McGEER v MACINTOSH: PAVING A SAFER WAY FOR CYCLISTS?
Case Background
This case involved a cyclist who undertook a stationary car at traffic lights and then cycled to the nearside of an HGV which was indicating to turn left. In earlier years, this would have been regarded as a very difficult case for a claimant.
In a detailed and careful judgment, the Judge, His Honour Judge Raynor QC, found as a fact that the Defendant should have seen the Claimant on her bicycle in his mirrors and had regard to her presence as he commenced this left hand turn. The Judge considered that the potentially misleading nature of the manoeuvre being carried out created a clear duty on the HGV driver to ensure that the cyclist was not going to proceed to his nearside. The HGV had been positioned straddling two lanes but as it moved forward it might have created the impression that it was in fact turning right rather than left.
In assessing contributory negligence at 30%, the Judge took into account the fact that the Claimant would not have seen the indication as she undertook the stationary vehicle. The apportionment also reflected the Claimant’s vulnerability as a cyclist confronting an HGV following a similar approach in the case of Sinclair v Joyner (2015) RTR29.
This decision comes against a background of increasing debate as to the responsibility as between cyclists and HGV drivers in particular in London with increasing numbers of cyclists but also much busier roads.
In 2013, HGVs were involved in 9 out of 14 incidents in London leading to cyclist fatalities. The Mayor and Transport for London are aiming to reduce the number of people killed or seriously injured on London’s roads by 40% by 2020. A Transport of London “Cycle Safety Action Plan” has been produced. This includes “Cross Rail Lorry Training” where numbers of lorry drivers working on a specific project have to undertake special cycle awareness training.
From 1 September 2015, London Safer Lorry Scheme requires all HGVs entering the capital to fit potentially lifesaving mirrors and safeguards which are not necessarily provided in older vehicles. Operators caught without these features when driving on London’s roads will face a fine of up to £1,000.
Safety trainers such as Bike Right provide courses for HGV drivers which include requiring such drivers as part of the training to cycle in busy urban areas.
Similarly, the Metropolitan Police now organise events called “Exchanging Places” which allow cyclists to sit in the driver’s seat of an HGV or bus to get a better understanding of what the driver can and cannot see, particularly in relation to cyclists on the nearside or directly in front of the vehicle. These issues are well demonstrated in a short film produced by the Metropolitan Police.
Debate continues as to whether cyclists are often the author of their own misfortune through aggressive or inappropriate cycling. In an article on the Spencer Solicitors website “The Global Problem of Cycling Safety: Whose Fault is it?” an HGV driver who wished to remain anonymous (perhaps unsurprisingly) said,
“For drivers, especially truck drivers, there are tests, training programmes and strict guidelines that we have to follow. Now they’re bringing in more, which is fine but what about cyclists? Cyclists don’t have to pass tests to be able to be ride on roads, they’re not made to wear protective gear like helmets or reflected clothing and so on. Even though it is all strongly advised, there are still so many that just don’t.”
“There are also cyclists who cycle when listening to music. I guess just one headphone is fine but I see some with big beats headphones over their ears, I admit I look at cyclists today and obviously think you’ll only learn if you get hit.”
There are undoubtedly cyclists who jump lights, who weave in and out of traffic and cycle in obviously dangerous positions. However in the present case, the Claimant could not have been considered to have cycled in a way that was knowingly inappropriate or careless for her safety. In practical terms, both the Claimant and the Defendant failed to be sufficiently aware of each other and their manoeuvres. In these circumstances, the law now appears to be clear that analogous with an accident involving a pedestrian and a vehicle the Court will apportion liability against the person who has control of the more dangerous vehicle. Whilst debate continues, this reflects the overall public perception of such a situation. Drivers of HGVs who consider that it is a large enough object to be seen are likely to face the majority of blame unless it can be shown that there was some reckless conduct on behalf of the cyclist.
Contributor Comments
See below for the judgment on McGeer v Macintosh.
