Personal Injury Compensation Claims Relating to Cycle Accidents in Bexleyheath, Kent, London & South East
Cycling has become increasingly popular during the course of the last few years and as a result of the Covid-19 pandemic, people have been encouraged to cycle to work where possible and of course cycling is a carbon neutral form of transport. The Highway Code recommends that a cyclist should wear a helmet which conforms to current regulations, be the correct size and securely fastened. It is surprising to note that whilst it is a criminal offence not to wear a crash helmet when riding a moped or motorcycle and an offence not to wear a seatbelt when driving, the failure to wear a cycle helmet has not resulted in many compensation awards for civil claims being reduced as a result of contributory negligence.. In the case of O’Connell v Jackson (1972) a moped rider who failed to wear a crash helmet had his claim for injury compensation reduced by 15% as a result of contributory negligence. In the case of Smith v Finch (2009) a cyclist who was not wearing a cycle helmet was involved in an accident involving a motorcyclist and sustained a head injury. The defendant argued that there should have been a reduction due to contributory negligence, however the court made no deduction as the defendant had failed to provide any evidence that the claimant’s failure to wear a cycle helmet contributed to his injuries.
In the case of A v Sharrock [2001] WL UK 534 a fourteen year old cyclist was hit by a camper van. The claim failed as the camper van driver was held not to be liable for the accident in the civil claim but the judge commented that if the cyclist’s claim had been successful, he would not have made a finding for contributory negligence because of the failure to wear a cycle helmet. In the case of Phetheon-Hubble v Coles [2012] EW CA CIVA 349 a sixteen year old cyclist who was cycling at night without lights fitted to his cycle was hit by the defendant’s vehicle whilst he was cycling on the pavement. The claimant sustained a severe brain injury. The court concluded that the use of a cycle helmet and lights fitted to the cycle would have made no difference to his injuries as he was cycling on the pavement at the time and the severity of the impact speed which was over 30mph meant that the cycle helmet would not have provided any significant protection at that impact speed. In the case of Sinclair v Joyner [2015] EW HC 1800 QB the court made no deduction for contributory negligence where the claimant wasn’t wearing a cycle helmet as the defendant had failed to prove that the claimant’s injuries would have been made worse as a result of the failure to wear a cycle helmet and a deduction for contributory negligence was made on other grounds unrelated to the cycle helmet.
In the case of Caps v Miller [1989] 2 ALL ER 333 a motorcyclist sustained severe head injuries whilst wearing a motorcycle helmet that had not been correctly secured with the strap fitted to the helmet. The court made a deduction for contributory negligence of 10%, however the risk of severe head injuries is much higher as motorcyclists will inevitably be travelling at higher speed and motorcycle helmets provide much better protection against severe injuries than cycle helmets. In the case of Drinkall v Woodhall [2003] EWCA CIV 1547 the cyclist was not wearing a cycle helmet and a deduction for contributory negligence of 25% was made, however it wasn’t clear from the judgement whether all that deduction related to the failure to wear a cycle helmet. In the case of Reynolds v Struct and Parker [2011] EW HC 63 QB a cyclist was participating in a cycling race organised by his employers and sustained a head injury. He was not wearing a cycle helmet although helmets were available to participants. The impact speed was held to be below 12mph and the court concluded that given the low speed of the impact, a cycle helmet would have reduced the severity of the head injury. The court made a deduction for contributory negligence of two thirds but that was based on the claimant’s reckless actions during the race as well as his failure to wear a cycle helmet so the apportionment of the deduction wasn’t stated by the court.
The design specifications of UK cycle helmets are in accordance with BSEN 1078 so the maximum impact speed in testing cycle helmets is 12.1mph. The protection offered by a cycle helmet dramatically reduces above that speed, therefore a deduction for contributory negligence for failure to wear a cycle helmet would be unlikely to be made by a court where the impact speed was in excess of 12mph. and in many cases no deduction for contributory negligence is made despite the impact speed being less than 12mph.
It should of course be noted that cycle helmets provide far less protection against head injuries than motorcycle crash helmets and some medical experts maintain that they only provide a degree of protection in very low speed impacts.
The Highway Code also requires cycles to be fitted with front and rear lights and to date, I am not aware of any court decision where damages have been reduced where there was a failure to display lights which is surprising. The Highway Code also requires cyclists to wear light coloured or fluorescent clothing to make cyclists more visible to other road users but again there are no court decisions stating that a cyclist’s compensation award should be reduced as a failure to do so.
There are a number of published case authorities where compensation claims for cyclists have been reduced as a result of contributory negligence. In the case of Tobias Phethean-Hubble v Sam Coles (2012) the judge concluded that the accident was caused by the car driver’s excessive speed when a cyclist turned out from the pavement into the road in front of the car driver resulting in an accident. The court initially reduced the cyclist’s compensation claim by one third as a result of contributory negligence. The car driver’s insurers appealed and the Court of Appeal applied a higher deduction of 50% to the cyclist’s claim because the court concluded that although the cyclist was under the age of 18, there was no reason to treat him differently to an adult, therefore the cyclist was equally to blame for the accident. In the case of Rickson v Bhakar (2017) a cyclist was involved in a serious accident when he was taking part in a cycling time trial on a dual carriageway. He collided with the rear of a white van and suffered serious injuries which left him paralysed. The defendant driver had been making a right hand turn at a designated gap and thought his path was clear. The driver admitted negligence but claimed that the cyclist was partly to blame for the accident. The driver stated that the cyclist should have noticed his van and kept a proper look out. The weather was dry with good visibility. The driver agued that the cyclist had been forty metres away when the van started to turn and had ample time to slow down. A witness confirmed that the van stopped for about four seconds before making the turn. The court held that although the cyclist didn’t create the hazard, he should bear some of the blame for the accident and the court reduced his compensation award by 20%.
In the case of Patel v Edwards (1970) the cycle stopped at a crossroads and wished to turn right into a minor road. The cyclist saw a car signaling to turn left and slowing down. The cyclist rode to the centre of the road to make his turn and as he did so, the cyclist overtook the car which had been turning. A motorcyclist ran into the cycle knocking the claimant onto the pavement. The trial judge held that the motorcyclist and cyclist were equally to blame and the cyclist was only awarded 50% of his damages. The judgment was appealed and the Appeal Court concluded that the trial judge had not given sufficient weight to the fact that the cyclist was moving in front of a substantially stationary car across a main and important road. The court concluded that anyone making such a move must naturally take care to see that he doesn’t get into the path of other traffic. The cyclist’s compensation award was reduced and he only received one third of his damages as a result of contributory negligence.
Elson v Stilgoe {2017] EW CA Civ 193. In this case a cyclist was cycling on a single carriageway road with a friend. The cyclist was overtaking a line of stationary traffic and then manoeuvred around a puddle on the opposite side of the road where the defendant was driving. The defendant collided with the cyclist when the cyclist was on the defendant’s side of the road. The cyclist’s compensation claim was dismissed by the court. The court held that the driver had been driving properly and at an appropriate speed. The cyclist appealed the decision but the Court of Appeal upheld the judgment. The car driver had been driving properly and the cyclist had veered into the path of the car driver without good reason and the car driver was not at all to blame for the accident.
McGear v MacIntosh [2017] EWCA Civ 79. In this case the defendant’s lorry was stationary at traffic lights and was indicating to turn left. It was straddling two lanes, one for turning left or proceeding straight on and the lane for traffic turning right. The cyclist came up from behind the lorry on a downhill stretch of the road and collided with the lorry as it was turning left. The court held that the cyclist should have been visible in the lorry driver’s nearside rearview mirror three seconds before he started to move off at the junction, therefore he should have seen the approaching cyclist, however the cyclist was partly to blame for overtaking the lorry on the inside. The cyclist’s claim succeeded at trial but was subject to a deduction for contributory negligence of 30%.
Malasi v Attmed [2011] EWHC 4083QB. In this case the cyclist cycled through a junction against a red light. The court held that if the cyclist had reduced his speed by braking after he crossed the junction he would have seen the approaching taxi and had time to brake. The taxi was however travelling too quickly and was exceeding the speed limit. The taxi was travelling at between 41-50mph in a 30mph zone. The court held that the accident was primarily the cyclist’s fault for failing to comply with a red traffic light and failing to apply his brakes in time to avoid colliding with the defendant but the defendant was partly to blame for travelling at an excessive speed and therefore the court awarded compensation to the cyclist subject to a deduction for contributory negligence of 80%.
Nichol v Kupinski [2017] SC EDIN 71. In this case the claimant was part of a group of cyclists who were travelling at speed in tight formation only a few inches from each other, therefore they had not complied with guidance given in Rule 126 of the Highway Code. The court held that there was insufficient space between the cyclists for the claimant’s cyclist to avoid colliding with the rider in front of her when a lorry unexpectedly pulled out from a parked position whilst the cyclist in front was overtaking the lorry. The claimant’s claim failed as the court concluded that the cyclist was 100% liable for the accident.
Lamoon v Fry [2004] EWCA Civ 591 Court of Appeal. In this case an eighteen year old cyclist was on the wrong side of the road at the time of the accident as the cyclist had cut a corner. The cyclist collided with the defendant driver who was travelling at about 40mph which was considered to be too fast. The cyclist’s compensation claim was successful but subject to a deduction for contributory negligence of 60%. The decision was appealed to the Court of Appeal who upheld judgment and noted that the decision was on the generous side of the cyclist.
Clenshaw v Tenor [2002] EWCA Civ 1848 CA. In this case the claimant was in a cycle lane overtaking slow moving traffic. The defendant lorry turned left into a petrol station and collided with the cyclist. The lorry driver had signalled before turning. The court held that the cyclist failed to see the signal, the cyclist was adopting a racing position on his bike at the time of the accident with his head looking down, that’s why he hadn’t seen the lorry indicate. The lorry had almost finished his turn before he looked up, by which time it was too late to avoid the accident. The court concluded that both parties were equally to blame for the accident. The decision was appealed and the Court of Appeal upheld the decision but stated that the decision had been generous to the cyclist.
I have dealt with a large number of cycle accident claims over the years and in some of the cases, cyclists have suffered serious injuries and have received substantial compensation awards, therefore where there is a deduction for contributory negligence, cyclists can still receive substantial awards. It should also be noted that even where a deduction is made for contributory negligence, the cyclist is entitled to recover a similar contribution towards their costs and expenses from the other party’s insurers, therefore even if the cyclist is partly to blame for the accident, it is always worth considering making a claim.
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