Brushett v Hazeldean – The Perils of Cycling Without Insurance
Collisions involving cyclists and pedestrians have been in the news very recently, following a decision which determined that the pedestrian’s damages would be reduced by 50% as she was deemed equally responsible for the collision.
Cyclists are often the victims of unfair media reporting. In this instance, however, the bulk of the articles I have read have jumped to the defence of the cyclist and to condemn both the pedestrian and her legal team for both the pursuit of the claim and the level of costs that have been incurred. Reports suggest that the cyclist will have to pay out around £100,000 in costs and compensation.
The coverage of the judgment has, in my view, demonstrably unfair to the pedestrian and needs some rebalancing. The coverage has seemingly focused on 3 issues:
- that the pedestrian was not looking where she was going and caused the collision, the cyclist attempting to swerve to avoid her
- that the case has been hanging over the cyclist’s head for the past 4 years and caused inordinate levels of stress
- that the outcome is likely to lead to the cyclist’s bankruptcy.
As to the accident circumstances, those will have been weighed up by the sitting Judge. Whilst the news articles lift out quotes that offer praise for the cyclist, the reality is that a pedestrian was struck and suffered injury. Just as cyclists are vulnerable to collisions involving cars, pedestrians are vulnerable road users when bikes are flying through the streets. Cyclists have a duty of care to pedestrians and there is a need to anticipate risk and danger; when cycling through areas with pedestrians crossing the road, cycling speed ought to be adjusted. Whilst the cyclist was already in motion when the pedestrian began to cross the road, there can be no doubt that having weighed up the evidence, the Judge concluded that the cyclist had breached his duty of care to the pedestrian.
Nye Moloney of Hardwicke Chambers was instructed as Counsel for the Claimant and has produced a report on the facts of the case which is well worth a read.
The second and third points mentioned above relate to the conduct of the litigation itself. It is noteworthy that for all the concerns raised about the cyclist’s stress levels, no similar concern is made for the pedestrian. Having been struck by a cyclist and suffered injury, the pedestrian was forced to endure four years of litigation, including a fully contested liability trial, in order to achieve a successful outcome.
I understand via Mr Moloney’s twitter feed (@NyeMoloney) that the Claimant made two offers of settlement in the course of the litigation and that she achieved a better result than this at the eventual trial. The reality appears to be, therefore, that the cause of the length of the litigation and the increased costs was a direct result of the claim being contested and defended through to trial, whilst the pedestrian’s reasonable offers of settlement were rejected.
I have sympathy for the cyclist’s personal situation and the financial pressure the judgment may place upon him, though a crowdfunding page set up to cover the damages and legal costs he will have to pay is likely to result in him not having to cover a penny of this himself. However, the absence of insurance is the reason why the cyclist found himself in this situation. Whilst it is perfectly right to have some sympathy, consider the hypothetical pedestrian who is unable to recover any damages because the cyclist does not have the ability (or a media-driven Gofundme page) to pay the same.
The news articles have brought back memories of the first time I acted for a pedestrian in similar circumstances.
10 years ago, I was instructed by a pedestrian who had been struck by a cyclist. The circumstances in that case were clearer than those described above. My pedestrian had been walking on a pavement around a corner in Central London when a cyclist, who had mounted the footpath in order to avoid traffic lights at the upcoming junction, crashed into my client at speed, fracturing her nose and sending her crashing to the ground.
The cyclist did not have insurance and despite engaging with us initially, soon went into hiding. We were forced to track the cyclist down and having done so, the cyclist focused his energies on trying to convince us that he was penniless and would be unable to meet any court judgment, encouraging my client to simply give up. My client persisted and showed courage to continue. This proved to be the right decision, as 3 years after the accident, I was able to achieve a positive settlement for her.
In both cases, the injuries suffered by the pedestrians were not life changing. But what if they had been? Imagine if the force of collision had caused the pedestrian to fall to the floor, bang their head and suffer a life-changing brain injury. What may require a 7-figure settlement with provisions for lifelong care would be an impossibility. No crowdfunding page would come to the rescue in that instance, even with The Times and The Guardian giving the story centre-stage.
This piece is not intended to attack cyclists, but I do want to highlight the ongoing fragility of a system that does not impose a legal requirement on cyclists to have third-party indemnity insurance before taking to the roads. I accept the practical challenges of introducing such an obligation, but it is an issue that needs to be addressed.
Until the Government introduces such a change, if it ever does, we must rely on cyclists to be responsible enough to purchase insurance themselves. The risks to the injured pedestrian are too significant not to but if nothing else, last week’s case should make it clear to cyclists just how much they are also risking in not having insurance protection.
A quick online search shows that British Cycling offers insurance that covers liabilities of up to £15m for just £37 a year. It really is a no-brainer.
Andrew King is an experienced injury lawyer, acting for claimants in personal injury and medical negligence matters. Andrew is Head of Dispute Resolution at Lennons Solicitors and is accredited by the Association of Personal Injury Lawyers as a Senior Litigator.