Cyclists, potholes and the law

1.     

No rule about size to trigger liability

Every cyclist hits a pothole sometime.

If cycling on the public highway,  your local authority has a statutory responsibility to maintain and repair the road such that it is fit and safe for ordinary traffic. 

If you are injured or your bike is damaged, the starting point is to decide whether the pothole  is a probable danger to cyclists.


There are no rules about what size pothole qualifies but a court will have to be convinced that it was dangerous enough to cause an accident  in the particular circumstances: for example,  gaps around a drain cover can be a real danger to cyclists but not to a motorist.  

Local authorities can defeat pothole claims if they can convince the court that they have taken reasonable care to ensure the road was not dangerous for traffic. Therefore, the evidence that a council can bring about its inspections, repairs and maintenance programme will often be critical to the outcome of a claim. 

Compensation will be reduced for contributory fault if the court finds that a cyclists wasn’t paying enough attention to the road ahead ( and ironically, the larger the hole the more likely that a council can run a successful argument),   or if the pothole was on a familiar route, or near the cyclist’s home.

Again,  all road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead. 

At Dowse & Co we have a good track record of  pursuing pothole claims and have won cases contested hard by local authorities. 

Call Patrick Spence with any queries on 0207 254 6205.

Rights of way: no claim against the landowner

Rights of way often do not include a right  against landowners for injury

Cycle paths on a right of way may not be the responsibility of a local authority and it may be that you will not have a claim at all if you fall from your bike because of a pothole.

Courts have held that the occupier of land over which a right of way crosses does not have a legal duty to maintain the pathway in good repair. You therefore may not have a claim at all no matter how big and dangerous the pothole when using a right of way over private land!

In essence,  when a cyclist exercises a right of way,  the landowner at that point is judged not to have control of the land and is not defined as an "occupier" with the legal obligations towards visitors normally expected.

Even if the landowner improves the right of way, say by paving, there is no obligation on him to continue maintaining the right of way if it falls in to disrepair and you will probably have no claim if you are injured due to any disrepair.

Contact Patrick Spence for more informatiom: 0207 254 6205

Legal tips about pothole claims for cyclists

1.     

Every cyclist hits a pothole on the road sometime.

If cycling on the public highway,  the local authority has a statutory responsibility to maintain and repair the road such that it is fit and safe for ordinary traffic. 

If you are injured or your bike is damaged, the starting point is to decide whether the pothole  is a probable danger to cyclists. There are no rules about what size pothole qualifies but a court will have to be convinced that it was dangerous enough to cause an accident  in the particular circumstances: for example,  gaps around a drain cover can be a real danger to cyclists but not to a motorist.  

Potholes are a menace for bikes

Local authorities can defeat pothole claims if they can convince the court that they have taken reasonable care to ensure the road was not dangerous for traffic.  Therefore, the evidence that a council can bring about its inspections, repairs and maintenance programme will often be critical to the outcome of a claim. 

Compensation will often be reduced for contributory fault if the court finds that a cyclists wasn’t paying enough attention to the road ahead ( and ironically, the larger the hole the more likely that a council can run a successful argument),   or if the pothole was on a familiar route, or near the cyclist’s home. 

Again,  all road users are expected to take reasonable care of their own safety, and that includes keeping a look out on the road ahead. 

At Dowse & Co we have a good track record of vigorously pursuing pothole claims and over the years have won cases contested hard by local authorities. 

Call Patrick Spence with any queries on 0207 254 6205.

Speed humps and cycle accidents?

Traffic calming measures are generally to be welcomed where they reduce traffic speed, the risk of serious accidents, and improve road safety for vulnerable road users such as children and the elderly.

For cyclists however traffic calming may not be such a straightforwardly good thing, for some measures introduce new hazards which can partly or completely negate any advantage. For example,  width restrictions can reduce the space cyclists have around them and bring cars dangerously closer; and areas of extensive calming using speed humps can cause drivers to accelerate and brake unpredictably,  and to be less aware of other road users. Perversely long roads of speed humps to negotiate can actively discourage  cyclists and many experienced cyclists  prefer free flowing main roads.

Road humps which are badly either designed or installed can be a real danger  to cyclists and by themselves cause falls and injury.For instance, Dowse & Co.  are pursuing a case at present where a metal speed barrier  which was a real and foreseeable danger to two wheeled vehicles caused a cyclist to crash while commuting  on a designated cycle route.

The Highways (Road Hump) Regulations 1996 specify that roads maintainable at public expense must not have road humps higher than 100mm and should be a minimum length of 900mm, with no vertical face to exceed 6mm in height. Humps falling outside these dimensions may be construed as foreseeably dangerous and the authority responsible may be liable in either negligence or nuisance for any injuries caused as a result.

Speed humps on private land do not have to comply with the regulations but if the humps are nevertheless foreseeably dangerous the person installing the humps may still be liable for any injury caused to a cyclist.

Speed humps are often a hazard for cyclists.

Such cases are fact sensitive and therefore it is often crucial to gather together as much evidence as possible about the speed hump when considering a claim for compensation. Relevant evidence will include photographs, measurements of the hump, whether there were warning signs or lighting, and previous reported accidents at the site.

Call Patrick Spence on 0207 254 6205 for further information.

Diesel spillages cause cycle accidents

We have recently taken new instructions from a cyclists who suffered a fractured hip after slipping on a diesel spill. Here we give some basic advice about pursuing compensation.

Driver negligence is usually the cause of diesel spills.  Drivers often overfill their tanks or neglect to use a fuel cap properly, causing hazardous diesel oil to slosh onto the street when braking or turning. Cyclists have very little traction between their tires and the ground, so encountering a spill can lead to a nasty fall.

In some cases of diesel spills  the police  may  be able to identify the driver from CCTV in which case the accident victim has a claim against them and their insurer. However,  the driver is often long gone by the time of the accident and cannot be traced. Who do you claim against then? 

  

Cyclists are vulnerable to diesel spills

Compensation Conditions

The Motor Insurers’ Bureau under the Untraced Drivers Agreement will consider claims for personal injury and financial loss in diesel accidents, under certain conditions:

·         The diesel spill must on the balance of probability (51% chance or  better)  have been the result of a negligent act on the part of the missing driver.  The very presence of the spill is in a sense evidence of a negligent act,  and difficult to rebut.

·          The spill must be “large” in size.  There is not, however, an actual definition of what constitutes a large spill but it is likely to qualify if it needs cleansing by the local council, or is reported hazardous by police, or if more than one person has fallen at the same place.  

·         Police must be informed of the accident within 14 days ( or as soon as reasonably practicable), or 5 days for property-only claims. 

·         Any claim must be made within 3 years of the accident

What about evidence?

If you have a diesel spill fall try to remember to do the following:-

·         Take photographs and measurements of the spill: use your mobile if need be.  The police may help with this if called to the accident: you may not be a fit state to do so yourself.

·         The local authority responsible for the highway should be informed and told to clean the diesel up.

·         Take the details of any witnesses to the accident and the diesel spill.

·         Request the police incident log detailing communications between officers about the accident.

·         Record the precise location     

 If you are a victim of an unfortunate accident caused by a diesel spill and the above criteria are met, you may be entitled to compensation under the Untraced Drivers Agreement.  The MIB will contribute towards your legal fees and otherwise we may be able to defer charging fees until compensation is recovered. 

Please either call Patrick Spence on 020 7254 6205 or e-mail ps@dowse.co.uk if you have any further queries about diesel spill accident claims and need assistance pursuing such an application.

A simple "dooring" cycle accident

  Bob was riding his bike  to a dentist appointment in Dalston on a Friday morning in March 2012. Knowing his route would be busy, he opted to take the back streets as they would be quieter.

  While  cycling  about 10 miles an hour, a driver suddenly opened a parked car door on his left hand side just as he was passing. His bike collided with the open door and the top edge of the  door cut into his left arm and shoulder. Thrown to the ground by the collision, he was fortunately able to get up quickly and remove himself from oncoming traffic.

  Bob was taken to hospital  and the laceration on his left arm was  glued and dressed to stop the bleeding. He  developed bruising to his left arm which lasted for several weeks, and experienced moderate pain and stiffness in his left knee and shoulder, which slowly improved but continued to cause him intermittent problems.

  The injuries while luckily fairly minor had detrimental effects on his social life. He began to experience discomfort when riding his bike and his ability to go walking was  restricted, which clearly affected his ability to travel. Fortunately this  improved  quickly, however he was unable to continue playing football and this has still not improved since his accident.  

  Liability in this case was  clear: the driver had acted negligently by opening his door without looking to check that it was safe to do so. Since he had come to the aid of our client and given his details, settling compensation through his insurers was fairly simple. Our solicitors were able to recover £2,265 for our client, along with the costs of his physiotherapy and our legal costs. This matter was handled with  speed and skill, and Bob received his compensation just 4 months after the accident, allowing him to focus on his recovery. 

High Vis tops will reduce risk of "dooring"

TIPS

 

When cycling, it is important to be wary of both moving and parked vehicles and drivers should take the same care. This accident took place on a bright and sunny day, however since winter is coming along with its gloomy light and shorter days, wearing bright and reflective clothing- as recommended in the Highway Code-  will improve your chances of being seen on the road and prevent “dooring” accidents  occurring. Also always try and keep a safe distance from parked cars as you pass: easier said than done in London's crowded streets.

BRADLEY  WIGGINS  ON   CYCLE  HELMETS

Bradley Wiggins urges that cycle helmets should be made compulsory, to reduce the risk of injury. Here are 4 reasons why they should not:

1. There is no clear evidence that helmet use reduces the incidence of head injury, except perhaps in low speed falls / impacts.  Cycle helmets are currently required to survive a freefall drop of 1.5 metres onto a flat surface and a kerb shaped anvil at an impact speed of 5.42m/s (12.1mph). They are not designed to protect the cyclist from impact with a  moving motor vehicle. Reports commissioned for the Dept of Transport in 2002 and 2009 could not provide conclusive evidence of their effectiveness from population studies.

2. The public interest lies in promoting cycling, not helmets. Evidence from Australia, (one of only two countries in the world with national all-age mandatory bicycle helmet laws), Canada and Denmark demonstrates that promotion of cycle helmets reduces levels of cycling. Cycling increases fitness, longevity, reduces obesity and associated healthcare costs. It also diminishes traffic congestion  and fossil fuel pollution. The Government wishes to promote cycling; the culture of cycling helmets becoming compulsory would discourage people from cycling. (What TfL posters show cyclists wearing helmets?)

3. There is evidence that motorists drive more carefully around helmetless drivers, perhaps regarding them as more vulnerable. This is the phenomenon known as “risk compensation”.

4. Only in one reported case Reynolds v Strutt & Parker LLP [2011] EWHC 2263, did the court find both that a cyclist was at fault in not wearing a helmet and that this fault made a difference. The emphasis on cycle helmets can be seen as a distraction from making the roads a safer environment for cyclists.

It is upto the motorist to prove that the lack of a helmet has caused or contributed to the cyclist’s injuries. I would not comment on the sad case in East London  which prompted Bradley’s remarks,  because I do not know the facts. He offers very sensible advice to make sure cyclists look after themselves, carry lights and avoid the distraction of headphones and ipods. As he says, road users all have to co-exist. But I think he is wrong to assume that the cyclist is to blame for their own injuries because of the absence of a helmet  “…if you get knocked off and you ain’t got a helmet on, then how can you kind of argue?” The answer is it all depends on whether a helmet would have made any difference to your injury.

Helmet wearing should be a matter of choice for the individual.  As a cyclist  commuting across north London for over 35 years, I always wear one, but I would not condemn my fellow cyclists who don’t.

Myles Hickey

WHY SHOULD YOU INSTRUCT A LOCAL SOLICITOR TO ASSIST WITH YOUR CYCLING ACCIDENT CLAIM?

If you have been injured in a cycling accident, the most important thing on your mind should be recovering from the mental and physical trauma. However, the pain, hassle and expense which come as a result of injury can add to your stress and hinder your recovery. Therefore when making a personal injury claim as a result of an accident, choosing the right legal advisor is vital to minimise your stress and maximise your chance of gaining compensation.

We have all been bombarded by the highly-polished adverts on the television from claims management companies offering you “no-win-no-fee” advice and promising “100% of the compensation”. But did you know that your local high street solicitors can offer you the same deal, but provide you with highly experienced solicitors? These lawyers may not be quite as slick as those splashed across our television screens, but they are specialists with a wealth of knowledge and experience.

So why should you choose your local solicitor:

1)     Expertise: Solicitors at a high street firm will be qualified and experienced. A claims handler from a claims management company will not have the expertise of a qualified solicitor.

2)     Regulated: As well as having expertise, solicitors are highly regulated professionals and may be certified as experts by professional bodies, such as The Law Society and the Association of Personal Injury Lawyers (APIL). A personal injury solicitor at your high street firm will have to follow strict procedures and good practice, thereby giving you the best possible legal service. Claims management companies, by comparison, do not operate to the same standards and therefore there is no guarantee that your claim will be handled as competently.

3)     Face-to-face advice: A solicitor will meet with you face-to-face, they will speak to you directly about your accident, and they will see your injuries firsthand. If you are seriously injured, home or hospital visits can also be arranged. With a claims management company, your contact will most likely be solely via the telephone or by email.

4)     Familiarity: If using a claims management company, it is likely your claim will be dealt with by a number of different people. Using a local solicitor guarantees somebody who is familiar with you and your claim, meaning they can deal with your claim from start to finish and stay with you each step of the way. This can be important as many cases take a number of years to conclude.

5)     Specialists: If you choose the high street, you can select a firm with lawyers who specialise in the area relevant to your claim. Shop around a bit and find the right firm with the right lawyer for you.

6)     Insured: All solicitors must have insurance to practice law. If your solicitor does a bad job and you suffer financially, you will always have a remedy of suing for professional negligence. Claims Management Companies offer no such certainty.

  At Dowse & Co, our Cycling Accident Service offers bespoke legal advice to those seeking to claim compensation after a cycling accident. Please either call Patrick Spence on 020 7254 6205 or e-mail ps@dowse.co.uk if you have any further queries about cycling accident claims, or if you need assistance in pursuing such a claim.

CYCLING ACCIDENTS: WHAT TO DO IMMEDIATELY FOLLOWING AN ACCIDENT

Cycling can be a fun, healthy and economical way to travel around London; however it can also be dangerous, especially on the capital’s busy streets. Nobody wants to expect the worst, however if you are unfortunate enough to be involved in an accident, here are some key tips for ensuring your claim has the best possible chance of success:

ü      Ensure you are safe:

 Your safety is the most important thing. If you are in danger following a collision, get out of harm’s way as soon as possible. If you are unable to move due to injury or shock, then attempt to attract the attention of others who can assist you.

ü      Call 999:

Always call the police (and an ambulance if you or anybody else involved are injured) following an accident. Even minor accidents will be recorded and this data can be used to make London’s roads safer for cyclists in the future. The police can also assist you with gathering vital evidence of the scene, which can help your claim later on. Ensure that the police officer taking your statement has written what you intended. If they have interviewed the motorist first, their perception of the event could have been distorted, so always ask them to read your statement back to you to make sure your version of events is recorded properly. Check the police officers have made a note of any CCTV cameras near the scene, and note their locations yourself.

ü      Never admit liability:

Accidents can be emotional and frightening, but always be aware of what you are saying. Even if you feel that it is polite to apologise, this can be used against your claim later as an admission of responsibility. Also try to avoid casual conversations with the driver involved – wait for the police to take your statements as the things they say may affect your perception of events.

ü      Gather details:

Most drivers will stop after an incident, so make sure you exchange names, contact details and registration numbers. It is important to note that even if a driver does not stop, you may still be able to make a claim. It is also essential that you gather details from any independent witnesses at the scene, as their evidence can be vital to your claim. If you are unable to do this due to injury, ask the police, or anybody who is helping you to do this for you.

ü      Gather Evidence:

Visual evidence can really assist you when making a claim. If you have a camera (even on your mobile phone) then use it to take as many photographs as you can of the scene. For example, images of number plates, witnesses, parked cars, road markings, skid marks, your direction of travel etc can all be useful. If there are any temporary road works or signs, photograph these in particular. Try to time and date any images. Beware that the driver may attempt to move their vehicle “out of the way”. Be sure to ask them not to do so until the police have noted its position. Again, if you are unable to do any of this yourself, enlist the help of somebody at the scene.

ü      Seek Medical Assistance:

If your injuries are serious and an ambulance is called to the scene, you will probably be taken to a hospital. Try and get somebody at the hospital, or a family member or friend to take photographs of your injuries. Even if your injuries do not appear to be serious, if you are hurt then you should insist on a full hospital check up. Keep a pain diary and a record of all expenses such as prescriptions, travel fares, parking charges, and painkillers.

ü      Remember Property Damage:

Note that you may also be able to claim for damage to your personal property, so make sure that you make a note of and photograph any damage to clothing or your bike and gather receipts for their repair or replacement. If a repair will cost more than £100, get two quotes to show this.

ü      Instruct a Specialist Solicitor:

If you decide you want to make a claim, it is important that you seek suitable legal advice. Many of the claims management companies advertised on television do not offer the specialist advice necessary for a cycling accident claim. Finding a solicitor who is experienced in both personal injury and cycling accident claims will help your chance of getting compensation.

  At Dowse & Co, our Cycling Accident Service offers bespoke legal advice to those seeking to claim compensation after a cycling accident. Please either call Patrick Spence on 020 7254 6205 or e-mail ps@dowse.co.uk if you have any further queries about cycling accident claims, or if you need assistance in pursuing such a claim.

NUDGE OUT AT YOUR PERIL!

This week we took instructions from a cyclist knocked over by a driver emerging from a side street. The claim ought to succeed and Rule 211 of the Highway Code states:

"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."

In most cases  therefore it will be difficult for a driver to escape responsibility  where claiming their view was blocked by parked cars,  or the like.

If you're driving a ton of metal you need to be aware of vulnerable roadusers and don't "nudge out" unless you are sure the road is clear: sometimes of course that is impossible! In Smith v Kempson (2011) the driver had her view obscured and no one could say what she could have done but the appeal judge held the trial judge was entitled to find the driver had "acted in breach of the standard of care, even if the judge was unable to say, or had not said, precisely what action or omission constituted the fault". Life can be unfair!

I

Traffic accident (but no collision) - cyclist recovers £10,000.00

If the driver caused your fall he is liable.

A car pulled out of the petrol station straight into the path of Rory’s push bike.  In performing an emergency brake, Rory went over his handlebars and as he attempted to break his fall on the road,  he suffered undisplaced fractures of both wrists and damage to one front tooth which developed crazing of the enamel. He also suffered a permanent cosmetic scar on his calf.

Ironically,  Rory’s quick reactions saved the car from sustaining any impact damage.  This was repaid by the car driver pointing out to passers by,  who had stopped to help,  that his car was unmarked and that Rory must have just fallen off the bike through his own fault (cyclists do these things,  you know!).

Although the garage had no CCTV cameras facing the road, (we went along to investigate),  a helpful motorist who had given his details to Rory,  provided a very clear witness statement** which put the blame squarely on the driver,  whose insurers took a more sensible attitude than he had.   They did not dispute liability and Rory recovered £10,000 for his injuries,  including his out-of-pocket losses and the cost of a new porcelain veneer for his tooth.  (There was no loss of income).  Insurers also paid his legal costs in full.  (Our client’s name has been changed).

**Guidance: If you are ever in a road traffic accident always try to get the name and address of any witnesses, or ask some else to do so if you are not able because of your injuries.