Contributory fault: drivers, cyclists and pedestrians

Some recently issued decisions in damages actions involving motorists and injured pedestrians or cyclists highlight the continuing conflict between the respective rights and duties of each type of road user. With traffic congestion increasing, greater cycle use is encouraged, but lack of segregation of cyclists and motorists on the road has led to an increasing frequency of accidents. Similarly, urban congestion, particularly in built-up areas, creates an increasing risk of pedestrians coming into conflict with motorists.

In industry there is a well recognised hazard created where workers come into proximity with factory vehicles such as forklift trucks, or smaller work vehicles come into contact with larger vehicles such as lorries. These hazards are avoided or at least minimised by risk assessment and segregation. On public roads, while cycle lanes are often present, this sort of separation is often impossible to achieve. This article seeks to consider how the law balances the competing users' interests.

Pedestrians and motorists

The starting point is to consider the terms of the Highway Code. Although failure to comply with the code is not of itself a breach of the common law duty of care, it may be a powerful adminicle of evidence to support an alleged failure by a motorist. Whilst many sections are important, it is relevant in the present context to consider the following.

A general statement on the vulnerability of children is to be found in rule 205, which reads:

“There is a risk of pedestrians, especially children, stepping unexpectedly into the road. You should drive with the safety of children in mind at a speed suitable for the conditions.”

Rule 206 sets out much more in the way of detail and requires a driver to drive carefully and slowly when:

• “in crowded shopping streets, Home Zones and Quiet Lanes… or residential areas
• driving past bus and tram stops...
• passing parked vehicles, especially ice cream vans...
• needing to cross a pavement or cycle track; for example, to reach or leave a driveway...
• reversing into a side road...
• turning at road junctions...
• the pavement is closed due to street repairs and pedestrians are directed to use the road...
• approaching pedestrians on narrow rural roads without a footway or footpath”.

A good starting point in considering any road traffic accident case is therefore to consider the terms of the Highway Code. It could be argued that this gives rise to a presumption which is difficult to rebut. Whilst this is of great assistance where the facts are clear, there are many situations where there is a complex factual matrix and where analysis of court decisions is instructive.

Leading decision

In Jackson v Murray [2015] UKSC 5 the Supreme Court reviewed guidance set out in previous case law, and highlighted two key aspects for apportioning liability between motorists and pedestrians (and by extension other vulnerable road users): the respective “causative potency” and the “blameworthiness” of the parties.

The court heard an appeal from the Inner House of the Court of Session on whether the assessment of contributory negligence in a pedestrian road traffic accident was reasonable. Lord Tyre, hearing the original proof in the Outer House, had applied a deduction of 90% to reflect the extent to which the then 13-year-old pedestrian (Lesley Jackson) could be said to have caused her accident. This was reduced to 70% by the Inner House on appeal. Still unhappy, the pursuer then appealed to the Supreme Court.

The accident occurred on a winter's night on the A98 Fraserburgh to Banff road, which was subject to a 60 mph speed limit. The pursuer and her twin sister travelled to school every day by school minibus. The bus dropped them on the opposite side of the road from the entrance to the farm where they lived.

On the day of the accident the bus arrived opposite the farm entrance at about 16:30 when the light was fading. The bus stopped, with its headlights on. The bus driver put on hazard lights. The defender was driving home in the opposite direction, travelling at about 50mph. He did not slow down. He gave evidence that he regarded the risk of children running out unexpectedly as irrelevant. He had seen the bus, but had made no allowance for the possibility that a child might attempt to cross in front of him. He was not keeping a proper lookout, and did not see the pursuer, but he was going too fast to have stopped in time even if he had seen her. The pursuer paused briefly at the rear of the bus and then took one or two steps into the road, before breaking into a run. She was struck by the defender’s car.

The court referred with approval to the approach taken by Hale LJ to the application of causative potency in apportioning fault in Eagle v Chambers [2003] EWCA Civ 1107. In that case the court found that the respective causative potency of the parties’ actions and their respective blameworthiness had to be considered when apportioning liability. In particular, the potential “destructive disparity” between a pedestrian and the driver of a vehicle meant that the courts placed a higher burden on drivers. That reflected the potentially dangerous nature of driving.

Giving the majority judgment of the Supreme Court, Lord Reed observed that: “The apportionment of responsibility for an accident is inevitably a somewhat rough and ready exercise..., and a variety of possible answers can legitimately be given.”

The question for the appeal court was whether the court below went wrong in its assessment. The defender’s behaviour was culpable to a substantial degree. He was found to have been driving at an excessive speed and not to have modified his speed to take account of the potential danger presented by the minibus. The defender’s conduct played at least an equal role to that of the pursuer in causing the damage and he was at least equally blameworthy. On this basis, contributory negligence should be assessed at 50%.

Adult pedestrian

The issue of causative potency arose again in another Court of Session case – McCreery v Letson [2015] CSOH 153, this time involving an adult pursuer.

The pursuer had travelled by bus to the Royal Dundee Liff Hospital. On arrival at the hospital, the bus pulled in at a stop directly opposite the entrance and behind a parked lorry. The pursuer alighted, walked behind the bus and started to cross the road towards the hospital.

At that point she was struck by a van travelling in the opposite direction to the bus. In court the pursuer did not give evidence as her injuries were such that she had no recollection of the accident. However, CCTV footage from the bus did capture her movements. Lord Bannatyne heard from a number of other witnesses including a crash scene investigator and ultimately held that the van driver had been negligent. His reasoning for this was that the driver did not react appropriately on seeing an earlier road sign warning of the possibility of disabled persons crossing to reach the hospital entrance, did not appreciate the risk of someone walking out from behind the bus and crossing the road, and did not consider these risks, even though his vision of the bus stop and any persons crossing the road was limited by the parked lorry.

Lord Bannatyne held that the van driver did not reduce his speed as he should have and therefore primary liability attached.

The focus then shifted to the question of contributory negligence. It was accepted on behalf of the pursuer that a finding of some level of contributory negligence was unavoidable given that she had walked onto the road from behind the bus. However, the level of contributory negligence was disputed.

The court was referred to Jackson v Murray and considered the respective “causative potency” of what was done and the respective “blameworthiness” of the parties.

Lord Bannatyne agreed with the comments in Jackson and prior cases that, when considering this issue in the context of a road traffic accident, the vastly different potential for causing destruction by a pedestrian and a vehicle driver should be taken into account.

However, the fact that a vehicle driver will normally have the potential to cause more damage than a pedestrian is not the sole matter for consideration. In this case, both the pursuer’s decision to cross the road at this point and the driver’s decision not to slow down to account for the hazards of the road were considered to have equally caused the accident. Without the presence of both factors, the accident would not have occurred.

Lord Bannatyne held that in situations like this, a finding of 50:50 apportionment was appropriate. The pursuer's damages were therefore reduced by 50%. It is worth noting that, as with Jackson, even though the van driver was found to be driving within the speed limit for the road, it was held that he should have slowed down on approach to the hospital entrance in the knowledge that there may be persons crossing the road at that point, and that he had a duty to take account of the potential for someone (again as in Jackson) doing something foolish, such as walking out from behind a bus.

Cyclists and motorists

It is clear from these cases that there are responsibilities that rest with pedestrians as well as vehicle drivers. Turning to the questions of cyclists, is the position much different? Again it is useful to look at the Highway Code as a starting point. Rule 68 sets out that cyclists must not “ride in a dangerous, careless or inconsiderate manner”.

This is often seen in sharp focus on narrow and country roads. The recent case of Nicol v Kupinski [2017] SC EDIN 71 looks at such a situation. The facts there are that on a fine, dry day in April 2015 the pursuer, Sally Nicol, was riding her bicycle within a group of four experienced club cyclists on the A811 Gartocharn to A809 road.

They were travelling at a speed of around 25mph in a so-called chain gang formation where the cyclists are in a close-packed line to maximise aerodynamic efficiency. The pursuer was second in the line behind the lead cyclist. Ahead of them on a straight section was a large lorry parked up on the left hand verge facing in the same direction as they were moving, with its hazard warning lights on. The lorry occupied most of the left hand carriageway and was tight to the verge. The road ahead appeared safe for the cyclists to overtake the lorry. The pursuer, who was found to be a credible witness, said she did her safety checks and looked ahead on approach before pulling out. However, just as the group started the overtaking manoeuvre and were within a few metres of the rear of the lorry, the driver without any warning slowly moved out from the verge to head off.

The lead cyclist had to take immediate evasive action and braked sharply to avoid colliding with the lorry. The pursuer also braked sharply but she was unable to avoiding colliding with the rear wheel of the lead rider’s bike. This resulted in her being catapulted over the handlebars and suffering serious injuries.

Sheriff Fife found liability to be established and held that the defender was 100% to blame. In doing so he rejected the defender's evidence that the lorry had not moved prior to the collision. He found that the chain gang, fundamentally designed for speed, was a safer method of group cycling because it took up less space and could move faster to avoid road hazards. He rejected arguments that the close proximity of the cyclists was hazardous and was implicated in the accident. No evidence had been put before the court during the proof to say what would have been a safe distance between the cyclists.

Narrow roads

The Highway Code again sets out what is expected on country and narrow roads. Rule 154 in relation to country roads states:

“Take extra care on country roads and reduce your speed at approaches to bends, which can be sharper than they appear, and at junctions and turnings, which may be partially hidden. Be prepared for pedestrians, horse riders, cyclists, slow-moving farm vehicles or mud on the road surface. Make sure you can stop within the distance you can see to be clear. You should also reduce your speed where country roads enter villages.”

Rule 155 says of single-track roads:

“These are only wide enough for one vehicle. They may have special passing places. If you see a vehicle coming towards you, or the driver behind wants to overtake, pull into a passing place on your left, or wait opposite a passing place on your right. Give way to road users coming uphill whenever you can. If necessary, reverse until you reach a passing place to let the other vehicle pass. Slow down when passing pedestrians, cyclists and horse riders.”

These issues were considered in the recent case of Daly v Heeps [2018] SC EDIN 01. In that case the pursuer was one of three club cyclists taking part in a competitive time trial event on country roads near Kinross in good, dry summer conditions. The pursuer was at the back of the trio. The road was in public use at the time, but signs and course marshals made motorists, including the defender, aware of the event. As the team moved along a 60mph single track road in chain gang formation at around 25mph, a large American-made Ford Explorer truck towing a leisure boat approached from the opposite direction also at 25mph. Neither the cyclists nor the truck slowed. The cyclists moved in close to the verge as the vehicle appeared to be straddling the centre of the road. The first two cyclists narrowly passed the vehicle but a projecting guide bar at the end of the trailer struck the pursuer's shoulder, knocking him off his bike and causing him severe injuries.

The defender's evidence that he was tight to his side of the road at the time of the accident was rejected by the court, but it accepted that the cyclists were, by contrast, very close to their edge of the road. The Highway Code requires a motorist to drive at a speed where he can stop within the distance he can see to be clear. The motorist admittedly could not do this at the time because of his speed and the weight of his rig. The greater causative potency attaching to a large vehicle striking a vulnerable user such as a cyclist resulted in no damage to the vehicle but severe, life changing injuries to the cyclist.

Despite the above, the court found each party to be equally at fault. Sheriff Braid held that each party had travelled at an excessive speed. In contrast to Nicol, however, here the pursuer said that at the material time he had his head down watching the wheel of his team mate in front of him and was not looking ahead as the vehicles passed. The chain gang formation, which in Nicol was characterised as being safe, was in Daly by implication criticised.

Turning to the case of Sandison v Coope [2016] SC PER 33, a cyclist in good conditions on a single track road running along Loch Rannoch took a blind bend and collided with a dog, as a result of which she suffered serious injuries. The cyclist was not travelling at a speed which permitted her to stop within her field of vision and was found 30% to blame, but the dog owner was found 70% at fault for negligent failure to control the animal adequately. The dog had no vicious or difficult propensities. Both rules 154 and155 above appear to have been engaged in assessing the fault of the cyclist.

Dual carriageway

Whilst the focus has been very much on country and narrow roads, the recent English case of Rickson v Bhakar [2017] EWHC 264 (QB) considered the very different conditions of a dual carriageway. Here the claimant cyclist was taking part in a time trial event on a dual carriageway when he collided with the rear of a white van being driven by the defendant. Prior to the accident the defendant had been travelling in the opposite direction to the claimant and intended to make a right turn at a designated crossing place on the road, taking him across the claimant's path. He thought it was safe to cross as he did not notice the claimant approaching. Negligence on the part of the defendant was admitted.

The issue before the court was whether or not the claimant had been contributorily negligent. The defendant alleged that as a result of the road layout his van would have been clearly visible, the claimant would have had ample time to adjust his speed on noticing the van, and had he done so even fractionally the accident would have been avoided. According to the defendant, the only explanation for the claimant's failure to do so can have been that he was not paying proper attention. The claimant, who had no memory of the accident and had been left paralysed from the neck down, denied any lack of attention and relied on the fact that he was an experienced cyclist who had raced on this route before and was aware of the need to be careful at the junction in question.

Based on the expert evidence it heard, the court concluded that if the claimant had undertaken any braking at all, the accident would have been avoided and it would have been possible for him to come to a complete stop before reaching the van. It was, therefore, satisfied that there was an opportunity afforded to a reasonable cyclist keeping a lookout either to come to a halt or to decelerate even slightly, and had that opportunity been taken the claimant would not have collided with the van. The judge was of the view that the claimant's failure to observe and react to the van was a culpable failing giving rise to a finding of contributory negligence.

However, his culpability was very much less than that of the defendant. He did not create the hazard; the defendant could make his turn at leisure and he failed to notice any of the race signs and monitors on the way to the junction, or the cyclists when he reached it. In all the circumstances the court made a finding of 20% contributory negligence on the part of the claimant. There was doubt as to whether at the material time the cyclist was looking up or keeping his head down to maintain an aerodynamic form.

Conclusion

What conclusions can be drawn from these cases? In general, as one might expect from Jackson v Murray, the greater causative potency of a vehicle compared to a pedestrian or cyclist has resulted in the lion's share of fault lying with the negligent motorist. Even where pedestrians have behaved with a high level of negligent disregard for their own welfare, contributory fault will often be no higher than 50% unless there are further aggravating factors such as the pedestrian being drunk or culpably reckless. In competitive cycling on public roads there is a conflict between cyclists travelling as fast as possible on the one hand (which may involve not looking up in order to maintain an aerodynamic shape or to avoid hitting a team-mate's wheel in front) and taking reasonable care for their own safety on the other.

As road use increases each year, so too do the advocates of commuter and recreational cycling. Further resources may require to be used in future for the segregation of cyclists and motorists to control an inevitable increase in serious accidents, and indeed there may be much to be said for more precise guidance in the Highway Code.