Tuesday, 13 September 2016

Is driving a right or a privilege?

For many in this country, driving is a rite of passage for all adults and is of vital importance as a tool for independence. This is particularly pronounced outside of the cities, given the lack of regular local buses in many parts of the country. Many require the use of a car to get to work or take children to school and it is understandable that people find it difficult to lose the independence that driving gives them. My father recently had to give up his driving licence due to the progression of his Alzheimer's disease and he has found the loss of liberty deeply unsettling.
As so many rely so heavily on the use of a car, perhaps driving should be treated as a right rather than a privilege, to be included alongside the right to life and freedom from torture in the Human Rights Act (or Theresa May's preferred British Bill of Rights). Most motorists drive responsibly, and treating driving as a right is not normally an issue. The problems arise with how we treat drivers who show a complete lack of regard for other road users. If the dangerous are permitted to drive then that affects the safety of us all.
Last July, James Gilbey was run down on a pedestrian crossing by Majid Malik and Kaiz Mahmood as they raced their cars at twice the speed limit. The drivers were given eight-year jail terms for death by dangerous driving (with parole after 4 years). Major Richard Gilbey, the father of James, has asked why those who kill with a vehicle are treated so leniently. "Why does it have to be death by dangerous driving? If I was to shoot someone, the charge wouldn’t be death by dangerous use of a gun, it would be manslaughter, or worse."
Others questioning the penalties given to motorists are the family of Lee Martin, a cyclist who was killed by Christopher Gard last August. Gard was this week convicted of driving whilst texting and was sentenced to nine years in prison. It was not the first time the driver had been caught driving whilst using his phone. It was the ninth.
The family expressed great disappointment at the leniency of the court in dealing with the driver's prior offences, saying:
"Had the legal system and the magistrates treated the defendant’s previous persistent offences seriously then our family would have been saved this horrible outcome…The law needs to be changed, and sentencing for these offences needs to changed, to help prevent it happening to someone else’s family."
In spite of the extensive convictions for driving offences, and having been found guilty of causing death by dangerous driving, the killers of James Gilbey and Lee Martin were not banned from driving for life. Gard was banned from driving for 14.5 years and Malik and Mahmood could be driving again in 10 years.
Dennis Putz is one of a tiny number of drivers who have received a lifetime ban. He killed 39 year old cyclist Catriona Patel in June 2009 whilst driving a lorry whilst over the drink drive limit and talking on a mobile phone. Putz already had three convictions for drink driving and three for reckless driving as well as twenty convictions for driving while disqualified. Despite the flagrant disregard for other road users he was still permitted to drive an HGV around central London. It was only after the death of Catriona Patel that Putz was given a lifetime driving ban.
It seems that driving is treated by the law as a virtually inalienable right, and motorists are permitted to use the road despite being dangerous on any reasonable measure. Whilst this is allowed to continue, vulnerable road users will keep paying the price for the right of the dangerous to drive. The message to the victims and families of those maimed and killed by dangerous drivers is that travelling in safety is a qualified privilege which comes second to the right to drive.

Friday, 12 August 2016

The law for cyclists injured or killed by lorries

The continued lack of prosecutions of lorry drivers for causing the deaths of cyclists has been very frustrating. Martin Porter QC recently called into question the efficacy of jury trials for motorists accused of offences such as dangerous driving or causing death by careless driving. This is due to jurors being too ready to acquit drivers for what may be perceived as momentary lapses of concentration, such as in the trials into the deaths of Ying Tao and Janina Gehlau.

Whilst the criminal law appears to be stacked against cyclists, the law in civil cases is a little more promising. I have acted for a number cyclists injured by left-turning HGVs. However, most cases settle out of court so there have been few relevant judgments to bring clarity to the law in this area. One recent relevant case is Collette McGeer v Robert Macintosh (2015).

The case

In brief, an HGV driver (Macintosh) had stopped at the set of traffic lights shown in the image below. This is the junction of Whitby Road and Cromwell Road in Ellesmere Port.

There were three lanes: the left hand lane was for traffic going left or straight on, the middle lane was for traffic turn right and the right hand lane was for traffic coming from the opposite direction.












Macintosh had stopped at the lights with his lorry straddling the line between the left and centre lanes with the intention of turning left. He estimated that there was a gap of around two metres between the nearside of his HGV and the kerb. The evidence indicated that he was signalling to turn left at all material times.

Collette McGeer then cycled up to the traffic lights in the same direction of travel as Macintosh. She was approaching the junction when the lights changed. As she crossed the white line at the junction she came alongside the front of the HGV which had pulled right to give enough space to make the left hand turn. Macintosh then turned left, colliding with McGeer and causing her very serious injuries.

The Judgment

The case was heard in the Liverpool High Court before His Honour Judge Raynor QC. On the basis of the evidence presented he found that the cyclist was visible for 8 seconds in the HGV's mirrors prior to the collision.

HHJ Raynor referred to rules 72 and 73 within the Highway Code rules for cyclists:

72            On the left. When approaching a junction on the left, watch out for vehicles turning in front of you, out of or into the side road. Just before you turn, check for undertaking cyclists or motorcyclists. Do not ride on the inside of vehicles signalling or slowing down to turn left.

73            Pay particular attention to long vehicles which need a lot of room to manoeuvre at corners. Be aware that drivers may not see you. They may have to move over to the right before turning left. Wait until they have completed the manoeuvre because the rear wheels come very close to the kerb while turning. Do not be tempted to ride in the space between them and the kerb.

On the evidence presented, McGeer was in breach of rule 72 as she was riding "on the inside of vehicles signalling or slowing down to turn left" and rule 73 which specifically states that "long vehicles have to move over to the right before turning left".

HHJ Raynor also referred to rule 211 within the Highway Code rules for road users requiring extra care:

211          It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.

Defence

The defence argued that the driver should not be liable as a) the claimant did not establish that the driver failed to make the proper check in his nearside mirror prior to making the manoeuvre and b) the driver should not be criticised for making the turn in the way he did.

HHJ Raynor found that the cyclist would have been visible in the lorry's mirror for approximately 3 seconds before he moved off at the traffic lights. On that basis, had he made a proper check before moving off he would have seen her and the incident would have been avoided.

Furthermore, the driver was aware that cyclists would have been tempted to go down the inside of his vehicle - particularly given the gap he had left to his nearside - and it was not clear that his indicator would have been visible to cyclists passing him. As a result he should have made a further check of his nearside mirror after he had set off from the lights. At that point he would again have been able to see the cyclist and again the incident would have been avoided.

For these reasons, HHJ Raynor found that the driver was at fault for the incident.

Contributory negligence

Whilst the defendant was found to be at fault for the incident, the cyclist was also seen as having contributed to the incident. This was because a) she could not safely assume that the HGV was going to proceed straight as it was straddling the left and middle lanes and b) she could not safely assume that the HGV was going turn right as she had not seen the driver indicating right. On that basis, he found that a reasonable road user would have been aware of the risk of the lorry turning left and would not have undertaken him in those circumstances.

HHJ Raynor found the driver to be 70% liable and the cyclist 30% at fault. He said the following in deciding the portion of blame to allocate to each party:

Para 53    Although the Claimant was, as I have found, guilty of negligence, in my judgment the major share of the responsibility for the accident must lie with the Defendant. The causative potency of the HGV is highly significant in assessing apportionment given the likelihood of very serious injury to a cyclist in the event of a collision. The Defendant turned across the path of the Claimant when, had he exercised reasonable care, the collision would have been avoided. His was a potentially very dangerous machine, as he knew, and I find the appropriate apportionment of fault for the Claimant in this case to be 30%, and her damages will be reduced accordingly.

What does this mean for cyclists

As I've explained in previous blogs, the civil courts take into account that more responsibility should be attributed to the more powerful vehicles. In his judgment, HHJ Raynor expressly stated that "HGV drivers must bear in mind that the vehicle is a very dangerous weapon". This is, of course, positive for cyclists and other vulnerable road users.

In my view, it is questionable that the cyclist should be found to be 30% at fault in this case. In deciding whether she contributed to the incident HHJ Raynor found that she not safely assume that the lorry was heading straight or turning right. Whilst this is correct it may be setting the bar a little too high to expect someone to have sufficient presence of mind to draw that conclusion in the heat of the moment. That would involve assessing the position of the HGV (two metres from the nearside kerb and moving further out) against the road markings for traffic in a different lane and then deciding that the lorry may be turning left. This also presumes that the road marking were visible, which they would not be if a row of stationary traffic was positioned over them at the relevant time. The most potent factors were an inattentive driver, a poorly designed junction and a vehicle unsuited for our roads.

Friday, 5 August 2016

What is the law for Deliveroo cyclists

I have recently been asked a few questions about the law regarding cyclists who deliver food i.e. for companies like Deliveroo and UberEats. 

The questions generally boil down to a) whether the business is liable if one of their riders injures someone or b) what duties the business has towards injured riders. Given that Deliveroo alone has over 5,000 riders across the UK it is understandable that people are concerned about these issues.

Is Deliveroo liable for accidents caused by their riders?

A company will be liable for the actions of their riders where it can be shown:

1. They are an employee, or in a relationship akin to employment; and
2. There is a sufficiently close connection between the employment and the wrongful act.

Cycle couriers are not employees so when assessing whether there was a relationship akin to employment, a court would look at factors such as: the extent of control the business has over the rider; whether the business provided tools or equipment to the rider; how central the activity being performed is to the business' enterprise, etc.

Whilst cycle couriers are not currently seen as employees I think it is likely that a court would find that they are in a relationship akin to employment. This would, however, depend on the specific relationship between the business and the rider. 

For the second part of the test, a court would consider whether the wrongful act (i.e. cycling causing a collision) was closely connected to the job they were doing. Given that the job is specifically to deliver food by bicycle, a court would be very likely to find that this part of the test is met where there has been a collision.

On that basis, it is likely that a business like Deliveroo or UberEats would be liable for collisions caused by their riders. 

What duties does Deliveroo have to injured riders?

Riders for Deliveroo are not technically employees. This means that they are not entitled to the basic rights enjoyed by employees such as sick pay. On that basis, there is no general right to pay where a rider is injured whilst cycling in the course of their job. 

In most cases, bringing a claim against the road user who caused the incident may be the only recourse. However, there are times when a business will be liable for an incident. For instance, Deliveroo may have provided an item of work equipment (e.g. a courier bag) which is faulty and causes a cyclist to have an accident. Alternatively, they may be at fault for failing to provide adequate training. In circumstances such as these a business could be held at fault and would need to compensate the rider accordingly.

The future

It is worth noting that, although cycle couriers are not currently seen as employees, there is currently a legal action pending which is challenging this. In my view, it is inequitable for a business whose sole purpose is delivering goods to avoid all responsibility for those who are injured whilst delivering those goods, particularly given that couriers are financially incentivised to ride quickly as they get paid by the job. Cycle couriers bear a significant risk of injury for dangers outside of their control because of the amount of time they spend on the road and they should be protected accordingly.

Cycle couriers rarely make much more than the minimum wage. Given the relatively low pay they do not get the chance to build up reserves for when they can't work through injury. I have had clients who are couriers who have continued working whilst suffering from a fracture as they cannot afford to stop working, which is not uncommon. I hope the time will come soon when couriers are entitled to paid holidays, sick pay, protection from unlawful discrimination, maternity leave and redundancy pay.

Monday, 7 December 2015

How will the proposed increase in the Small Claims limit affect cyclists?

Here is a guest blog I wrote for the Cyclist Defence Fund website:

http://www.cyclistsdefencefund.org.uk/how-small-claims-limit-affect-cyclists



In the recent Autumn Statement(link is external)George Osborne stated that the small claims limit will increase from £1,000 to £5,000 in personal injury cases. The theory is that cases which fall within the small claims track are straightforward and will not require legal representation. As a result, a party bringing such a case should not be entitled to recover their legal costs.
In personal injury cases this is being brought in so injured people are encouraged to deal with a defendant’s insurance company direct. However, personal injury cases at this level are not always minor or straightforward and the government were even warned against this move in 2013 by a report of the transport select committee. 
To put it in context, a common injury cyclists face after being struck by a car is a fractured collar bone. Under the Judicial College guidelines (which the courts use to assess the value of an injury), a fractured collar bone may be worth £4,290. Most would agree that a fractured collar bone is not trivial, yet such injuries will fall within the cases captured by the proposed increase to the small claims limit.
According to the Financial Services Authority, injured people get an average of two or three times more money if they consult a solicitor rather than negotiating with an insurer direct. In other words, insurance companies will try to under-settle cases when solicitors are not there to hold the companies to account and give the victim a voice.
This will not surprise anyone who has had the misfortune of trying to recover money from an insurer themselves. A client whose home had been burgled recently told me that the process of getting the money from her household insurer was more distressing than the burglary itself. People who have suffered injury will soon have to go through a similar process.
Many will be asking why George Osborne is increasing the small claim limit, and he has explained that the change is being brought in to cut the cost of motor insurance. However, it is debatable whether the purported savings will be passed on to motorists. The number of claims have fallen significantly in recent years yet still the insurance industry has not reduced premiums. 
More importantly, it is unjust to expect a cyclist or pedestrian, who may have suffered a fracture and several thousand pounds of financial losses, to fight against a driver's insurance company without legal representation. The fact that the measure is being taken to save motorists money adds insult to injury.
I would encourage all to sign this petition to keep the small claims limit at £1000(link is external)so that this change in the law will be debated properly in Parliament and to give injured people the chance to retain their voice.

Wednesday, 18 November 2015

Motorists and Cyclists – Where’s the Love?

A cyclist taking part in the 90-mile Velothon Wales in June suffered serious leg injuries when he came off his bike at 30mph after riding over drawing pins that had been deliberately strewn across the road on a downhill stretch seemingly chosen to cause the most carnage. 

In July, police in Brighton issued warnings about wires strung between trees in Coldean Woods, a popular woodland bike track, after cyclists reported spotting the wires on two separate sections. Earlier in the month, a cyclist in Dorset suffered cuts after hitting 15 individual strands of fishing line strung across a cycle path in a country park.

Fortunately, the threats from these types of malicious incidents are comparatively rare. The dangers posed by heavy goods vehicles alone are a far greater threat to cyclists. But why has this apparent backlash against cyclists become so personal? How does someone make the leap from muttering abuse from behind their wheel to stringing wire up between trees hoping to decapitate passing riders?

Cycling safety campaigners highlight how the tone of the debate around cycling has become increasingly polarised and venomous. Some have suggested that such incidents are linked to a public and media narrative in which cyclists are constantly demonised as serial law-breakers who supposedly love nothing more than dressing up in lycra, jumping red lights and riding on the pavement terrorising pedestrians.

There is seemingly no end to the anti-cyclist vitriol so often dressed up as balanced journalism published in print and online calling for cyclists to be ‘banned’ from Britain’s roads.

Whether it’s because cyclists occasionally eat couscous for lunch, wear “pompous little pointy plastic hats,” or simply don’t belong on the road because they don’t pay the mythical ‘road tax’, the message is clear; cyclists are a menace to society.

Dr Rachel Aldred, a sociologist at Westminster University, suggests that cyclists in Britain so often get victimised because, unlike in Denmark and the Netherlands, bikes are seen as “frivolous” and have no place in the serious and adult environment of the road. “It’s as if you’re doing something you shouldn’t be doing on the roads, almost like you’re playing in the street and getting in the way of the traffic, like you’re a child.”

“There’s also this dual way you can be stigmatised as a cyclist – it was historically seen as something for people with no choice, but now it’s seen as something for people who have a choice. It’s a leisure or play thing that they shouldn’t be doing in this inappropriate place.”

Dr Ian Walker, a psychologist at Bath University, told The Guardian newspaper that the debate around cycling could be compared with the historical treatment of so-called ‘societal out-groups’ “What you see in discourses about cycling is the absolute classic 1960s and 1970s social psychology of prejudice. It’s exactly those things that used to be done about minority ethnic groups and so on – the over-generalisation of negative traits, under-representation of negative behaviours by one’s own group, that kind of thing. It’s just textbook prejudiced behaviour.”

A perceived lack of respect for the rules of the road is often cited as one of the main gripes motorists have against cyclists. Although the average cyclist is no more inclined to break the law as the average motorist, cyclists claim that a rider spinning through a red light right in front of queuing traffic for example is far more conspicuous than a driver edging past 20mph in a residential street.

Dr Tom Stafford, a psychology lecturer at the University of Sheffield theorises that “motorists hate cyclists because they think they offend the moral order.” Drivers stuck in traffic have all the time in the world to stew over a cyclist breaking rules they themselves have to follow, and it is this widely mentioned sense of frustration felt by motorists upon witnessing cyclists undertaking on the inside, jumping red lights, or weaving in and out of stationary traffic, that spawns so much antipathy.

"The very fact that cyclists are able to filter through traffic grates on many motorists and they take that out on cyclists," says cycling journalist Carlton Reid. Growing levels of bad feeling between cyclists and motorists breed increased aggression in the minority of both camps, perpetuating the apparent war of attrition between the two.

When a Norfolk driver tweeted "Definitely knocked a cyclist off his bike earlier. I have right of way - he doesn't even pay road tax!" after she struck a rider on the 100-mile Boudicca Sportive ride in Norfolk in 2013, the ensuing uproar exemplified the growing social media backlash often taken against drivers who are seen to have threatened or endangered the lives of cyclists.

Many cyclists now routinely wear helmet cameras to record such incidents to identify those guilty of dangerous driving. Road rage footage involving heated altercations between cyclists and drivers frequently appears on sites such as YouTube complete with license plates in view and full audio commentary.

When such videos are posted online, the consequences for those involved can often be far more severe than if the matter simply went before a court. When helmet cam footage of a road rage incident involving a driver in Richmond, South West London, went viral, the video sparked outcry on social networks along with calls for a boycott of the identified driver’s chain of coffee shops.

Some argue that the presence of helmet cameras often inflames the situation and cyclists have been accused of goading already enraged motorists into more incriminating behaviour. Both motoring and cycle safety groups agree that filming incidents between cyclists and drivers can sometimes escalate minor disagreements into full-blown physical confrontations.

There is no doubt that the explosion in the number of people taking to two wheels over the last 10 years has completely altered the dynamic of driving on Britain’s roads but it is important to remember that cyclists and drivers are often the very same people. While there is clearly bad behaviour from both sides, cyclists argue that it is a totally unequal relationship.

Referring to the so-called on-going ‘war’ between drivers and cyclists, Olympic track cycling champion, Chris Boardman said: “You’ve got 2% of vulnerable road users versus 98% in two tonnes of steel. How can you possibly have a war? I think that’s called a massacre. What could a cyclist possibly do to somebody in a car?”

It seems that the only weapon cyclists have in their arsenal is to publicly shame drivers for their actions. Unfortunately, the threat to portray a motorist as the next Ronnie Pickering is unlikely to be sufficient to prevent that red mist from getting the better of them.

Wednesday, 15 July 2015

Cycling and The Law: Some Frequently Asked Questions

Can Motorists Park in Cycle Lanes?

Cars and lorries parking in cycle lanes is a particular problem for cyclists as it forces them out of the relative safety of cycle lanes into moving traffic, often with little warning.

But is it legal for motorists to park in cycle lanes? 

Rule 140 of the Highway Code clearly states:

Cycle lanes. These are shown by road markings and signs. You MUST NOT drive or park in a cycle lane marked by a solid white line during its times of operation. Do not drive or park in a cycle lane marked by a broken white line unless it is unavoidable. You MUST NOT park in any cycle lane whilst waiting restrictions apply.

Put simply, the rules on parking in cycle lanes depend on whether the cycle lane has a solid or broken white line running down its right side, and whether any signage is in place.

A solid white line indicates a mandatory cycle lane which motorists, cannot drive or park in. A broken white line is an advisory marking telling motorists they should not drive or park in cycle lanes unless absolutely necessary.

Motorists who are caught parking in a mandatory cycle lane may be given a £50 Fixed Penalty Notice.

Can Cyclists Cycle the Wrong Way Down One-Way Streets?

One-way streets can often make cycle journeys longer and potentially more dangerous as detours can mean there may be more junctions to negotiate.

There have been proposals to introduce arrangements to allow cyclists to ride in both directions down one way streets. However, at present, cyclists can only ride the wrong way down one-way streets if there are signs stating it is permitted.

Cycling and Alcohol: What is Legal?

Cyclists do not have to adhere to the same drink drive limit as motorists. The test for cyclists is whether or not they are “fit to ride.” Both the legal limit and the breath tests the police use for motorists do not apply.

Section 30 of the Road Traffic Act 1988 states: A person who, when riding a cycle on a road or other public place, is unfit to ride through drink or drugs (that is to say, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the cycle) is guilty of an offence.

Is it Legal to Cycle in Bus Lanes?

Nearly all bus lanes are open to cyclists unless signage indicates otherwise. Cyclists should always look out for passengers getting on or off buses and be careful when overtaking buses that have either pulled in or may be about to pull out from bus stops. Cyclists should never pass between the kerb and a stationary bus at a bus stop.

What Are The Penalties for the Most Common Cycling Offences?

Red lights: Cyclists must obey all traffic signs and traffic light signals. Cyclists must not cross the stop line when traffic lights are red. Some junctions have an advanced stop line (ASL) to enable cyclists to position themselves ahead of other traffic.

If cyclists are caught jumping red lights they may be given a £50 Fixed Penalty Notice.

Speeding: Cyclists cannot be booked for speeding, but under the 1847 Town Police Clauses Act, they can be fined for “cycling furiously.”

Under the Offences Against the Person Act 1861, cyclists can be convicted and imprisoned for up to two years if found guilty of “wanton and furious driving,” which causes injury to someone other than themselves.

Under Section 28 of the Road Traffic Act 1988 it is an offence for cyclists to ride recklessly or in a dangerous, careless or inconsiderate manner. Dangerous cycling, defined as riding “far below what would be expected of a competent and careful cyclist,” is a more serious offence than careless and inconsiderate cycling. The maximum penalty for dangerous cycling is £2,500.

Cycling on the Pavement: It is illegal for cyclists to ride on the pavement unless the pavement is marked as a shared use cycling path. If caught riding on the pavement, cyclists can face a £50 Fixed Penalty Notice.

Cycling without lights: It is illegal to cycle on public roads between sunset and sunrise without white front and red rear lights. Lights can be steady or flashing, although it is recommended that cyclists riding in areas without street lighting use a steady front light.

By law, bikes must also be fitted with a red rear reflector and two amber reflectors must be fitted to each pedal.

Monday, 3 February 2014

The proposed safety improvements to HGVs is a step in the right direction

There have recently been headlines regarding my criticisms of Boris Johnson's cycling policies. However, his backing of proposals to negate the dangers posed by HGVs entering London is definitely a step in the right direction and has the ability to genuinely improve the safety of cyclists. 

There are two tiers to the safety improvements. First is the proposed amendments to EU regulations to ensure new HGVs will be designed with larger windows and better sight-lines for drivers. This will be debated in the European Parliament on 11th February. The mayor spoke in favour of changing the regulations, saying that they "can save literally hundreds of lives across the EU in years to come.” With that in mind, it would be deeply disappointing if these changes cannot be pushed through, although whether the changes will be introduced appears to be finely balanced. 

The second initiative will require every vehicle in London over 3.5 tonnes to be fitted with protective equipment. In particular this includes sideguards to stop cyclists from being dragged under the wheels. It will also require HGVs to be fitted with extra mirrors to give the driver a better view of cyclists and pedestrians around their vehicles, and will help alleviate the dangerous blind spots. With the proposed ban on HGVs which do not meet these standards, the mayor has upped the ante on his proposals last year to levy a £200 fine on all lorries entering the capital without the safety equipment.

Chris Boardman (British Cycling's policy adviser and often a voice of reason on cycling issues) wrote an open letter to the mayor in November saying: "When I rode alongside you to help you launch your vision for cycling in March [2013], you made a verbal promise to look at the successful experiences of Paris and many other cities in restricting the movements of heavy vehicles during peak hours." Boardman is backing the proposed policy changes and said that "it would be criminal for us to know how to save lives and then choose not to take action."