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Heart rate monitor (CC licensed image by frankshapiro:Flickr)Cyclist's crash damages reduced because of 'contributory negligence': looking down at heart rate monitor
Keep your eyes on the road. That’s the message from the High Court in Northern Ireland, which has reduced the damages awarded to a cyclist involved in a collision with a car because the judge found that looking at his heart rate monitor amounted to contributory negligence.
The court awarded Conor McAllister over £50,000 in damages after finding that driver John Campbell was responsible for the injuries Mr McAllister sustained when he hit Mr Campbell’s car in November 2009.
But the damages would have been £70,000 if Mr McAllister had been looking where he was going.
According to a report in the News Letter, the car and rider were on the dual carriageway outside Ballymena when the incident happened. Mr McAllister was heading out toward Broughshane at the beginning of a ride.
Mr Campbell said he had pulled over to give his sister-in-law a lift. He said he had been stationary for 30 seconds when Mr McAllister rode straight into the back of his car.
But Mr Justice Stephens found more credible Mr McAllister’s claim that Mr Campbell had just pulled in in front of him.
He held that the length of scrape marks on the car was inconsistent with it having been stopped and the handbrake applied.
There were inconsistencies in Mr Campbell’s story, the judge said, but he did not believe the driver had acted with malicious intent.
“Without any ulterior motive he has rationalised after the event how it occurred,” Mr Justice Stephens said.
“The defendant was flustered by seeing his sister-in-law and there was a period of indecision.”
In his confusion the driver had either forgotten about the rider he had passed, or else disregarded his presence.
“This failure was negligent,” the judge said.
But Mr McAllister had contributed to the crash by looking down at his heart rate monitor, the judge found, reducing the damages by 25 percent from £70,000 to £52,500.
Mr Justice Stephens said: “He was looking down at a heart rate monitor. He should have been looking at where he was going.
“If he had been he could have braked or taken evasive action.”
John has been writing about bikes and cycling for over 30 years since discovering that people were mug enough to pay him for it rather than expecting him to do an honest day's work.
He was heavily involved in the mountain bike boom of the late 1980s as a racer, team manager and race promoter, and that led to writing for Mountain Biking UK magazine shortly after its inception. He got the gig by phoning up the editor and telling him the magazine was rubbish and he could do better. Rather than telling him to get lost, MBUK editor Tym Manley called John’s bluff and the rest is history.
Since then he has worked on MTB Pro magazine and was editor of Maximum Mountain Bike and Australian Mountain Bike magazines, before switching to the web in 2000 to work for CyclingNews.com. Along with road.cc founder Tony Farrelly, John was on the launch team for BikeRadar.com and subsequently became editor in chief of Future Publishing’s group of cycling magazines and websites, including Cycling Plus, MBUK, What Mountain Bike and Procycling.
John has also written for Cyclist magazine, edited the BikeMagic website and was founding editor of TotalWomensCycling.com before handing over to someone far more representative of the site's main audience.
He joined road.cc in 2013. He lives in Cambridge where the lack of hills is more than made up for by the headwinds.
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46 comments
does a shoulder check also count as contributory negligence too!?
So he glanced at his heart rate monitor. Ive set upper and lower levels on mine so it keeps me in the threshold. Now how about the driver was he not glancing at a person on the pavement if he had been paying attention to the road and it's surroundings he could of probably prevented this from happening hummm !!!! So the judge took the award from the cyclist how about putting it back as the driver was looking at his sis in law?
The only really scary bit about dual carriageways are the shallow left hand turnoffs, where I get people diving left across my front wheel. Many swearwords. Some new ones. Get more high speed close passes on suburban and urban roads though.
^this
But I'd add "rural" to the list.
I regularly ride on dual carriageways, although the traffic speed MAY be greater, there tend not to be T-junctions (unsafe in low-light conditions) & if you are not on them at the busiest times, plenty of room for other traffic to give you more than the 0.5 metres of room that many drivers allow you on a single carriageway road.
You should still be looking at what you are doing.
As the board says at the HQ of any Time Trial "Head down racing (riding) is Dangerous. Heads up & have a good ride".
Went to court to watch the CPS try and get a Care-less driving charge against a driver who took out my GF with a right hook as she filtered down the outside. He blantidly lied in court but the witness's didn't want to attend so he got dismissed with insufficient evidence even though he admitted guilt at the scene to the officer.
I wonder if cyclists are more inclined to be truthful?
Still trying with his insurance company through lawyers.
It could have been worse, at least the judge didn't mention helmet and hi-vis
More bullshit.
On the one hand, in theory, I wouldn't argue with the notion that cyclists need to take suitable care themselves and keep their eyes on the road ahead as much as is practical. Not least because there's a moral obligation to be watching out for pedestrians stepping into their path.
The trouble is, this is always set against the awareness of the lenient treatment drivers seem to get in similar circumstances.
Its very hard to work out what is 'fair' in a screwed-up context. Which is another reason, as far as I'm concerned, why the Dutch approach is the only answer - there's always likely to be a double-standard and hence suspicion in these situations, so the best thing is to keep the opportunity for such collisions to a minimum.
Also - as to whether the driver told the truth or not, and whether he should be prosecuted for that....this was a civil court, right? So presumably its only on the "balance-of-probabilities" that its implied he told porkies rather than something that is "beyond reasonable doubt"?
It depends on how long he was looking down and how quickly the driver pulled in. If the incident evolved over a short amount of time, which it likely did, then reducing the compensation is outrageous as it's very unlikely the cyclist could have done much to react regardless of where he was looking.
There are many reasons to not be looking forward 100% of time as, you should be routinely looking
- over your shoulder
- at side roads for drivers pulling out
- and pot holes
Just remember who the victim was in the situation.
Contributory negligence is a joke...
Always pays to have membership of some sort of cycling organisation (BC, Tri England, CTC) as you'll get legal support if you believe you have a case against a driver.
PMR, sorry you felt you could not take legal action.
I'd even have been tempted to represent myself.
What evidence for looking at hrm? Driver's words? Witnesses?
Probably riders own admission in their evidence. Possibly just an off-the-cuff comment that has been used against them.
Unlikely the driver's evidence, it's doubtful he even saw the cyclist and any other witness would only see a small change in head position which could be the result of anything, including swallowing a fly and choking.
almost certainly the cyclist's own admission and probably in answer to the very simple question as to why he hit a stationary vehicle.
Something like this.
Officer - So, did you notice the vehicle go past you?
Cyclist - yes.
Officer - the driver says he passed you a way back. Is that right?
Cyclist - yes
Officer - So when you saw the stationary vehicle why didn't you stop or go around it?
Cyclist - I was looking at my HRM?
I
I'm guessing that, as the majority of adults who ride bikes also drive, most of those reading this will be well aware that when driving you keep an eye on your speed by taking occasional glances at the speedo (and by knowing when you spped up and slow down) and that you ensure that you know what is happening all around you by using mirrors and looking around.
When cycling we don't need to glance at the speedo but still need to know what is happening all around us and we look around to do so.
If a driver were busy looking for a station on his radio, adjusting a satnav or indeed checking his heart rate then that would quite rightly be a contributory factor were a collision to occur at that time (whover was mainly at fault). The same of course applies to cyclists.
With regards the driver telling lies, or misrepresenting the facts, or misinterpreting, or rationalising what actually happened I'm afraid that is pretty normal behaviour in any court. You don't find someone who denied an assault in court being found guilty and then also being charged with perjury do you? In this instance the judge seems to have done a pretty good job.
For once the judicial system tries to treat a cyclist and a motorist in the same way and people start to complain - makes me wonder....
So cyclists should always see cars, but it's fine for delivery drivers, minibus drivers, and charitable ladies not to notice bikes? Jeez, where are the vigilantes?
I don't suppose anybody can find out a bit more about the process through the courts for this incident?
The accident happened in 2009 and the cyclist then sued the driver, it appears to me that the courts awarded him 70k for damages and now for some reason it has ended up back in court to get the damages reduced.
Has the driver appealed in some way or something? Or is this standard procedure?
The £70k is the actual award for damages and the way that is calculated is pretty standard and to do with loss and damages. Quite simply if your loss is a bike worth £5k but you break an arm and have 5 weeks off work and earn £1000 a week then that's 10k ie calculations like that but far more complex and with all sorts of whistles and bells. That's the damages judgement. Most times both solicitors know exactly what the judgement will be.
BTW claims companies just load up the costs for all kinds of stuff and just keep adding their own costs as well and their costs become part of your costs that you claim. ie their solicitor charging £350 ph just to keep making the same old calls over and over.
I digress. In this case the loss and damages and all expenses settled out at £70k.. The claimant was awarded this by the court (ie the court agreed that the real overall loss was £70k) but they deducted 25% because of his own contributory negligence.
It's a pretty standard judgement.
Sorry officer I didn't know I was speeding but a judge said I must always look where I am going.....,
So would the same be said if a motorist glanced at the rev counter?
Yes. Yes it would, by both us and the courts.
This is precisely the sort of complaint about cyclists that is legitimate - expecting to be treated like victims at every point. You have a duty to look where you're going and deeming a failure to perform that duty contributory negligence is entirely fair.
What about if the cyclist was checking over his shoulder to pull out of a car that had abruptly stopped in front of him, does that constitute 'not looking where he is going' or more importantly contributory negligence?
How about if he was a car driver looking at his speedometer, does that constitute contributory negligence?
[[[[[ Call me old-school, but I don't festoon me 'bars with electronic heart-rate info. Eyeballs out? On the rivet? Thumping chest? Lactic legs? I get the message! Well, I'm not racing....but when driving, we do have to glance at the speedo once in a while. Not guilty, squire.
P.R.
Out of interest, what level of personal injury did the rider sustain from this incident to warrant the rather large payout?
A similar incident happened to me yesterday on my morning commute through London. A driver pulled into the cycle/bus lane which I was occupying without indicating or checking the mirrors to see if I was there and took me out. My front wheel and fork now need replacing and I've sustained some soft tissue injury to my wrist and shoulder (backed up by a letter from a doctor).
I've reported the incident to the police on 101, but have yet to fill out the more comprehensive Road Traffic collision form.
You should've called the police on the spot - in theory if there's a road traffic accident and someone has been hunt they are obliged to attend the scene.
Well i guess in the post crash daze i didn't think to do this. Although i went down pretty hard, it wasn't a serious incident where i was trapped under a car or had broken bones sticking out of me.
When the adrenaline kicks in, its quite hard to know what your supposed to do, especially when it hasn't happened before.
Don't worry, I did exactly the same when I got knocked off and only found out that fact afterwards. Like you I was bruised but not broken, the driver had stopped and was forthcoming with details so figured I didn't need to get anyone else involved.
Took 18 months but I did get a decent payout for it.
Correct, ALWAYS call the police when you've been hurt or your bike is damaged. When attending an RTA, the Police are required to breathalise those drivers/riders involved...
Also, getting the police involved means it will be logged as an incident in the database and will show up on the online injury maps if any injury occured:
http://map.itoworld.com/
Ok, again good advice but a little late now. Does this now mean I'm too late to make a claim on the driver? I can still report this formally to the police right? You lot got me worried now...
Ok, again good advice but a little late now. Does this now mean I'm too late to make a claim on the driver? I can still report this formally to the police right? You lot got me worried now...
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