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.