Whilst training for Ride London this year, I decided to join a whole load of cycling groups on social media. Hurrah! I had found a rare slice of social media that was both encouraging and supportive as well as having a wealth of helpful information. A rare sanctuary hidden away from people shouting at each other about Brexit.
One morning though there was a post referring to an article about a civil Court case that up until then had moved through the Court system with little fuss and no coverage whatsoever. The facts of the case were that on 20th July 2015 the Claimant was crossing a street in London along with other pedestrians as the Defendant was cycling northbound over London Bridge. He cycled through a green light at a busy junction and ahead of him the Claimant along with a number of other pedestrians were crossing the road. There was then a collision between the cyclist and one of those pedestrians who in the eyes of the writer was on her mobile phone and not paying any attention. The decision was a 50-50 judgment, ie the Claimant was entitled to 50% of her claim. Furthermore the cyclist did not have insurance so was facing financial difficulties in order to meet the judgment.
Cries of “outrageous!” went up. ‘How can this be? The world has gone mad!’ ‘Everyone is against cyclists’. ‘Wouldn’t happen if this was a driver!’
Having been in this area of law for quite a few years I have become quite accustomed to the media, shall we say, not providing a particularly good balance in this area. Donning my tin hat I therefore waded in suggesting to others that until the actual facts of the case were made known, it might be worthwhile just suspending any outrage as the reality may be different to how it had been reported. I retreated not long after following a gentleman sending me numerous links to tragic accidents involving cars where the drivers had got away ‘Scott free’. These of course were all criminal cases.
Helpfully though, the barrister representing the Claimant, Aneurin Moloney, very helpfully provided not only his note of the judgment of the case but also a note about the proceedings. This provided further information suggesting the following:
1. The cyclist knew that the point where the pedestrians were crossing was not controlled by a red/green man.
2. On seeing the pedestrians, the cyclist sounded his air horn which cleared a path.
3. Upon so doing, the cyclist continued to accelerate.
4. The Claimant, who was on her mobile phone at the time, then stuttered and retreated towards the central island rather than continuing on to the pavement.
5. The cyclist shouted a warning, tried to swerve but could not avoid the Claimant and there was a collision.
So whose fault should it be? The judge concluded the following:
1. The cyclist owed a duty to other road users to drive with reasonable care and skill. He had anticipated all the pedestrians would continue on to the pavement. The Claimant was established on the road.
2. The cyclist made a judgment call that it was clear to proceed when in fact there were pedestrians in the carriageway. He had some understanding that when pedestrians are established on the road they must be given way.
3. As a result he fell below the standard to be expected. A cyclist must be prepared for the pedestrians to behave in unexpected ways.
4. The Claimant’s conduct was also an important contributory factor. She was on her phone and she turned and went back. If she was crossing the road without looking then she must have equal culpability.
In this respect the Judge is saying that the onus on the cyclist is no different to that of a car driver, in that it is reasonable to expect them to respond to what happens in front of them, even if it is not what they are expecting. In this instance there was a pedestrian in the road crossing, with no idea that a cyclist was travelling towards her at 20mph. He was not entitled to think that when she finally saw him she would just continue onto the pavement like the other pedestrians. Whilst I would love to ensure a clear path every time I go out on my bike, I know that drivers or pedestrians often do daft things. This judgment says that if I see that and I have the opportunity to ensure there is not an accident, then I am under a duty to do so.
What we need to remember here is that just like cyclists, pedestrians are vulnerable road users. In fact relative to cyclists they are even more vulnerable. So in this case, the vulnerability of the pedestrian trumps that of the cyclist due simply to the fact that a cyclist is going to do more damage to the pedestrian than the other way round. It is no different to a cyclist being hit by a ten tonne box of steel. So cyclists should actually take a lot of comfort from a decision like this.
It does however throw up arguments of insurance. The cyclist in this case was not insured. Whether or not the crowdfunding page set up in his name covers all his costs remains to be seen, but clearly this is not a position many would like to find themselves in. My personal view is that I am totally against mandatory legal insurance for cyclists. We should be doing everything in our power to make it easier to cycle not harder. Getting people out of their cars and on to 2 wheels is good for their physical and mental health, and allows more room on the roads of those who have no option but to drive. We need more protected cycle lanes and a change in attitude about who is responsible for the safety of cyclists. That being said, I am insured and that will remain the case. I will also wear a helmet, although that’s a blog for another day. Maybe I should wear it whilst writing it. Now there’s a thought.