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.

1 comment:

  1. "Whilst the criminal law appears to be stacked against cyclists, the law in civil cases is a little more promising."

    I don't think that I can agree with this assertion. 30% contrib for placing yourself in a position to be left-hooked sounds like a pretty raw deal to me - even more so when the Judge accepted that the cyclist could not have seen the lorry's indicators due to the presence of a stationary vehicle.

    We clearly need to understand as cyclists that we absolutely must not place ourselves in positions where we are at risk, because the law offers precious little protection - or recompense.

    The case went to the Court of Appeal, with the lorry driver arguing that he shouldn't even be regarded as 70% to blame!
    http://www.bailii.org/ew/cases/EWCA/Civ/2017/79.html

    ReplyDelete