Q&A from Cycle Magazine
The following are Q&A’s from CTC’s Cycle magazine reproduced with kind permission from CTC. All answers are provided by Russell Jones & Walker’s CTC partner, Paul Kitson.
Cars and contra-flow bike lanes
October/November 2006
Dangerous Bike Dilemma
Against my advice, a friend of mine bought a mountain bike from a catalogue shop for £99. While it apparently complies with British Standards, I'm concerned that it may simply break if he uses it off-road. If it does, and causes him an injury, is there anything he can do about it?
If a cyclist suffers injury as a consequence of a defect to the bike then there may be potential claim. There are two types of claim that can be brought in these circumstances.
Action against a cycle shop or retailer - The retailer owes a duty of care in contract and in negligence. There is a duty to provide safe equipment and to provide safe repairs. These duties are less strict in respect of second hand goods.
Under section 14 of the Sale of Goods Act 1979 it is implied into the contract of sale that the goods are of satisfactory quality and that they are fit for their purpose. Their is also a duty under section 13 of the Supply of Goods and Services Act 1982 for a supplier of a service to provide it with reasonable care and skill.
Action against a manufacturer - A manufacturer owes a statutory duty under the Consumer Protection Act 1987. The Act applies to any goods and this would include cycles and equipment. A good is defective if 'the safety of the product is not such as persons generally are entitled to expect'. If a person suffers injury as a consequence of a defect to the cycle or equipment then the manufacturer coul be liable. If the retailer or manufacturer point out that the bike is unsuitable for off-road use then they may have a defence but this would depend on the circumstances of the accident.
August/September 2006
Skinny Cycle Lanes
My local council have recently installed a cycle lane that is so narrow that the white bicycle logo cannot fit into it. On contacting my councillor, she discovered it was purely a traffic calming measure - not for cyclists at all. Is there no legal minimum width for a cycle lane? If not I feel CTC should try to get one.
There is no legal minimum width for a cycle lane. There have been a number of publications from various organisations such as TFL, TRL and the Department of Transport where guidance has been given on cycle lanes. It is accepted that ideally they should be 2 metres wide and that minimum should be 1.5m. If the cycle lane is in the vicinity of a narrowing over a short length then a slightly reduced width may be acceptable. However in practise in many areas, such as London, one often encounters narrow cycle lanes. These may fall below the ideal width but they can sometimes be preferable to not having one at all. There is also no legal minimum width for a road. The dimensions of roads and cycle lanes and their layout is ultimately a matter of judgement for the highway authority.
June/July 2006
Pavement Cycling 2
The last issue reported that cycling on pavements is prohibited by Section 35 of the Highways Act 1980. Does this include cyclists of all ages and cycles of all descriptions? I ride to school with my five-year old. I ride on the road alongside Luke, who rides on the pavement. The route is very quiet. Are we committing an offence? If so, how are we supposed to get kids to ride their bikes safely to school? Were we committing an offence when he was younger and rode his scooter on the pavement, or when he was younger still and rode hi tricycle?
Under section 72 of the Highway Act 1835 there is an offence for riding a bicycle on a footpath. This is punishable by a Fixed Penalty Notice of £30 under Section 51 and Schedule 3 of the Road Traffic Offences Act 1988.
There may also be offences committed in realtion to 'walkways' (which is a footpath under a walkway agreement) under Section 35 of the Highways Act 1980. However the conditions on which these can be ridden is dependant on local council bye-laws, which vary from council to council and for which the relevant local council will need to be contacted.
For both of these matters there will be no criminal liability where the 'offender' is under the age of 10 years old. So as long as the instructing adult is on the road at all time, there is no offence where a child of five is riding on the pavement.
February/March 2006
Cycling in Bus Lane
My Local Authority has just completed a revised road works layout on a major road into town. They have created a bus lane of approximately 300 metres in length and an off-road cycle track running parallel. The cycle track puts riders into the bus lane just prior to it's termination. If a cyclist chooses to ride on the cycle track would they be allowed in the bus lane, or are they expected to ride out in the carriageway? And if not using the cycle track, could any claims for accidents be reduced?
In the absence of legislative assistance, guidance is found in Section 56 of the Highway Code. This section permits a cyclist to ride in a bus lane unless it is signed 'bus only'. In addition, Section 47 of the Code instructs cyclists to 'use cycle routes when possible. They can make your journey safer'.
It is important to distinguish between cycle tracks and cycle lanes. Cycle tracks are usually located away from the road, occasionally alongside footpaths or pavements. Cycle lanes are marked with white lines adjacent to a carriageway.
It is arguable whether a cyclist is exposing himself to a greater risk of injury by travelling in the bus lane as opposed to an available cycle lane. However, some cycle lanes are badly designed. In some circumstances it may be safer to remain on the main carriageway.
I am unaware of any case law where a cyclist was found to be contributory negligent for an accident where he rode on the carriageway instead of a cycle lane or cycle track. In my opinion, any such finding would be harsh.
December/January 2005/06
Pavement Cycling
What is the law regarding cycling on pavements? In a conversation with a retired police officer, he described a court case reviewing an injury claim resulting from a cyclist being hit from behind by a car on a country road at night. The court decision had weighted some responsibility toward the cyclist because he had not made use of an adjacent pavement that would have been a much safer place to ride under the circumstances. The police officer went on to explain that cycling on the pavement would only become an offence if the cyclist’s behaviour were endangering others (e.g. pedestrians) rather than being an offence in itself. Can you clarify what the legal position is regarding cycling on pavements?
Cycling on pavements is prohibited by Section 35 of The Highways Act 1980. The Act provides that it is an offence for a person to wilfully ride upon any footpath. Any such person found committing this offence is liable to pay a fine in addition to any damages for injury caused to another person. Where a person is found to be in contravention of this section, a police constable or special community support officer will issue them with a fixed penalty notice.
It is possible that a person cycling on the pavement could also fall foul of the offence of Careless and Inconsiderate cycling under Section 29 of The Road Traffic Act 1988. I am unaware of any reported case where a judge has found a claimant cyclist wholly or partly to blame for an accident involving a motorist because they chose to cycle on the road rather than the pavement. Given that cycling on the pavement is illegal, it would appear that any case where a judge took such a view would have been wrongly decided and would be overturned on appeal.
The situation could be viewed differently if there was an adjacent cycle lane, but even then there is no legal obligation for a cyclist to use the cycle lane rather than the carriageway.
October/November 2005
Overtaking Car Queues
Where does the liability lie in the following everyday, urban commuter cycling scenario? Commuting cyclists as a matter of course overtake stationary or near stationary queues of traffic, sometimes on the inside of the queue, sometimes on the outside of it. Accidents occur when car drivers turn into (or emerge from) side roads, across the paths of overtaking cyclists.
I would think it rash for a car to overtake a queue rather than to take one’s turn in it, and the liability would presumably be wholly on the overtaker. Does this rule also apply to cyclists who are overtaking, or is it an accepted fact of urban motoring life that cyclists do overtake queues, thus shifting most of the liability to the car driver? I appreciate that there are often attenuating factors.
The Highway Code, as often, skirts round the area, although Rules 155 and 156 appear to weigh in the cyclist’s favour so far as right turns are concerned.
Given that cyclists often overtake in this way, a driver who fails to check carefully before making such a manoeuvre is likely to have acted negligently. However, although one party may be found primarily negligent the injured cyclist can sometimes be found contributorily negligent. Although there is some authority that a cyclist is a ‘vulnerable road user’ and this should be taken into account when assessing the percentage blameworthiness, the courts have been critical of cyclists or motorcyclists who are injured when overtaking traffic.
For example, in the case of Powell v. Moody, a motorcyclist overtook a stationary line of traffic two abreast and was struck by a defendant’s car exiting a side road to his left. The Court of Appeal held that an apportionment of 80% blame on behalf of the motorcyclist was reasonable, because any vehicle which jumped a queue of stationary vehicles was undertaking an operation fraught with great hazard and which had to be carried out with great care.
In the case of Worsolf v. Howe, there were two lanes of traffic, the nearside lane was for traffic intending to go straight on and the outside lane for traffic intending to turn right at the junction. The claimant rode his motorcycle in the offside lane past a line of stationary vehicles to his left. The defendant drove his car out from a roadway to the left of the queue of traffic past a stationary vehicle in the queue to turn right. The claimant rode into the nearside front of the car and sustained injuries. It was held on appeal that the apportionment of blame of 50/50 suggested by the Judge in the lower court should be accepted.
When conducting a manoeuvre that is fraught with danger, there is a duty on the cyclist to take extra care for his own safety. A cyclist travelling too fast when overtaking is likely to be found the author of his own misfortune to a large degree, with a resultant reduction in any damages awarded. A failure of a driver to indicate, or do so at the last moment, would be taken into account by a judge when assessing primary liability and contributory negligence, as would breaches of the Highway Code generally. However, it is worth noting that there is no principle of law laid down in the reported authorities and every case will turn on its own facts.
Cycle August/September 2005
Pedestrian collision
Being wary of ill-informed police officers, what can the CTC tell me regarding obligations of cyclists when involved in a collision with a pedestrian (e.g. on a road where both are allowed to be)? Does the cyclist have to give their name and address? Do they have to report the accident to the police?
In the case of an accident owing to the presence of a motor vehicle on a road where someone suffers personal injuries or other damage, the driver of the vehicle must stop and give his name and address. If for any reason he does not do so he must report the accident to the police within a reasonable time. The driver must also produce his certificate of insurance to the other person or to a constable if someone other than the driver is injured.
However, the position is different in the case of an accident not involving a motor vehicle. Pursuant to section 28 and 29 of the Road Traffic Act 1988 there are offences of reckless cycling, and careless and inconsiderate cycling. Section 168 (b) of the Road Traffic Act 1988 provides that the rider of a cycle who is alleged to have committed an offence under section 28 or 29 who refuses on being required by any person having reasonable grounds for so requiring, to supply his name and address or gives a false name and address is guilty of an offence.
Therefore, in practical terms if you collide with a pedestrian whilst cycling it is always advisable to provide your name and address if it is asked for by anyone. You are not required to report the incident.
Saying that, if the injuries to the pedestrian were serious it would be advisable to report the incident immediately because a personal injury claim could be bought against you, and if you have the benefit of CTC third party public liability insurance you would be a viable defendant to pursue. The police may decide to attend the scene to interview witnesses and prepare an accident report. If this evidence were supportive it would increase the prospects of successfully defending such a claim.
August/September 2005
Court Action
Last year I was knocked off my bike by an overtaking car and suffered a smashed right shoulder. I am not trying to sue the driver.
I plan to issue a summons against the motorist, but in effect I will be suing her insurance company. Already my solicitors have been dealing exclusively with them and of course the insurance company has vast resources to fob off any claimant with derisory compensation.
My question is this: what right has an insurance company got to poke its nose into a civil dispute between myself and their client? Can’t I tell them to mind their won business and pursue my claim against the motorist in person without any interference?
You have posed a good question. The answer is really to do with the practicalities of litigation. When a claimant sues a motorist they do not sure the insurance company. However it is very rare that a claimant would deal directly with a defendant, and in fact this would not be advantageous.
The Court’s role is to resolve issues in dispute. The claimant will put forward his case in as clear a way possible and the defendant will put forward a clear defence so that the parties can then focus on what is in dispute. Most individuals will not be experienced in litigation and will not be able to properly set out their case without assistance from either their insurer or solicitors. It would do a claimant no favours to deal with an individual prior to the issue of proceedings. It would most likely simply delay the case, as the individual would be likely to ignore correspondence, generally obfuscate and withhold evidence until the Courts were involved.
However, an insurance company is more likely to take a more sensible and reasonable approach to the claim because they will be aware that there are potential adverse consequences regarding costs if they did not do so. Furthermore, it is highly preferable to deal with an insurer rather than an individual as an insurer is likely to satisfy any judgement obtained without any difficulty.
It would be unwise to refuse to have any dealings with the insurance company as they could potentially argue there should be adverse costs consequences for your failure to provide them with information about the accident and evidence. Having paid the premiums, the motorist can quite plainly take the benefit of an insurance policy. The insurer will instruct a solicitors firm who will instruct an appropriate barrister. The legal system in the UK is adversarial – neither party can control which legal representative the other should have.
Faced with a difficult insurer it is usually the best tactic to commence Court proceedings and proceed to trial. If the case is strong then the insurer is likely to settle before trial. Fewer than 5% of personal injury claims reach trial.
June/July 2005
Down the Drain
I saw with interest the picture of the drain covers in the Feb/mar issue with their slots running in the direction of the road instead of at 90 degrees. Are the former illegal? In Country Durham where I and many others cycle regularly there must be hundreds if not thousands of these drain covers.
It is not illegal to place drain covers with their slots running in the direction of the road instead of 90 degrees. Nonetheless, if a cyclist is thrown from his bicycle and injured by his cycle wheel rolling into such a drain cover slot, a claim for damages may succeed – depending on the facts of the case.
The highway authority has a statutory duty to maintain a highway, and as part of the fabric of the road this will include drain covers. The duty is to put the highway in such good repair as renders it reasonably passable for ordinary traffic. It is therefore necessary to ask if a reasonable person would regard a particular drain over in a particular position as presenting a real source of danger, and in every case that is a question of fact and degree.
Normally, in the case of a pothole, a court would then go on to consider if the highway authority has proved the statutory defence – that the highway authority has taken such care as in all the circumstances was reasonably required to secure that the highway was not dangerous to traffic. In essence, to escape liability the authority would have to prove they both instituted and observed a sufficiently reasonable system of inspection and repair.
However, it is my view that the case you describe is different because the highway authority, rather than traffic and the elements, may have actually created the danger. There is a Court of Appeal ruling which states a local authority cannot stand idly by whilst a hazard it had created (a dangerously designed footpath in that case) lay open to the public. However, every case will of course turn on its own facts.
It may also be appropriate to sue the ‘undertaker’ of street works such as a utility company for their failure to properly reinstate the street, if they replaced the drain covers parallel to the road.
However, the highway authority’s duty is non-delegable and a second defendant such as a utility company may only need to be brought into the proceedings for procedural expediency.
April/May 2005
Drinking and Riding?
In your response to Rowan Dixon in the Dec/Jan issue of Cycle, regarding the drink-ride law, you say that a rider is not legally obliged to provide a breath sample, yet a person who cycles whilst unfit to ride through drinks or drugs is guilty of an offence (section 30 of the Road Traffic Act). The question that follows is: how do the police decide whether you are guilty of the offence? Surely if you refuse to give a sample it will be taken as an admission of guilt? I wondered if you knew of any cases where the ‘unfit to ride’ charge has been disputed?
Obviously I’m not advocating the practice of drink-riding, but it’d be nice to know what you can get away with! The advice I was once given is that if you’re riding in a state that’s enough to alert the police to stop you in the first place. Then that’s enough for them to find you guilty.
On the subject of speed limits, is it possible to get flashed by a traffic speed camera on a bike or am I wasting my time?
A police officer must have reasonable grounds to believe that a cyclist is drunk before apprehending him. The reported cases make it clear that whether a cyclist is under the influence of drink or drugs to such an extent that he is incapable of having proper control of his bicycle and is therefore guilty of an offence, is a question of fact. Before a cyclist can be found guilty it must be proved beyond reasonable doubt that the offence for which he is charged has been committed. In the absence of a breath test or other specimen a court would consider the available witness evidence from the police officer and any other relevant person. The refusal of a cyclist to provide a breath sample cannot be taken as an admission of guilt.
With respect to drink riding, you say that you would like to know what you can get away with. I am afraid I cannot advocate drinking any alcohol whilst cycling, but the advice you have been given would seem sensible. Interestingly, it is also an offence under s.12 of the Licensing Act 1872 to be in charge on a highway or any other public place of a carriage, horse, cattle or steam engine. A bicycle or tricycle is a carriage for this purpose. If a person is drunk and in charge of a bicycle, the appropriate offence is that under s.30 of the Road Traffic Act 1988, which is a more serious offence. However, if you do get drunk and then walk home with your bicycle you may be considered a person in charge e.g. pushing a pedal cycle. And will therefore have committed an offence only under s.12 of the Licensing Act 1872, which can result in imprisonment up to one month. This particular law applies to England and Wales only.
As regards speeding, the provisions of the Road Traffic Act 1984, which set out the speed limits for particular vehicles on particular classes of roads, apply only to motor vehicles and therefore specifically exclude pedal cyclists. I do not know if a traffic speed camera could flash a cyclist. However, I am aware of a comment made by a Sergeant in the Camera Enforcement Unit of West Midlands Police published in the Daily Mail April 1st 2000, where he says that ‘in theory’ any vehicle breaking the speed limit could activate a camera, but that he was not aware of any cyclists being caught speeding by camera. In any event there would clearly be a problem in identifying the speeding cyclist.
April/May 2005
Two by Two
In a motoring supplement in the Sunday Times last November *14th Nov, page 10), there was a biased article on cyclists and a paragraph that read: ‘If stopped by one of Redman’s team of cycle officers, cyclists could face anything from a simple verbal warning to a fixed penalty fine of £30 for riding two abreast.’ My 1999 edition of the Highway Code, Rule 51, says ‘You should not ride more than two abreast.’ Which is correct, please?
The Highway Code does state in Section 51: ‘You should not ride more than two abreast.’ Whilst this is recommended by Highway Code, through the use of the term ‘should’, as far as I can see it is not in any way a legal duty and there is no indication that you must not ride more than two abreast.
Furthermore, the Highway Code is also saying that you should not ride ‘more’ than two abreast. There is no specific comment that riding two abreast should be avoided or that it is unacceptable conduct on the road.
Thus, the query of whether you could be warned or fined for riding two abreast cannot be right. It is a legal manoeuvre and does not even warrant specific criticism in the Highway Code.
June/July 2004
Cars and contra-flow bike lanes
Can you explain to me the liability issue regarding contra-flow cycle lanes that are on or adjacent to roads? For example, let’s say a cyclist is travelling alongside a dual carriageway on a cycle lane, in the opposite direction to the traffic, and he meets a car coming towards him because the driver has strayed into the cycle lane. Given that some cycle lanes are only ‘advisory’ (i.e. drivers face no penalty if they do drive or park in them), can you tell me who would be at fault in my example? The cyclist? The driver? Both of them?
In the example you give, the car driver would be held liable. The Highway Code (which may be used in evidence to establish liability) classes cyclists as ‘vulnerable road user(s)’. The driver of the car is in effect controlling what has been referred to by some judges as, ‘an instrument of death’ and so he will have a duty to take extra care when passing cyclists, especially on contra-flow cycle lanes. The Highway Code also notes that cyclists may suddenly need to avoid uneven road surfaces and obstacles or oily, wet or icy patches on the road and advises to give them plenty of room. Motorists who ignore these recommendations do so at their peril.
A cyclist may be considered partly at fault if the accident occurred at night if the bicycle was not fitted with front and rear lights and a red rear reflector as required by Regulations 18 and 24 of the Road Vehicles Lighting Regulations 1989.
If the contra-flow cycle lane was poorly designed or maintained, forcing the cyclist onto the road and into the path of an oncoming motorise, then the Highway Authority could be held partly liable. But this would depend on the particular circumstances of the case.
Cycle October/November 2004
Dealing with Drivers
Earlier this year a cyclist was jailed for slashing car tyres. In The Guardian (17/04/04) an AA spokesperson said that the cyclist could have gone to the police after being splashed by a car – the straw that broke the camel’s back – and the driver ‘could have been fined £2,500 and received up to nine penalty points on his or her licence for driving without due care and attention.’ That sounds wonderful. But how feasible is it? How does one complain to the police?
Driving without due care and attention is an offence pursuant to section three of the Road Traffic Act 1988, and a person found guilty of such an offence may indeed be liable for a fine of up to £2,500. Furthermore, endorsement of the offender’s licence is obligatory and three to nine penalty points may be attributed. Disqualification is possible.
Whether or not the driver of a car who splashes a cyclist has committed this offence is dependent upon whether he was exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. This is an objective standard fixed in relation to other users of the highway and is unaffected by the fact that the driver may be on his way to an emergency. As there are no limit to the forms this offence may take, I see no reason why splashing a cyclist could not result in a prosecution, especially if this was easily avoidable. Of course, this would depend on the particular circumstances of the case.
If the driver caused the cyclist to fall off or be injured the driver could be guilty of the offence of dangerous driving, an offence pursuant to section two of Road Traffic Act 1988. Driving is considered dangerous if it falls far below what would be expected of a competent and careful driver; and it would have been obvious to a competent driver that driving in that way would be dangerous.
Dangerous driving is a relatively serious offence: a person found guilty is liable on summary conviction to imprisonment of up to six months, a fine of up to £5,000, or both. On conviction in the Crown Court the maximum sentence is two years and an unlimited fine. A person found guilty of dangerous driving is usually disqualified, but if not three to 11 penalty points may be attributed.
If you are splashed or fall off as a result of careless or dangerous driving, you should immediately attempt to get the vehicle to stop and ask for the contact and insurance details of the driver. By Law the motorist is obliged to provide his insurance details. You should also ensure you record the vehicle registration. It is imperative to take down the contact details of any witnesses. You should report the incident to the police and keep a record of the incident reference number. If you are injured the police should attend the scene to prepare an accident report and take statements. The best way to fight your corner is to ensure there is as much witness evidence as possible.
There is also the option of a civil claim against the driver. I shall be dealing with this subject in detail in a subsequent article.
February/March 2004
Debris and ‘phones
As it now seems to be an all-year round activity for local authorities, farmers etc. to flay/trim hedges and mow grass verges, what are their legal obligations when littering the road surfaces with their debris? I have suffered several punctures in cycle tyres/tubes, and in January this year one in the sidewall of my car tyre, which cost me a new tyre. I believe that Lancs DA conducted a campaign in their area some years ago, resulting in successful prosecutions.
Also, another scourge of our times – mobile phones! I’m witnessing more and more instances of cyclists receiving and making calls or texts while riding, with the consequent increase in the risk to their own and others’ safety. Is legislation going to include a ban on the use of mobile phones on cycles as well as in motorised vehicles?
Mr Raymond Eaton posed a comparable question, which I responded to in the June/July issues of the CTC magazine. To answer Mr Drinkwater’s question: the position is that by s/148 of the Highways Act 1980 is it an offence for a person to deposit, ‘….any rubbish,’ on the highway, and if found guilty they may be liable to a fine up to £1,000. Section 149 of the act requires a highway authority to request that a person who deposits something on a highway remove it, so long as it constitutes a nuisance. If they fail to do so the highway authority can complain to a Magistrates Court and request a removal and disposal order. Finally, s.161 provides that it is an offence if a person ‘...deposits anything whatsoever on a highway in consequence of which a user of the highway is injured or endangered’; again, if the offender is found guilty they may be liable to a fine up to £1,000. These sections do not apply to Scotland.
If a cyclist is injured as a result of hedge/verge debris being left on the highway, they may be able to bring a civil action for damages under the common law tort of nuisance. Generally is it a nuisance at common law to hinder the reasonable use of the highway or create a source of danger. However, there can be no compensation for mere inconvenience and delay.
By virtue of the Road vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 and with effect from 1st December 2003 is an offence to use a hand-held mobile phone when driving a vehicle, extending to use while stationary at traffic lights or in a queue of traffic. However, it will not be an offence for a pedal cyclist to operate a hand-held phone. Nonetheless, I would recommend that cyclists do not use a mobile when cycling as they may be distracted and this may result in an accident, causing injury to someone or themselves. The injured person could then bring a successful claim for damages against the cyclist. If the cyclist lost the case and were not insured (via, for example, the CTC third party public liability insurance policy) they would have to pay damages and legal costs out of their own pocket.
Furthermore, if a cyclist was injured and brought an action for damages, a defendant – even if they accepted primary responsibility – could seek to argue that the cyclist was contributorily negligent. Such an argument has not yet been tested in the Courts but as all cyclists have a duty not only to take reasonable care of other road users but also of themselves, a finding of contributory negligence is quite possible, depending upon the facts of the case. If a cyclist were found contrirbutorily negligent any compensation received would be reduced in accordance with the percentage they are found to blame.