is reported as having said to the police that “it was just one of those things” to which she added the statement, in defiance of all known laws of physics, that he “came out of nowhere”. To their credit the police and the CPS were not (on this occasion) content to treat the collision as “just one of those things” and, to its further credit, the CPS refused to accept Hart’s plea to a lesser charge and pursued the more serious offence of causing death by dangerous driving.

Following the conviction His Honour Judge Nicholas Coleman (adjourning sentence for a pre-sentence report, as the law requires) warned Hart: "You face a prison sentence. The only question is how long."

Whilst acknowledging that Ms Hart did show some signs of shock and concern when it was all too late, and without wishing to be vindictive for its own sake, it is appropriate to give the authorities (whom I have lambasted in my earlier post 'Cycling against the car culture' in relation to other tragedies) credit for a job well done. Ms Hart will have significant time to dwell upon how unlucky she has been in that if she had missed Major Rhys-Evans (as she did the other competitor) by one foot her lethal lack of attention and/or nonchalance may have gone unpunished. However her misfortune is nothing compared to that of the Rhys-Evans family and there is hope that the message will go out that cyclists are to be passed with care (or else) and that riding on dual carriageways in particular may become a less hair-raising experience.

Ms Hart is only 19 years old and has therefore only recently passed a driving test. Perhaps some thought as to whether the test is sufficiently rigorous on the safe passing of cyclists is in order.

I will post the open letter I intend to write to the Chief Crown Prosecutor in Cambridgeshire.

Imperial Winter Series Race 9 Saturday 23rd January

I look in some pain!  Lucy Collins's photos

Still feeling a bit battered after Sunday's spill, but I have been aiming to do all of this winter's races so turned up anyway.  Temperature above freezing and dry which made a pleasant change.  I spent too much of the race at or near the back and on the last lap the bunch was flying and was starting to pull away from me anyway, when some incident occurred on the sharp bend which forced me to brake and slow losing contact with the peleton for the last 3/4 of the lap.
Average speed 23.5 mph.

Etape preparation

It is the Tourmalet for this year's etape and since I enjoyed it so much in 2008, I cannot resist doing it again on the 100th anniversary of its first inclusion in the Tour de France (when mountain roads were tracks, cyclists were superheroes and organisers were "assasins").

Time to begin some preparation then, which I shall sporadically chart on these pages.

The Entry Form.

This is one of the trickiest aspects of the etape.  The etape rules require a medical certificate stipulating that competitors are "fit to take part in cycling races".  Until recently production of a BC racing licence was an acceptable alternative, but the organisers have wised up to the fact that anybody can obtain such a licence and have become fed up with their ambulances, laid on for accidents, being increasingly filled with those whose cardiovascular systems were never likely to see them through a mountain stage.  A quick call to my GP surgery was met with news of a £100 fee to stamp my medical certificate.  This seems to me to be a little steep.  If I were unfit, unwell and a frequent attender at my GP, he would provide me with Med3 certificates indicating what I cannot do, all as part of the service.  Prevention is a lot better than cure.  Wouldn't it be great if certification of what we are fit to do was provided as part of the service constituting a small encouragement towards an active lifestyle steering us away from obesity, diabetes, heart disease and numerous other conditions that it would cost the NHS dear to treat?

Rides

The easy part then should be getting the miles in.  I was to start yesterday in a modest way with the Wycombe flat 50 reliability ride.  However for those of us who thought the thaw had arrived with the heavy rain on Saturday a real shock awaited.  The roads around Wycombe had indeed got very wet but then had frozen overnight.  I was one of many riders to come a cropper on the black ice and as I type I still have paraesthesia from elbow to finger tips and a square inch of skin missing from my hip.  The event has been postponed for a week as have my plans to get in some miles.

On the positive side, the Thames Velo team of 11 including me have had our entries accepted for the Fred Whitton Challenge in May and I have been using snowbound time to organise the club's Spanish Training trip in February.

Imperial Winter Series Hillingdon Race 8 Saturday 16th January

Lucy Collins's photos

Well the big freeze which had caused the cancellation of Race 7 has finally given way to a very wet thaw.  I sat in the front passenger seat of my clubmate's car until 20 minutes before the off, watching the rain lashing down.  I was not, I think, the only one on the start line who had not been on the bike at all for two weeks.  Furthermore, I do not possess a turbo trainer and do not think I would ever use one.  Accordingly the only exercise for me had been the odd trudge through the snow to the station and raising a glass to my lips perhaps slightly too frequently at last night's Thames Velo Club Dinner.  The field was predictably enough, given the weather, a relatively small one (come on you fair weather cyclists Lucy needs your entry fees for her prize fund).
This week I was much too busy moving my glasses from the bridge of my nose to the end or somewhere in between, so that I could see something, to think about remaining near the front.  The pace for most of the race was fairly conversational with the odd acceleration when someone way up at the front was presumably being chased back but I was far too misted up to be able to relay any detail.
After about 30 minutes the 3rds caught us - the relatively small fields in both races helped them to go by without too much trouble.  Then we slowed right down on the command of a cold wet sprinter who didn't want to go 'round and round' for longer than strictly necessary.  Sure enough there was soon sufficient gap between the two races for the 5 to go lap board to be put out and the pace quickened and I found myself at the back again.   After the bell there was a surge down the back straight which left me struggling to remain in contact.  I only succeeded in keeping up with a wheel ahead that was itself struggling to remain in contact.  So I came in a few seconds after the bunch today, but hopefully this time before Doug turned the camera off.
Average Speed 23.0mph

Imperial Winter Series Race 6/12

Cold but a lot less wind today as around 40 lined up for the start.  The absence of a strong headwind made it more promising for break aways and a few tried it.  The best effort from my vantage point was from Gavin Percy of DNA Cycles who accelerated away from the pack half way through the race as though he really meant it.  He was joined by two more.  Another with me on his wheel tried to make it 5 but the bunch were closing fast so the orginal 3 sat up.  The 3rd cats did catch us today; again it took a while for them to squeeze by and we then coasted around for a couple of laps to create enough space for us to sprint into and while the few who had sailed into the 3rd cat bunch were ordered back.  There were perhaps as a result too many fresh legs for the sprint.  On the last lap at the back straight two riders were forced off the track onto the grass bank but demonstrated sufficient bike handling skills to remain upright.  Further trouble came in the closing sprint with a pile up towards the rear of the bunch just in front of me.  There was talk of a tyre burst but I heard the loud crack or bang during the pile up not just before it.
Frighteningly we are now already half way through the series.  I hope to do them all this year.
Average speed 23.3mph today but this includes the neutralised period to create the gap between the races.  Proper racing was 21.6m in 54m22s, equivalent to 23.8mph.

Imperial Series New Year's Day

Another cold day with a wind; this time from the North giving a stiff headwind on the home straight.  Around 30 on the start line.  This time very stop/start pace with the speed sometimes reducing to that of a club run (with riders freewheeling down the straights!) but winding up greatly whenever I (or anyone else) tried to get away.  This time a rider did come with me and urged me onto his wheel but I was incapable of maintaining his speed.  (New Year's Resolution: I really must work on short efforts).  The headwind led to a bunching on the final straight so with loads boxed in and shouting I simply follwed a wheel at the rear and probably came in 20-somethingth.
Average Speed 23mph.