Cyclists: the importance of third party liability insurance cover

Brushett v Hazeldean [2019]

This case (which was heard in June 2019) in which the claimant pedestrian and defendant cyclist were held to be equally at fault following a collision, has attracted much media interest and comment, much of which has focussed on the finding of liability against the cyclist and the (potentially significant) costs bill that he now faces.

The decision has drawn further attention to the protection that the law affords to vulnerable road users (e.g. cyclists). However, walking is a transport mode and the claimant was a vulnerable road user who suffered a head injury as a result of the collision. Whilst the judge may not have referenced the Highway Code, Rule 66 states that cyclists “should be considerate of other road users”.

Background

It is understood that the claimant was walking her usual route home from the office to the station during rush hour when she was struck by a bicycle, ridden by the defendant, an experienced cyclist, as she crossed a road in Central London. It is also understood that the claimant sustained head injuries and has no recollection of the incident. The claimant did not give evidence on liability and relied on the evidence of one of the witnesses, another cyclist.

Below is a summary of some of the key evidence that is understood to have been before the judge at the trial:

  • The defendant had cycled through a green light approximately 25 metres from the point of collision.
  • The claimant crossed from the defendant’s right to his left as he approached.
  • The police attended and spoke with five witnesses including the defendant. Two witnesses said the claimant had stepped into the path of the defendant and placed the claimant at fault. None of these witnesses gave evidence in person at trial. None of the statements given contemporaneously to police at the scene mentioned that the claimant was using a phone.
  • The defendant told police that he saw people crossing at the junction and sounded an airhorn that caused people to part and leave a gap in the middle of the road. On his approach to a traffic island where most people had stopped, he saw the claimant who was in the middle of the road and having turned to look at him, stopped and stepped backwards into his path.
  • A further witness was a cyclist who the defendant had overtaken and estimated that the defendant was cycling at 20 mph. His evidence is understood to have been that, after sounding his horn, the defendant did not slow but cycled towards a large group of pedestrians who were still crossing the road and blamed the defendant for the accident. The witness had slowed because he felt it was not safe to proceed as people crossed the road and was of the view that the defendant had accelerated towards the crossing.
  • It is understood that the defendant gave evidence at trial that, after he sounded his horn and when people were still in the road, he accelerated up to 10–15 mph. The defendant said that the claimant looked up from her mobile phone, panicked and stepped backwards towards the central island. Despite braking and swerving, he could not avoid a collision
  • Police attending the scene attributed blame to both parties. Neither party was prosecuted.

Decision

Liability was apportioned on a 50/50 basis, taking into account the conduct of both parties.

The judge found that the defendant fell below the standard of a reasonably competent cyclist by proceeding whilst the claimant was established in the road and ruled that cyclists must be prepared for pedestrians to behave in unexpected ways.

It is understood that the judge found that the claimant was looking at her mobile phone although this evidence came only from the defendant at trial, and accepted the defendant’s evidence on the claimant’s actions once seeing him.

The claimant was awarded £8,232 reduced to £4,161 reflecting a reduction of 50% for contributory negligence. It has been reported that the claimant’s representatives are seeking almost £100,000 in costs, but the costs are to be assessed at a later hearing.

Comment

Human beings do behave in unpredictable ways. The fact that the defendant was aware of the claimant’s presence in the road and did not slow sufficiently or at all to be able to avoid a collision appears to have been his undoing. It seems that, in the view of the judge, the defendant did not proceed with sufficient caution.

This case does highlight an anomaly in the costs rules for personal injury claims. The incident was not caught by the Road Traffic Accident Personal Injury Protocol as Section 1.1 (16) defines a “road traffic accident” as arising out of the “use of a motor vehicle”. In addition, s.4.3(3) of the Pre Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims excludes claims brought against an individual in the case of public liability claims. Whilst the costs claimed appear wholly disproportionate, the claim would always have fallen outside of the fixed costs provisions.

Finally, the decision brings into sharp focus that the defendant did not have third party liability insurance. Given the potential costs liability, it is likely that, had there been insurance provision, some agreement on liability would have been reached rather than both parties proceeding to trial.

There is no legal requirement for a cyclist to have insurance to ride on the road (there is also no proficiency or minimum eyesight requirement). To police and monitor such a requirement would be extremely difficult. However, this case highlights the importance for cyclists to have insurance cover, and for cyclists to check their household insurance to see whether it includes appropriate cover. Alternatively, and by way of example, for a relatively small annual membership fee with organisations such as British Cycling and Cycling UK, the provision of third party liability cover is also available.