In a recent case the claimant, Gemma Brushett, was awarded damages of £4,161 plus costs for injuries suffered by her as a pedestrian in a collision with the defendant cyclist, Robert Hazeldean, despite the fact that at the time of the collision the claimant was not paying attention to the road but was apparently looking at her phone. The defendant, on the other hand, was cycling at only 15mph, through a green light, and sounded his horn to warn of his approach. Nevertheless Judge Shanti Mauger, sitting in Central London County Court, found that

“the defendant owed a duty to other road users to drive with reasonable care and skill.  On his own account the junction was not completely clear. … The defendant did fall below standard to be expected of a cyclist as he did make a judgment call that it was clear to proceed when in fact there were pedestrians in the carriageway. He had some understanding that when pedestrians are established on the road they must be given way.  He fell below the standard to be expected.’”

There is a note of the judgment published on his blog by Aneurin Moloney, counsel for the claimant, from which the above is quoted. Although the claimant was found contributorily negligent to the extent of 50 per cent, she was awarded damages and costs, whereas the defendant, who did not counterclaim in respect of his own injuries, is expected to pay her costs. There is some dispute as to the amount of those costs, which have yet to be determined. According to Moloney, ‘The claimant had been awarded more in damages than two previous Part 36 offers she had made in attempts to settle her claim without going to trial’. Some reports have suggested that her entitlement to costs might push the total award to £100,000, though the true figure may be around £20,000.

Even so, this is a sizeable sum and draws attention to the need for cyclists to protect themselves against the potentially disastrous costs of a negligence claim against them, ideally by some form of insurance, and to take legal advice the minute a claim looks likely. In this case, it seems a fundraiser has now been launched to help the defendant cyclist pay his costs. But you can’t rely on being bailed out after the event.

Negligent collisions with other vehicles

Claims for damages for injuries sustained in cycling accidents frequently involve contributory negligence — as much if not more often on the part of a cyclist hit by another vehicle, as in respect of a pedestrian hit by a cyclist. Often this involves their failing to keep a proper lookout, as recent case law illustrates.

In McGeer v McIntosh [2017] EWCA Civ 79, the claimant was injured when a heavy goods vehicle driven by the defendant turned left across the nearside lane in which she was cycling. Although the judge found the defendant had been negligent, the claimant was found to have contributed to the extent of 30% in attempting to overtake the defendant on the inside lane. An appeal against that finding was rejected by the Court of Appeal.

In Rickson v Bhakar [2017] EWHC 264 (QB) the claimant cyclist who suffered injuries in a collision with a van driven by the defendant crossing the carriageway was found 20 per cent contributorily liable for failing to maintain a proper looking during a four-second reaction period. The judge also said he could not discount the possibility that the cyclist may have been looking down and had swerved rather than braking.

Another case of negligent inattention was a decision of the High Court in Northern Ireland in McAllister v Campbell [2014] NIQB 24, which found that the claimant cyclist who sustained injuries in colliding with the defendant’s car, which had pulled across and stopped in front of him, was 25% contributorily negligent because he had glanced down to look at his heart rate monitor while cycling and failed to keep a proper lookout.

What all these cases demonstrate is that the cyclist, as the more vulnerable road user, must be conscious at all times of the need to pay proper attention to the risks from other road users, and not allow any distractions to impede their ability to stop or otherwise avoid a collision, even though the collision is the other party’s fault.

Criminal liability

Apart from civil claims for damages, an accident between a cyclist and a pedestrian can result in a criminal conviction, as the somewhat more extreme case of Charlie Alliston in 2017 demonstrated. In that case, the pedestrian died after being hit by a cyclist who had disabled his front brakes.

Alliston received an 18-month jail sentence after being found guilty of causing bodily harm by “wanton or furious driving” at a trial before a jury at the Old Bailey in London, though he was cleared of manslaughter. (See Guardian, Cyclist Charlie Alliston jailed for 18 months over death of pedestrian.) That was another case in which it appeared the pedestrian victim had not been paying proper attention, and simply stepped out in front of the defendant. Like Robert Hazeldean, Alliston did not slow down or try to stop, expecting the victim to get out of the way.

The offence of “wanton or furious driving” derives from section 35 of the Offences Against the Person Act 1861, which has been used before in cases of criminal injury or manslaughter by someone riding a bicycle. In R v Lambert [2008] EWCA Crim 2109 the defendant cyclist, mounting the pavement to overtake a bus on the inside, collided with an elderly pedestrian passenger waiting at a bus stop, causing fatal injuries. He pleaded guilty to an offence of ‘causing bodily harm by wilful misconduct’ under section 35 of the 1861 Act. Though aged just seventeen and a half at the time, he was subsequently sentenced to 12 months’ youth detention. Dismissing his appeal against sentence, Mitting LJ, giving the judgment of the Court of Appeal, explained at para 3:

‘If the vehicle ridden by him had been motorised he would have had no defence to a charge of causing death by dangerous driving, an offence which carries a maximum sentence of 14 years’ imprisonment. There is no statutory offence specific to the facts other than causing harm by wanton or furious driving, also contrary to section 35 and subject to the same maximum [as causing bodily harm by wilful misconduct]. If, as is widely believed, the risk of death or serious injury to pedestrians caused by dangerous riding of cycles on pavements has become a significant problem, Parliament may wish to consider legislating for an appropriate specific offence and maximum penalty.’

Parliament has not so legislated. Nevertheless, the offence is not one to be taken lightly, and unlike the remedies in civil law, no amount of insurance will provide a ‘get out of jail free’ card (though it may help pay for a defence lawyer).  The best advice in all cases is to take more care, and keep a proper lookout.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project. His book, Transparency in the Family Courts, co-authored with Lucy Reed and Julie Doughty, is published by Bloomsbury Professional.