Car accidents and contributory negligence
The cases suggest that the courts perhaps aren’t being as generous to cyclists as they are to injured pedestrians – especially when it comes to contributory negligence.
In Malasi v Attmed a cyclist jumped a red light, rode into the junction without looking, and was seriously injured when he was hit by a taxi. The taxi driver saw the cyclist and braked, but couldn’t avoid the collision. The driver had been travelling at between 41 and 50 miles per hour, on a street where the speed limit was 30mph.
The cyclist sued the taxi driver for compensation for his injuries. Judge Seymour QC found the taxi driver liable, but reduced the cyclist’s damages by 80% for contributory negligence.
The judgment was delivered on 5 December 2011, but only reported in summary form (at present you can read the summary here). I’ve been waiting for the full judgment to become available, but there’s still no sign of that happening. So we still don’t have a complete record of what the judge said.
It has been debated elsewhere whether the outcome was fair. But the case also highlights one way in which the law might be giving cyclists a rough ride.
Where a cyclist suffers injury as a result of a motorist’s negligence, the cyclist can sue for damages. One of the defences which the driver can raise (as a way of trying to avoid paying full damages) is contributory negligence – arguing that the injury was caused or contributed to by the cyclist’s negligence, so the driver shouldn’t have to pay for the injury in full.
For the cyclist’s damages to be reduced for contributory negligence in this way, two things are necessary:
- the injured cyclist must have been at fault in some respect; and
- the cyclist’s fault must have contributed to their injury (so that if they hadn’t been at fault, the injury would have been avoided or would have been less severe).
I’ve written before about whether failing to wear a helmet can constitute fault for the purposes of the first requirement. But that’s not the only kind of fault which a cyclist might commit.
In the Malasi case, the judge appears to have held that the cyclist’s failure to stop for the red light constituted fault for these purposes. So did his failure to keep a look out – i.e. to look across the junction, see the oncoming taxi, and brake to avoid it.
Similarly, the judge held that both of those ‘faults’ caused or contributed to the injury. Had the cyclist not jumped the red light, or had he kept a look out, noticed the taxi and braked to avoid it, the collision would not have happened.
So the basic requirements for the contributory negligence defence were met. But what should the consequences be?
How much of a reduction?
When the two requirements for the contributory negligence defence are satisfied, the court’s task is to decide how much of a reduction to make to the injured cyclist’s damages. Its task is to do what is fair – or, in other words, to reduce the cyclist’s damages “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the [injury]“. (Law Reform (Contributory Negligence) Act 1945, section 1(1))
In deciding what is a fair reduction, the courts take into account two things:
- “causative potency“ – the extent to which the cyclist’s fault (on the one hand) and the driver’s fault (on the other) caused the injury; and
- “relative blameworthiness“ – the extent to which the cyclist’s conduct (on the one hand) and the driver’s conduct (on the other) attracts blame. (See for example Stapley v Gypsum  AC 663, 682; Baker v Willoughby  AC 467, 490; Eagle v Chambers  EWCA Civ 1107, §§10, 14)
The judge in Malasi v Attmed held that the cyclist’s fault had caused his injuries in the sense that, if he had not jumped the red light, or if he had paid attention and braked, the collision would not have happened. But, at the same time, the taxi driver’s negligence (in driving “gloriously in excess of the speed limit”) had also caused the accident – had he not been driving too fast, the collision would not have happened.
It seems from the summary that the judge then took into account the fact that there were two ‘faults’ on the cyclist’s side (jumping the red light and failing to keep a look out) but only one ‘fault’ on the driver’s side, in the form of speeding (because the driver had kept a lookout, seen the cyclist and braked). This seems to have been the basis for the judge’s decision to place more responsibility with the cyclist – and thus to apply a reduction of 80%.
So far the analysis is perhaps defensible. But it looks from the summary like the judge’s analysis was all based on causative potency, without taking into account relative blameworthiness. This may be unfair to the cyclist.
In Lunt v Khelifa, Latham LJ said that the courts have “consistently imposed on the drivers of cars a high burden to reflect the fact that a car is potentially a dangerous weapon“. (Lunt v Khelifa  EWCA Civ 801, §20)
Whether the courts have consistently behaved in this way is perhaps debatable. But, as Hale LJ in Eagle v Chambers explained:
A car can do so much more damage to a person than a person can usually do to a car. […] The potential ‘destructive disparity’ between the parties can readily be taken into account as an aspect of blameworthiness (Eagle v Chambers, above, §15)
In other words, when determining the relative blameworthiness (for the purposes of contributory negligence) of a motorist and a person whom the motorist has injured, the courts are prepared to take into account the fact that the motorist was driving a potentially dangerous weapon – so any fault on the motorist’s part is more blameworthy because it poses a greater risk to others.
So, for example, in Toropdar v D a motorist who was driving negligently fast (although under the speed limit) collided with and injured a ten-year-old boy who ran into the road from between parked cars. Giving judgment, Clarke J said that a car is “in one sense a lethal weapon” so that “the standard of care required of a driver to prevent harm is likely to be greater than that of a pedestrian“, and held that the motorist was two-thirds liable for the boy’s injuries. (Toropdar v D  EWHC 2997, §42)
As I’ve said, there is no indication from the summary that the court took into account relative blameworthiness in this way in Malasi v Attmed.
Similarly relative blameworthiness wasn’t discussed in this way in Phethean-Hubble v Coles. In that case the judge reduced a cyclist’s damages by one-third where he was injured after ‘bunny-hopping’ from the pavement onto the road, into the path of a speeding car. Last month the Court of Appeal partially allowed the motorist’s appeal, holding that the reduction in the cyclist’s damages ought to have been greater.
In Phethean, the judge appeared to say that the causative potency of the cyclist’s and motorist’s fault was roughly equal (i.e. 50%), but that the cyclist was relatively less to blame because of his young age (hence the one-third reduction overall). The Court of Appeal held that his young age was irrelevant, so the reduction ought to have been 50% (reflecting causative potency). Neither court made any mention of the fact that the motorist’s car was a potentially dangerous weapon, which might affect the degree of his blameworthiness. (Phethean-Hubble v Coles  EWHC 363 at §§132, 142 (Wilcox J);  EWCA Civ 349, §86 (Black LJ))
Are cyclists getting a rough ride?
So, based on the Malasi and Phethean cases, it looks like the courts are not taking into account the destructive disparity between cars and bicycles, and the way in which this affects the relative blameworthiness of motorist and cyclists, when determining how much of a reduction to apply to a cyclist’s damages for contributory negligence.
Why not? It may be that the court didn’t mention destructive disparity in Malasi and Phethean for the simple reason that the cyclists in those cases didn’t argue the point.
But that may in turn be because some of the language used in previous decisions suggests that the courts only recognise the destructive disparity between cars and pedestrians – not between cars and bicycles.
For example, Clarke J in Toropdar (in the quote above) compared the standards of care required of a motorist and a pedestrian. The judge in Smith v Nottinghamshire Police talked about the motorist often bearing “a greater share of the blame than the pedestrian” (although the Court of Appeal didn’t use the same language). Similarly, Hale LJ’s point in Eagle v Chambers that a car can do “more damage to a person than a person can usually do to a car” might be read as, implicitly, limited to claims brought by pedestrians against motorists. (Toropdar v D, above; Smith v Nottinghamshire Police  EWCA Civ 161, §35; Eagle v Chambers, above)
This can’t be right. Cyclists are subject to much the same risks as pedestrians, and the destructive disparity with cars is just as great for cyclists as it is for pedestrians.
So the argument about respective blameworthiness needs to be made in cyclist cases. If the courts pay it more than lip service, it ought to mean that smaller reductions are made for contributory negligence – in other words, that injured cyclists recover more compensation.
It might have led the judge in Malasi v Attmed to make a reduction of less than 80% to the cyclist’s damages – meaning the cyclist would receive more compensation. Similarly, it might have persuaded the Court of Appeal in Phethean to keep in place the judge’s one-third reduction in the cyclist’s damages, rather than making a reduction of 50%.
Using destructive disparity in this way might also, though, inspire motorcyclists to make the same argument against car drivers, since cars have greater destructive potential than motorbikes. Similarly car drivers might argue the same point against drivers of HGVs. In other words, this may be a first step in recognising some kind of hierarchy of duty on users of the roads.
Photo by Nanagyei from here: http://www.flickr.com/photos/nanagyei/4551711468/
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