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FREE CHAPTER from 'A Practical Guide to Injury Claims Involving Cyclists' by Patrick Kerr & Helen Waller...
23/05/22. This book is designed to be a succinct overview of the key features of cycling litigation. It looks at cyclists as road users as well as group cycling, racing and professional cyclist claims. The book contains an essential overview of the key aspects of the new Highway code, introduced in January 2022. It also looks at the ins and outs of highways claims and considers the role of cycle helmets and other aspects that could give rise to a finding of contributory negligence on the part of a cyclist.
CHAPTER ONE – INTRODUCTION
Cycling continues to grow in popularity , led by an increase in female riders, according to the statistics released by Sport England. The annual Sport England Active Lives survey, published in October 2019 (before the pandemic), showed that approximately 100,000 more people were cycling for leisure and sport than in the previous year. That alone is reason enough to produce a book concerning the civil law surrounding cycling. Additionally, however, the latest edition of the Highway Code, which came out only weeks ago, has been viewed by many as significantly shifting the emphasis of the law and guidance surrounding cycling. The revised and updated Code has caused some consternation, at least within some news and social media outlets. On 15 February 2022, the Daily Express described the “fury” surrounding rules that are designed to protect vulnerable road users, reporting a “demand that cyclists should be obliged to take a ‘driving test’”. A day later, the Daily Mail described the revised Code as “controversial”, suggesting its implementation should be delayed so as to avoid a “spike in road rage incidents” given the “adverse impact on the country’s motorists”. The key complaint, it appears, is that “someone driving will have more responsibly to watch out for people cycling, walking or riding a horse.” Neither article analyses why less responsibility to watch out for more vulnerable road uses could be considered a good thing; or why the desire to make drivers more vigilant is too onerous.
In any event, it is hoped this book will help explain why the “new” rules are perhaps less novel or controversial than some commentators appear to be believe; and what impact they are likely to have on civil litigation involving cycling. The book is not, however, merely a recitation of the Highway Code. It also looks to analyse the current case law and statutory obligations relating to every aspect of cycling, from a road user’s duty of care and contributory negligence to injuries in the professional peloton. The aim is to give the reader a swift but comprehensive overview of the law as it stands, and some suggestions as to how it may evolve in the near future.
The book does not have a chapter specifically dealing with e-bikes and e-scooters as proper analysis of these forms of transport would likely amount to a volume in itself, not least because they have their own rules and regulations separate to fully self-propelled bicycles. For instance, there is an age restriction to electric bikes (you need to be 14 years or older to ride one); there is obligatory information that must be displayed (the power output or the manufacturer of the motor / the battery’s voltage or the bike’s maximum speed); and the e-bike must be restricted in maximum power output and must cut out at a certain speed (250 watts and 15.5mph respectively). However, it is worth noting that if an e-bike does conform to these strictures, it is classed as an “electrically assisted pedal cycle” (EAPC) and treated as a normal pedal bike and therefore can be ridden on cycle paths and anywhere else pedal bikes are allowed. If they do not conform, they are classed as motorcycles or mopeds and need to be registered and taxed – and require a driving licence and a crash helmet in order to be ridden.
For the same reason, there is no chapter on mobility scooters or powered wheelchairs, both of which have their own set of rules depending on type: class 2 – which cannot be used on the road and are limited to 4mph – and class 3, which can be used on the road and are limited to 8mph. They are treated very differently to pedal bicycles, with all types of mobility scooter and powered wheelchair being legally allowed on footpaths and pedestrian areas1, but being banned from cycle paths marked ‘cycle only’.
The law surrounding the introduction of semi-autonomous vehicles on to our roads, on the other hand, would not amount to more than a few paragraphs, let alone a chapter or book, so again, this is not subject to much analysis in (this edition?) of the book. Obviously, this is an area of law which will require considerable legislation in due course, but at present, there is little to say other than we have to wait and see.
These topics aside, it is hoped that this book is a useful, practical guide to an area of litigation which is increasing in volume and significance. As published by HM Government on 30 September 2021, cycling fatalities have increased by 5% from 2004 to 2020; serious injuries have rocketed by 26%; and pedal cycle traffic has grown by 96%. Between 2015 and 2020, an average of 2 pedal cyclists are killed and 83 seriously injured per week2. Most commonly, these deaths and serious injuries involve another vehicle, overwhelmingly either a car or a heavy goods vehicle3, so it is fair to say, the law surrounding the world of cycling is worth knowing.
Insofar as it is ever appropriate to dedicate a slim volume like this to a person, we would like to dedicate it to our friend and colleague, Richard Viney, who sadly lost his life in a cycling accident in August 2021. A brilliant barrister and experienced cyclist, his loss is, and will always be, keenly felt by many of us. May he ride in peace.
The content of this book is believed to be accurate and up-to-date based on the law as it was on 15 th March 2022.
MORE INFORMATION / PURCHASE THE BOOK ONLINE
1 Bicycles are statutorily banned from doing so: s. 72 of the Highways Act 1835 (for an offence in England and Wales) and s. 129 of the Roads (Scotland) Act 1984.
2 https://www.gov.uk/government/statistics/reported-road-casualties-great-britain-pedal-cyclist-factsheet-2020/reported-road-casualties-in-great-britain-pedal-cycle-factsheet-2020
3 It should be emphasised, however, that the government factsheet rightly points out that factors contributing to a collision or accident are largely subjective as they reflect the opinion of the reporting police officer. To quote the factsheet: “They are assigned quickly at the occurrence of the collision and often without extensive investigations and so should be interpreted with caution. They are likely to be affected in part by preconceptions police officers have of certain vehicle groups.”
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Pleading and proving mitigation of loss: Mathieu v Hinds & Anor [2022] EWHC 924 (QB) - Rochelle Powell, Temple Garden Chambers
25/04/22. The judgment of Mrs Justice Hill in this case deals with a number of interesting issues. This article focuses on pleading and proving mitigation of loss.
The claimant, Manuel Mathieu, was an up and coming artist, studying for a Masters’ degree in Fine Art at Goldsmiths College. On 28 November 2015 he was struck by a stolen moped, driven by Tony Hinds and insured by Aviva plc. Liability was admitted. The claimant sustained a serious brain injury in the incident. However, he made a good recovery and went on to become an established and successful artist. The claimant’s case was that the headaches, fatigue and cognitive issues from which he continued to suffer as a consequence of his brain injury, had hampered his productivity. As a result, he was not able to produce and sell as much art as he would otherwise have been able to. The second defendant accepted that the claimant suffered a serious injury for which he is entitled to some damages, but contended that the claimant had failed to mitigate his loss by not pursuing (a) treatment aimed at preventing headaches; and (b) further fatigue management sessions.
The Law
Mrs Justice Hill provided a helpful review of the well-established general legal principles relating to the mitigation of loss at [87]-[92]. In summary:
(i) A claimant must take all reasonable steps to mitigate loss consequent upon the defendant’s breach and will be debarred from claiming “any part of the damage which is due to his neglect to take such steps” (British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd (No. 2) [1912] AC 673 at 689, per Viscount Haldane LC).
(ii) In mitigating their loss, a claimant is only required to...
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Fundamental Dishonesty: The Importance of Adequate Warning To A Claimant - Nicholas Dobbs, Temple Garden Chambers
20/04/22. In Jenkinson v Robertson,[1] the Claimant appealed against a finding of fundamentally dishonest that had resulted in his claim being dismissed in its entirety pursuant to section 57(2) of the Criminal Justice and Courts Act 2015. The Claimant had sustained multiple injuries in a road traffic accident and at trial the principal issue between the parties was whether there was any causative link between the accident, the mid-back injury he claimed to have suffered and the development of a Schmorl’s node or any persisting thoracic pain symptoms.
The Claimant relied on three grounds of appeal: (1) he was not given sufficient notice of, or opportunity to respond to, allegations of fundamental dishonesty; (2) the Judge wrongly reversed the burden of proof, effectively requiring the Claimant to prove that he had not been fundamentally dishonest; and (3) the Judge was led into error, or was simply wrong, in relation to each of the factors on which he based his decision that the Claimant was fundamentally dishonest. The appeal was allowed on the first and third grounds.
The findings on appeal in relation to the first ground of appeal are perhaps of particular interest. The appeal judgment reviewed various well-known authorities on fundamental dishonesty (at [19]-[24]) before summarising the key principles (at [25]), including that while an allegation of fundamental dishonesty does not necessarily have to be pleaded, the key question is whether the claimant has been given adequate warning of the matters being relied upon in support of the allegation and a proper opportunity to address them.
The section 57 defence can be raised at a late stage, even as late as in closing submissions. However, where the claimant is a litigant in person, the Court will ordinarily seek to ensure that the allegation is clearly understood (usually by requiring it to be set out in writing) and that adequate time is afforded to the litigant in person to consider the defence. It was held (at [32]):
32. It is in the interests of basic fairness that a Claimant should be given adequate warning of, and a proper opportunity to deal with, the possibility of a finding of fundamental dishonesty. The consequences of such a finding are severe, and rightly so, but the safeguards against an unjust finding are the giving of adequate notice of the allegations and a proper opportunity to respond. What amounts to such notice or opportunity in a given case will depend on the circumstances. Ordinarily, the allegations will be either pleaded or set out in writing, but there may be cases where that is not necessary. The fact that the Claimant is a litigant in person is a factor to be taken into account in assessing adequacy of notice and the opportunity to respond but that fact does not of itself demand that in all cases involving litigants in person, there has to be written prior notice of the allegations.
It was notable in the present case that the Claimant had...
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Failure To Attend A Hearing & CPR 39.3(5) - Nicholas Dobbs, Temple Garden Chambers
25/03/22. In Miah v Ullah,[1] the High Court considered whether to grant the Defendant relief under CPR 39.5 for failing to attend a disposal hearing. The Claimant had applied for relief under section 50 Administration of Justice Act 1985, to remove the Defendant as administrator and to be appointed substitute administrator in his place. An unless order was made giving the Defendant 14 days from service of the order to file and serve any evidence on which he wished to rely to contest the claim. He did not do so.
At a subsequent disposal hearing, the Defendant was removed as administrator and the Claimant was appointed as substitute administrator in his stead. The Defendant applied to set aside the order. The Court reiterated that there are only certain circumstances in which an order can be set aside, and if a party does not identify the legal basis for setting aside an order and persuade the Court that the relevant conditions are satisfied, or the relevant test is met, then the order must stand, and only an appeal court would be able to overturn it.
The Defendant accepted that he had received notice of the hearing but asserted that he did not fully understand it. He accepted he received a letter requiring him to provide his email address to the court for a remote hearing but did not understand everything and could not find a solicitor to represent him. There was some inconsistency and lack of clarity in his evidence, but it was in effect accepted that he did not understand the order, could not afford legal advice, did not receive legal advice at the time and that he only became actively aware of the hearing after it occurred.
CPR 39.3(5) provides that the court may grant the application only if the applicant: (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial. It was agreed the Defendant had acted promptly, it was therefore necessary to decide whether there was a good reason for not attending the hearing and whether the Defendant had a reasonable prospect of success at such a hearing.
The Court considered the commentary in the White Book 2021 at 39.3.7.2, and held that when considering whether there was good reason for not attending the hearing, it must “consider each case in light of all the relevant factors for non-attendance and, looking at the matter in the round, determine whether the reason is sufficient for the court to exercise its discretion in favour of the defaulting party”. Further, once a party was aware that proceedings had been served, they must expect to receive communications personally from the opposing party and/or the court.
It was held that the Defendant had not demonstrated good reason for not attending the hearing. He was aware of the proceedings. He had sought but failed to obtain legal advice. He received but failed to act on the order giving him notice of the hearing. The apparent language barrier was not of itself a good reason for not to attending. It was reiterated that for the court to deal with cases justly and at proportionate cost, and to give effect to the overriding objective, litigants who are aware of proceedings served on them must engage with those proceedings.
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Impecuniosity documents: when should they be disclosed? Allianz Insurance PLC -v- Jonathan Holt (3rd December 2021) - Rochelle Powell, Temple Garden Chambers
23/03/22. The applicant in the case, Allianz Insurance plc, was the prospective defendant in a claim for losses which included the cost of a hire car. The application sought pre-action disclosure of the prospective claimant’s impecuniosity documents, namely:
(i) Statements in respect of all bank, credit card and savings accounts covering the period of hire and 3 months before; and,
(ii) Wage slips or other proof of income covering the period of hire and 3 months before.
This was one of a number of applications issued by the applicants: all related to respondents who had hired vehicles from Auxillis Services Limited, who had in turn instructed Principia Law Limited as solicitors. To resolve the generic issues raised in those applications, the instant case was selected as the lead case.
The applicant’s argued that the prompt identification of impecuniosity as an issue and the consequent disclosure of the sort of documents sought was...
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More Articles...
- When is a Party not a Party? - Soyab Patel, KLS Law Solicitors
- Case Report: H v P - Mary Kay, Spencers Solicitors
- A reminder of the consequences when a witness statement does not comply with the rules: Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 79 (Ch) - Rochelle Powell, Temple Garden Chambers
- Fundamental Dishonesty: Cojanu v Essex Partnership University NHS Trust - Nicholas Dobbs, Temple Garden Chambers
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