The UK Highway Code advises all road-users of what is expected in terms of safe driving and riding and is used by judges to provide authoritative guidance when deciding whether a road user has been negligent.
I have represented many cyclists and motorcyclists seriously injured by drivers who have not ‘seen’ them and, in my experience, insurance companies are keen to allege contributory fault on their part. For example, if they can prove a cyclist was 25% to blame, that cyclist’s accident compensation will be reduced by 25%.
The Highway Code recognises cyclists as vulnerable road users; indeed, over the years judges have developed case law acknowledging that drivers are in charge of potentially ‘dangerous weapons’ capable of causing devastating injuries if driven badly.
But in some cases the court holds cyclists and others partly to blame for causing or contributing to their own injuries and, in these cases, awards of compensation are reduced accordingly. In making their determinations, judges apply principles of relative blameworthiness and causative potency to decide what proportion of blame lies with whom.
As an example, consider the case of a defendant driver turning their vehicle across the path of a cyclist wearing a dark-coloured top, knocking them down and injuring them; it is a bright, sunny day and the incident occurs in full sun. The driver’s insurer seeks to place partial blame on the cyclist for not being sufficiently visible – here, the crucial points for a judge to consider are: Would the cyclist have been clearly visible to a careful and reasonable driver, and would the driver have been able to avoid a collision?
Another argument much favoured by insurers focusses on the distance between cyclists and other road users. If a cyclist is injured by a driver or passenger opening a vehicle door into their path an insurer will often argue that the cyclist was riding too close, and that the very fact that they were hit indicates that they were at least partly to blame. During my career I have had experience of successfully opposing the car-door argument: it is not always possible or safe for riders to ride more than a metre from a parked vehicle, taking the road conditions and prevailing traffic into account. In such cases, it is important to consider the cyclist’s thought processes and demonstrate that their decision was justifiable.
There are many arguments around the wearing of bicycle helmets but, overall, much scientific research shows helmets are ineffective in preventing or reducing brain injury in all but low-speed collisions. Even if a driver or their insurer is able to persuade a judge that in their case it was contributorily negligent of the cyclist not to wear a helmet, a lack of hard evidence makes it very difficult for the insurer to prove that an injury would have been less serious, or avoided altogether, by wearing a helmet.
To summarise, the Highway Code provides important guidance for road-users as well as for Judges determining liability in personal injury compensation claims. Motorists who injure vulnerable road-users who were “there to be seen” can expect to be held primarily if not wholly liable in negligence. All road-users owe a duty of care to each other, and drivers of “dangerous weapons” need to be especially careful and keep a proper look out for cyclists, motorcyclists, pedestrians etc.
Paul Fretwell is a solicitor, partner, and Head of the Personal Injury department.
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Author: Paul Fretwell
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