Wednesday, 24 June 2015

Another case on Contributory Negligence Sinclair v Joyner

In Sinclair v Joyner [2015] EWHC 1800 Mrs Justice Cox found for the claimant cyclist in her claim for damages against the driver of a '4x4' vehicle though with a reduction of 25% to reflect the cyclist's contributory negligence.

On Sunday 3rd July 2011 Mrs Sinclair was cycling along Broadwater Forest Lane, a single carriageway lane in Kent.  Coming in the opposite direction was a Volvo XC 90 motor car driven by Mrs Joyner.  The two vehicles made contact as a consequence of which Mrs Sinclair fell sustaining a serious head injury.

Liability was disputed (indeed it was even faintly disputed with unsatisfactory expert evidence) that a collision had even occurred.

The Judge had no difficulty finding that the Defendant driver was liable and should have stopped to allow the cyclist to pass in safety.  In words that support the view which I have frequently expressed that in England and Wales we have what approximates to a de facto presumption of liability when a motorised vehicle collides with a vulnerable road user the Judge said:

  1. In the section dealing with "Road users requiring extra care" the Highway Code (Revised 2007 edition) draws attention, at paragraph 204, to cyclists as among those who are to be regarded as "the most vulnerable road users." Mr Martin places particular reliance upon the advice given to motorists at paragraph 212, namely "When passing motorcyclists and cyclists, give them plenty of room." While there then follows a bracketed reference to earlier rules dealing with overtaking, as Mr Freeman observes, the advice in this paragraph is, in my judgment, not confined to cases of overtaking, set as it is in the section of the Code addressing in general terms the vulnerability of these categories of road users, and the need for extra care.

  2. This advice is particularly pertinent in this case. The Defendant's carriageway was just 2.5 metres wide and the width of the Volvo was 2.1 metres. Even if she were right over to her nearside, and I accept that she was very close to it, that leaves at best 0.4 of a metre between the car and the Claimant who was, on the evidence, riding her bicycle still on her own side of the road but only just. She was very close to the centre as the Volvo approached and then passed her. The Claimant cyclist's close proximity to the centre of the road was noted by the Defendant as soon as she saw her, and in my view, for the reasonable prudent driver in those circumstances, alarm bells would have sounded instantly.

  3. Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant's assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely.

Contributory Negligence

It was accepted on the Claimant's behalf that she should bear some responsibility for her injuries on the basis that 'she should not have been riding her bicycle in a central position in the road'.  Mrs Sinclair's injuries did not leave her able to recall or explain her riding leading up to the accident.  The matter was dealt with briefly and by concession (with the Judge accepting the Claimant's suggested 25% deduction).  It should not, in my view, be taken as any indication that cyclists should not ride in a central position on the road.  Indeed on the contrary they often should, though perhaps not at the point where a wide vehicle is actually passing on a country lane.

Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet.  the Judge said this:

  1. The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case.
As can be seen the Defendant had no confidence in the point although it was pleaded on her behalf.  Of interest is the Judge's comment that Mrs Sinclair 'was an adult enjoying a bicycle ride in the countryside on a sunny day'.  Since this is plainly irrelevant to causation, this is only worth mentioning in the context of fault strongly implying that Mrs Justice Cox is not convinced that a cyclist who chooses not to wear a helmet is at fault.

Regular readers of my blog will know that Mr Martin QC was not quite right in his observation that no Court has yet decided that failing to wear a helmet amounts to contributory negligence.  However Reynolds v Strutt & Parker was a wholly exceptional case for reasons I describe here

Overall an encouraging case though there are throw away comments regarding the oddity of riding central, standing on the pedals and 'proper clothing' for a cyclist that do leave a queasy suspicion that the sum of the knowledge in the Courtroom about cycling was less than it might have been and that Mrs Sinclair was in all probability a far more competent cyclist than she was given credit for.

The full Judgment can be read at