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.

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.

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.

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.

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