Mr Jason Moffat v Zenith Insurance Plc [2018] SC EDIN 39

Jason Moffatt v Zenith Insurance Crash Locus

Background

On 24th September 2015, at about 5pm, the driver of a VW Passat was making his way home from work at Leith Street. It was daylight. The weather was fair and dry. He was seeking to avoid roadworks at the west end of Queen Street by making his way north across Edinburgh to reach Ferry Road.

He was unsure of his intended route and decided to head north down Dundas Street. He knew that at some stage he would require to make a left turn, but he did not know exactly where. As the driver reached the foot of Dundas Street, he decided to turn left. He thought that this was the route which would take him towards Ferry Road. In fact, he was mistaken and he was turning into the western section of Fettes Row, which is a cul-de-sac.

As the driver made the left turn, he collided with a cyclist who was also making his way north down Dundas Street and had passed the defender on the inside. The cyclist was thrown from his bicycle and sustained injury. He raised proceedings against the driver of the VW’s insurance company and the case was heard by Sheriff McGowan at the All-Scotland Sheriff Personal Injury Court in Edinburgh on the 26th June 2018.

The case

The Sheriff accepted the driver’s version of events that; prior to making the turn, he had looked in his rear view mirror. Then, at about 30 yards from the junction of Dundas Street and Fettes Row, he indicated to turn left and began to slow down. He then checked his rear and nearside wing mirrors and looked over his shoulder.

Curiously, the Sheriff found that the driver had done all this yet still failed to see the cyclist.

The cyclist’s evidence was that the driver had never signalled to turn left. This piece of evidence was rejected by the Sheriff who went on to explain that the cyclist, on balance, had not seen the signal because he had been concentrating on the road surface and approaching at what was, in the circumstances, an excessive speed (30mph).

However, the cyclist maintained that an inference could be drawn that the driver had not looked properly because he had proceeded with his turn despite the presence of the cyclist who was there to be seen. The cyclist did concede that in passing the car on the left, he had breached Highway Code, Rule 163. Accordingly, he was willing to accept that he was partly at fault.

The Sheriff was asked to take into account the causative potency of the car versus a bicycle and, in doing so, should find the cyclist 25% to blame for the accident.

Judgement

In his decision, the Sheriff wrote,

“It is clear that the proposition “there was a collision between a bicycle and a car, therefore there is a presumption that the driver of the car was to blame” is not the law. But in my view, neither is it the law that “the driver of a car did not see a cyclist before a collision occurred, therefore there is a presumption that the driver did not look properly (and was therefore negligent)”.

Because the Sheriff had accepted the drivers evidence that he had “checked his mirrors and looked over his shoulder”, a case that the driver did not look at all was not made out.

The Sheriff’s reasoning for this was,

“First, while the driver of a car must pay attention to the possibility of other road users behind him or to his nearside, the exercise of that duty cannot be to the exclusion of paying attention to what is happening (or may be about to happen) elsewhere.

Second, I cannot make a finding that the pursuer was in the defender’s rear view or wing mirror line of sight for any material period prior to the collision. Indeed, on balance, it appears to me on the evidence to be more likely that he “caught up” with the VW just before the collision occurred. There was no evidence at all about the pursuer’s lateral road position. The pursuer was not wearing fluorescent clothing and there was no evidence of his cycle showing lights.
I do not suggest that the pursuer was at fault in any of these matters. They are simply relevant to the question as to how apparent his presence should have been."

Analysis

Rule 160 of the Highway Code (“the Code”) provides that road users should, once moving: “…be aware of other road users, especially cycles and motorcycles who may be filtering through the traffic. These are more difficult to see than larger vehicles and their riders are particularly vulnerable.”
Rule 161 of the Code provides: “All mirrors should be used effectively throughout your journey. You should use your mirrors frequently so that you always know what is behind and to each side of you, use them in good time before you signal or change direction or speed, be aware that mirrors do not cover all areas and there will be blind spots. You will need to look round and check. Remember: Mirrors – Signal – Manoeuvre.”

Rule 170 of the Code provides: “Take extra care at junctions. You should watch out for cyclists as they are not always easy to see.”

Rule 182 (‘Turning left’) provides: “Use your mirrors and give a left-turn signal well before you turn left. Watch out for traffic coming up on your left before you make the turn, especially if driving a large vehicle. Cyclists, motorcyclists and other road users in particular may be hidden from your view.”

Rule 183 of the Code provides: “When turning keep as close to the left as is safe and practicable give way to any vehicles using a bus lane, cycle lane or tramway from either direction.”

Rule 204 of the Code provides: “The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders.”

Rule 211 provides: “It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, at roundabouts, overtaking you or filtering through traffic. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully.”

It seems abundantly clear the driver failed to adhere to the Highway Code rules and as the cyclist’s lawyer observed, an inference could be made that the driver simply did not look or did look and failed to see.

It is a well-accepted principle in law that when apportioning responsibility between two parties involved in a collision the respective causative potency of what they have done and their relative blameworthiness must be taken into consideration.

What does Causitive Potency mean?

Causitive potency

Where there is greater potential for a motorist to cause damage to a cyclist, this should be taken into account by the courts when deciding liability for road traffic accidents. In cases where a Judge is asked to apportion blame for a collision between a motorist and a cyclist, the application of causative potency should work in favour of cyclist. This is because the Courts recognise the vulnerability of cyclists on our roads and give weight to the causative potency of motor vehicles as being potentially dangerous weapons. This then impacts upon how they determine or apportion blame following road traffic collisions.

Assessment

The Sheriff ignored causative potency because he found the driver not to blame at all. It’s an astonishing decision and reference to florescent clothing and cycle lights (in broad daylight ) perhaps give us some flavour of the Sherrif’s views of cyclists, ignoring their vulnerability. It’s not a level playing field on our roads so reach for your florescent jacket when crossing the road to help drivers see you!

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