EWJ June 2024 web - Journal - Page 40
A Cyclist’s Crash Course
in Contributory Negligence
This case review was authored by Tim Lennox, Senior Associate and Francesca Pozzo, Trainee
Solicitor - www.kennedyslaw.com
The Scottish Court of Session has clarified cyclists cannot assume the highway code applies to public
paths. Rather, reasonable behaviour and observation must prevail..
Background
The action arose from a cycling accident which took
place on 26 August 2019. The matter came before the
court for a four day hearing to determine liability
between the parties.
Comment
Much focus of each party centred around the
mechanics of the accident, to uncover who had been at
fault in terms of utilising the path within the remit of the
highway code. This was ultimately stripped down to the
fact that the pursuer could have easily been “a child
running out excitedly from the NCR75 junction”.
The accident took place at a junction of two converging paths, which both parties were familiar with and
had cycled before. The pursuer turned onto the path
and collided with the defender.
The highway code cannot be lifted and laid onto
public walkways, and an assumption cannot be made
by cyclists that they are entitled to clear passage on
their perceived ‘side’ of the path, nor the right of way
afforded as if they were travelling on the road.
The pursuer submitted that the highway code
applied. He held that the defender had, in an attempt
to overtake another cyclist, not completed the manoeuvre and had been on the wrong side of the path
when the pursuer exited the junction and joined the
main path. The pursuer argued that the defender had
breached the highway code.
The defender argued that the pursuer had come out
of the junction at speed and in a “split second” leaving
no time to react or stop safely. Further, the defender
stated that the pursuer was not in control as he was
utilising “aerobars” preventing reactive usage of his
brakes. In addressing the highway code, the defender
asserted that he had right of way, and that the pursuer must give way to the main path when exiting the
junction.
Cyclists should be alert to hazards and allow time to
react to them. Failure to act reasonably by adapting
one’s speed to the environment and failing to observe
surroundings will likely result in a finding of contributory negligence, as was the case here.
ANALYSIS
FCIR
EXPERTS IN
COLLISION
INVESTIGATION
The pursuer considered that the majority apportionment of liability lay with the defender, suggesting the
figure of 75%. The defender denied liability in full
with a secondary position that he would bear a token
10% portion.
SPECIALISTS IN THE ANALYSIS
OF ROAD TRAFFIC COLLISIONS
Decision
Lord Sandison narrowed the issues cleanly in stating
that public paths, while available for cyclists to utilise,
do not mimic roads in that other users of such walkways cannot be assumed to be observing such rules.
They are for all to use in any behaviour they deem
appropriate, within reason and without hierarchy.
Providing tailored solutions for the
investigation of incidents involving
road users of all types
COLLISION RECONSTRUCTION
Both cyclists were found to have been travelling at unsafe, excessive speeds and neither was exercising reasonable care to observe their surroundings – especially
a junction of which they had prior knowledge.
VEHICLE EXAMINATIONS
EXPERT WITNESS
The pursuer failed to take reasonable care for his own
safety and it was against this background that he was
held 50% responsible for his own loss, injury and damage under section 1 of the Law Reform (Contributory
Negligence) Act 1945.
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JUNE 2024