Paralysed cyclist set for £3m+ damages from mountain biking instructor after winning High Court case

bikebot wrote:

Yorkshire wallet wrote:

The swimming pool is a highly controlled environment,

Because it's supervised. Remove the instructors, there's precisely zero control.  The instructor is responsible for ensuring that learners know where the deep water is, whether they should use flotation aids and for monitoring them. Neglect those duties, and they will share a degree of  liability or possibly be found wholly responsible.

These are the absolute basics of duty of care. If you are running a business dealing with the public you have to follow basic rules to protect them, it's the law. Although it doesn't seem very fashionable to say so in a world of "health and safety gone mad" nonsense, it's an almost entirely sensible and beneficial principle that exists in some form in almost every developed country.

The only question I can see regarding this case is the degree of liability, but the details as reported don't look good.

Yes, once more I think road.cc users are guilty (!) of not really reading through why the decision was made and is sound in law. That the law might be different in a perfect/different world is another issue. In this case there doesn't sound to be much other than encouragment to try stuff out and then do it a bit quicker. No assessment, quite a bit of risk. The outcome is always chance but that doesn't figure in the equation.

And, of course, this guy needs to find around £800k of his own money in respect of his own future care.

bendertherobot wrote:

bikebot wrote:

Yorkshire wallet wrote:

The swimming pool is a highly controlled environment,

Because it's supervised. Remove the instructors, there's precisely zero control.  The instructor is responsible for ensuring that learners know where the deep water is, whether they should use flotation aids and for monitoring them. Neglect those duties, and they will share a degree of  liability or possibly be found wholly responsible.

These are the absolute basics of duty of care. If you are running a business dealing with the public you have to follow basic rules to protect them, it's the law. Although it doesn't seem very fashionable to say so in a world of "health and safety gone mad" nonsense, it's an almost entirely sensible and beneficial principle that exists in some form in almost every developed country.

The only question I can see regarding this case is the degree of liability, but the details as reported don't look good.

Yes, once more I think road.cc users are guilty (!) of not really reading through why the decision was made and is sound in law. That the law might be different in a perfect/different world is another issue.

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

Quote:

In this case there doesn't sound to be much other than encouragment to try stuff out and then do it a bit quicker. No assessment, quite a bit of risk. The outcome is always chance but that doesn't figure in the equation.

If you really believe that, why didn't the judge describe MacLean as an incompetent clown, rather than as an apparently competent instructor?  Not even an instruction to get his arse off the back? I find that difficult to credit. I also suspect that 'do it faster' actually is a crude translation of 'leave the front brake alone', standard advice, not always easy to follow.

Quote:

And, of course, this guy needs to find around £800k of his own money in respect of his own future care.

Which is a shame for him, but seems fairly irrelevant for the rest of us.

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

Quote:

Yes, but what's your point? Are you suggesting that because the law seems incapable of prosecuting reckless drivers, people like Mr Ahmed - who placed himself in the care of another - shouldn't have recompense if that duty of care is not fulfilled?

It is open to anyone who suffers loss to bring a claim for negligence provided they can demonstrate a duty of care. But that's why negligence isn't (without legislation) particularly useful if you've been hit by a car while on the road because drivers don't owe one another or any other road user a duty of care. I say "without legislation" because you could always pass a law that reverses this presumption (i.e., provides that drivers owe more vulnerable road users a duty of care) but the days of the courts making this kind of jurisprudential leap are long behind us so it is down to the legislature and the car lobby would kill any law to this effect stone dead.

This wouldn't be the greatest solution anyway because you can't recover in negligence if you are dead - so motorists would be incentivised to finish you off once they'd begun. You really want a law that imposes strict liability on motorists. But just because you don't have a law to this effect doesn't mean you should deny Ahmed his compensation.

Also, it's wrong to blame the court. This is a legislative failing that is very simple to fix. Courts make law but very rarely in a dramatic way so if you want major change then you need to petition your MP.

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

No there isn't.

You are clearly lucky enough not to know people who have been involved in criminal and civil court actions.

If someone is found guilty in a criminal court of causing injury  to someone and they have assets or insurance,  then the victim can sue either the person for their assets or the insurers for compensation for that injury in a civil court.  

So while the driver may be fined a £50 victim surcharge in a criminal court it doesn't stop the victim (or their family) suing the drivers insurer in a civil court. 

If there is not a criminal case and there is an insurer, like in this case,  you can still sue the person who injured you in a civil court.

If there is a criminal case and the person is found guilty  but there no insurer than you can ask the Criminal Injuries Compensation Authority to give you compensation.

On these occassions using lights as per the law , wearing reflective/light coloured/bright coloured clothing and in some cases wearing a cycle helmet helps as the insurer will try, and are in some cases are successful, in arguing that it is partially the victims fault so their compensation should be decreased.

Loads of these cases don't  actually go to court as the insurer just agrees to make a pay  out as it is cheaper for all concerned and there is legal precedence of the amount that should be paid out.

Bluebug wrote:

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

If someone is found guilty in a criminal court of causing injury  to someone and they have assets or insurance,  then the victim can sue either the person for their assets or the insurers for compensation for that injury in a civil court.  

While we're all handing out free advice .... Bluebug makes perhaps the most important point of all, there's no point suing someone who isn't worth anything. 

surly_by_name wrote:

Bluebug wrote:

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

If someone is found guilty in a criminal court of causing injury  to someone and they have assets or insurance,  then the victim can sue either the person for their assets or the insurers for compensation for that injury in a civil court.  

 

While we're all handing out free advice .... Bluebug makes perhaps the most important point of all, there's no point suing someone who isn't worth anything. 

Anyone self employed, who has a professional duty of care has indemnity insurance, or they're colossally stupid and have managed to ignore an awful lot of advice and warnings. It's probably a legal requirement, I know for personal trainers it's mandatory.

surly_by_name wrote:

Bluebug wrote:

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

If someone is found guilty in a criminal court of causing injury  to someone and they have assets or insurance,  then the victim can sue either the person for their assets or the insurers for compensation for that injury in a civil court.  

 

While we're all handing out free advice .... Bluebug makes perhaps the most important point of all, there's no point suing someone who isn't worth anything. 

Or, at least in part, http://www.bbc.co.uk/news/uk-wales-south-east-wales-37875194

bendertherobot wrote:

surly_by_name wrote:

Bluebug wrote:

oldstrath wrote:

Leaving aside the law briefly, can you at least agree that there is a mismatch between the consequences suffered by this instructor for, at worst, negligence and those suffered by drivers who kill as a result of deliberately breaking the law?

If someone is found guilty in a criminal court of causing injury  to someone and they have assets or insurance,  then the victim can sue either the person for their assets or the insurers for compensation for that injury in a civil court.  

 

While we're all handing out free advice .... Bluebug makes perhaps the most important point of all, there's no point suing someone who isn't worth anything. 

Or, at least in part, http://www.bbc.co.uk/news/uk-wales-south-east-wales-37875194

 

Worth reading my whole post not just the part that was quoted.

You can sue anyone in a civil court who has assets or insurance even if there was no criminal case, however you have a better chance of securing compensation if there was a criminal case and that person was found guilty.

Yorkshire wallet wrote:

For me the bottom line is if you want to remain free from the risk of injury, then stay away from activities that certainly carry a very real risk of injury.

On that basis, no one would ever learn to swim.

fluffy_mike wrote:

A lot of talk about being responsible for your own actions, but part of the process of being instructed is putting your trust in someone else. And being an instructor means taking responsibility for the safety of others, using your knowledge, skill and judgement to stop them getting hurt.

"Putting your trust" in someone else is still not the same as giving up thinking. Nor is it the business of an instructor to somehow remove all risk. Because that probably isn't achievable, and if it were the course probably would not be worth doing.

the nutcracker wrote:

Bender the robot I think the reason cyclists hate both criminal and civil courts in your example is because they both let the person with the huge majority of responsibility off the hook with a bit of legal chicanery. 'Oh I just didn't see him till he hit the windscreen, oh and then I was so scared that this had all happened so fast I just drove off ( and left him to die ffs!). It's pure bull*hit justice. 'Oh I had already completed this section of downhill once and was so s@it scared of it that I thought I better do it again only a little bit faster, then I totally f@cked it up and fell off. This is a 40 year old grown man we are talking about not a 8 year old ( oh daddy he told me to go fast so I did) . These rulings totally undermine the fabric of society. Now every time someone thinks of being an instructor they will probably not bother cos of bullshit cases like this will cause the insurance to be so astronomical. Or if they do run the course it will be so nanny state as to be pointless cos of one stupid t@at f@cked it up for everyone else.Last time I checked anything involving a mountain and a bike usually carries a relatively high degree of risk. Why can't he accept that it's not anyone else's fault but his own. I could actually even be brought round to thinking 80:20 responsibility him and the instructor but never the other way round ( interesting that he is a lawyer by trade, having several months to convalesce obviously got him thinking) . Meanwhile the  insurance industry and lawyers are laughing all the way to the bank

Which legal chicanery did the Court use here?

Jamminatrix wrote:

bendertherobot wrote:

Ok, so we know that road.cc commentators hate the criminal courts, cos of bad sentencing and all that, but this is the civil court giving a newbie cyclist a big payout. But hate for that as well. It's a quandary for sure.

Possibly because RoadCC users have a brain to establish self-will. You are ultimately responsible for your actions and how much to go outside your comfort zone.

No. If you're in an environment of supervised training, it's the instructor who is ultimately liable for safety.  Because by defintion the instructor is trained, and the pupil isn't.

Jamminatrix wrote:

bendertherobot wrote:

Ok, so we know that road.cc commentators hate the criminal courts, cos of bad sentencing and all that, but this is the civil court giving a newbie cyclist a big payout. But hate for that as well. It's a quandary for sure.

Possibly because RoadCC users have a brain to establish self-will. You are ultimately responsible for your actions and how much to go outside your comfort zone.

And yet, a Court, taking every established legal principle of duty of care, breach of duty and negligence, disagreed. Having heard all the evidence and come to a reasoned conclusion. 

The _Kaner wrote:

As a lawyer (?), did Mr. Ahmed not have the common sense to assess the part of the course where the accident occured and adapt to his (known) riding skill level?

Doesn't matter what the student believes, it's the instructor job to assess their ability.

The _Kaner wrote:

... did Mr. Ahmed not have the common sense to assess the part of the course where the accident occured and adapt to his (known) riding skill level?

Please define this laze cliche "common sense"  What does it mean?  There is no such thing as sense which is common to everyone, as our knowledge, skill and experiences change our perception of your meaningless phrase changes.  A pupil should reasonably expect their instructor to only put them in a situation they can handle, would you expect a driving instructor to put someone on their first lesson on the motorway during peak traffic flow?  Of course not.  Similarly, a novice off road pupil shouldnt expect his instructor to put him on something he cant reasonably be expected to handle.  Oh, I forgot, "common sense" would tell this complete novice that he was out of his depth.

The _Kaner wrote:

As a lawyer (?), did Mr. Ahmed not have the common sense to assess the part of the course where the accident occured and adapt to his (known) riding skill level?

Godammit Kaner, he's a lawyer, not a mountain bike instructor

The _Kaner wrote:

As a lawyer (?), did Mr. Ahmed not have the common sense to assess the part of the course where the accident occured and adapt to his (known) riding skill level?

Or perhaps, maybe that is the reason why he had the accident.

Being a lawyer he 'took a risk' and unfortunately exceeded his own self-perceived skills...when the outcome is as bad as this, there's always someone else to point the finger of blame at (usually/occasionally not always correct mind you...)!!!

I hope Mr Ahmed can adjust to his new life.

I hope the instructor, despite the settlement/amount being >£3m has insurance to cover such a mishap and that this does not create financial hardship...it's not as though he has a spare few million lying about (I know if covered by insurance then he won't directly pay that sum..)

That will be the next big thing, when a 'road' cyclist is injured/incapacitated/killed by a driver and they/their family try to claim from the motorist...oh wait...I'm, of course, being silly here...the driver will probably pay £50 victim surcharge and walk out the court with  250 hours community service...after all the cyclist is most likely at least partially, if not 100% to blame for getting in the way of the motorist...

So we like instructors and we don't like lawyers, even when they ride bikes. But we also hate motorists, especially when they injure/incapacitate/kill cyclists. Which I think means the pecking order goes: instructors; other people on bikes, except lawyers; [big gap]; lawyers; motorists.

Its stupid to suggest that the reason Ahmed was injured is because he was a lawyer. 

I'm trying to work out if you would prefer it if the tort of negligence wasn't a feature of English law ("there's always someone else to point the finger of blame at (usually/occasionally not always correct mind you...)"). In Ahmed's case the court concluded that there was someone who (at least as to 80%) was responsible for his injuries. Or put another way, he was perfectly entitled to "point the finger of blame" because the instructor was in fact to blame (at least as to 80%). You realise this is exactly the same body of law that protects you when the hospital confuses a syringe containing glue with a harmless dye with the result that your ten year old suffers catastrophic brain damage? Or when your father in law receives a kidney transplant from a donor with an aggressive form of cancer, caused by "human error" by a specialist nurse who had not completed the required training? Or when your wife is misdiagnosed with terminal liver cancer and is given an aggressive form of wholly unnecessary chemotherapy? Whatever you think of the merits of an individual case, I prefer living in a jurisdiction where I have some recourse if people who are supposed to be looking after me fail to do so.

bendertherobot wrote:

Ok, so we know that road.cc commentators hate the criminal courts, cos of bad sentencing and all that, but this is the civil court giving a newbie cyclist a big payout. But hate for that as well. It's a quandary for sure.

Many people have a poor understanding of the difference between civil and criminal cases, as demonstrated by the very next post making a comparison with a criminal fine.

Yes, as an instructor he will be insured. Even the personal liability cover on basic third party cycling insurance will cover you for a claim of a million or more. This is why.