Under the Law Reform Act 1945, contributory negligence ceased to be a complete defence in common law, instead operating as a partial defence whereby the courts can distribute loss between the parties involved. Section 1 (1) of the act states that ‘where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.’
Below are a number of examples where contributory negligence has been raised in relation to cycling accidents and summaries of the court’s findings in each scenario.
In the case of Rickson v Bhakar , a cyclist was taking part in a time trial and keeping his head down in order to lower his drag and increase efficiency. The court held that if he had looked up early enough to see the road in front of him, he would have had four seconds to slow down and avoid the accident. The van driver who crossed in front of the cyclist was held primarily liable and a finding of 20% contributory negligence was made against the cyclist.
Insurance companies have been known to argue that a cyclist should be partially at fault when being ‘doored’ for driving in the door zone. They claim that cyclists should know that a parked car might open its door at any moment and so they should ride a safe distance away in case this occurs. This argument is flawed for a number of reasons, including the fact that it is the car driver’s responsibility to ensure it is safe to open the door, not just to avoid a cyclist, but in case a pedestrian or another car is coming up behind them. In busy cities, cyclists will be wary of riding too far into the road away from the door zone for fear of being in even more obvious danger. The argument for cyclists not driving within the door zone was thrown out by the court in Malasi v Attmed .
In the case of group riders, where cyclists ride at speed in tight formation just a matter of inches from the wheel in front of them, insurance companies may quote rule 126 of the Highway Code which states that every road user should maintain a safe stopping distance. There is clearly not enough stopping distance for group riders travelling at speed in the event that the rider in front brakes suddenly. In Nicol v Kupinski , experienced cyclists were riding in a group when the front rider braked heavily to avoid a lorry pulling out from a parked position. Unfortunately the claimant was unable to stop in time before colliding with the rider in front of her. The argument for contributory negligence was rejected and the defendant was found to be 100% responsible for the accident.
In the case of McGeer v Macintosh , a cyclist was found to be 30% contributory negligent for cycling up the side of a stationary heavy goods vehicle that was straddling two lanes, intending to turn left. The judge noted the claimant would not have seen the lorry indicating as she was undertaking at the time, and the apportionment reflected her vulnerability as a cyclist versus an HGV. The decision coincided with an ongoing debate around the responsibility of cyclists and HGV drivers, particularly in London. From September 2015, the London Safer Lorry Scheme has required all HGVs entering the capital to fit potentially lifesaving mirrors and safeguards, including sensors and alarms, to detect the presence of cyclists in their blind spots.
Perhaps one of the most widely debated examples of contributory negligence is in respect of wearing, or not wearing, helmets. This subject is too vast to cover in this summary article, but it is a widely held view that the case of Smith v Finch , where the judge found that the claimant’s failure to wear a helmet was a contributory causative factor, was probably the wrong decision. In mild traumatic brain injury cases the argument that an extra inch of polystyrene would, on the balance of probabilities, have made a difference is a tempting one, but is actually difficult to prove at an engineering / scientific level and ought to be resisted. In practice, whilst insurers will often raise the argument in negotiation, they are reluctant to take the point to trial for fear of losing it.
The law relating to cycling accidents is unique and requires specialist knowledge and understanding of the intricacies of the sport and past time that is different to any other. Penningtons Manches’ personal injury team has extensive experience of working with cyclists who have been involved in accidents to recover substantial damages to provide for their rehabilitation, care requirements and loss of livelihood.