Although my latest blog is aimed at commuters, a lot of the content should be of interest to all cyclists.
With the glorious weather and longer daylight hours, I’m seeing more and more people commuting on their bikes. There has also been an increase in the number of people getting in touch with me to find out about whether they can make a claim for injuries sustained while cycling.
I thought I would list the types of new cases I’m dealing with and set out the legal basis for each claim. Without further ado, here are the top five things to be aware of if you’re commuting at the moment:
The harsh winter weather has contributed to potholes appearing everywhere – I think they’re more noticeable on our roads this year than ever before.
Unfortunately, the pothole problem has only been compounded by many highway authorities having their budgets cut. This makes it difficult for them to maintain the roads (as they are required to do by section 41 of the Highways Act).
Claims for damages (for your injuries, damaged bike, loss of income etc) are likely to succeed if the highway authority cannot prove a ‘section 58 defence’; that it took reasonable care to make sure the highway was not dangerous for traffic (including pedestrians and cyclists).
The injuries I have recently come across at work include: a fractured pelvis, a fractured arm and hand, facial and dental injuries and a fractured collarbone and punctured lung. These are not insignificant injuries so the dangers posed by potholes should not be underestimated.
If a pothole causes you to have an accident, do take photos of the measurements and speak to a specialist solicitor about your options.
> You can find out more about recent changes as to how potholes are repaired here.
I have recently been instructed by a client who suffered a fractured femur when a car pulled out of a side road and collided with the side of her bicycle at a T-junction.
There was nothing my client could have done to avoid this accident. The claim is being investigated and a liability response is awaited from the relevant motor insurer.
What you might find most surprising about this accident is that it occurred in May in daylight hours. Often these accidents are associated with darker winter months.
The claim is proceeding on the basis that the driver’s negligence was the cause. Clearly the driver failed to keep a proper lookout and failed to observe my client’s right of way; these allegations are evidenced by the facts of the accident itself (and my client’s version is supported by independent witnesses).
> You can find out more about what your rights are when hit by a car here.
3 Car doors
A dilemma that we all face on a regular basis is whether we should cycle in close proximity to parked cars at the side of the road to allow other road users to overtake us. This is a dilemma because you potentially put yourself at risk of being knocked off your bike by a car door if it is opened by someone without looking.
These types of accidents can cause significant injuries. I am representing a client who suffered a very severe leg fracture (affecting his knee joint), after he was thrown off his bike when he was “car doored”.
Campaigners (quite rightly) want to see motorists receive training on the “Dutch reach” to avoid these types of completely unnecessary accidents. From a legal perspective, these claims are founded in negligence which requires injured cyclists to prove the following: the motorist owed (and breached) the duty of care owed to the cyclist, this breach of duty caused the loss, and the loss was foreseeable i.e. it was not too remote an occurrence from the act complained of.
4 Mechanical problems
This is a broad heading and includes bike mechanics or manufacturers making mistakes when they service or assemble bikes, parts and components failing due to age/wear and tear, and parts and components failing due to defective manufacture/assembly.
Some cases are more straightforward than others. The cut and dry cases tend to be where a bike has been sold as ‘ready to ride’ although the brakes were defective or where a new frame breaks causing the rider to fall off.
The harder cases are those involving older bikes or those accidents where a working part (such as a chain) breaks and causes an accident. If the bike hasn’t been properly looked after and maintained then it can be difficult to establish a fault or defect is the cause rather than normal wear and tear.
Depending on the facts of the case, they’re generally either founded in negligence, the Consumer Rights Act 2015 (replacing the Sale of Goods Act) and/or the Consumer Protection Act.
If you’re getting back into commuting this summer, the best advice I could give is to have your bike properly serviced to make sure everything is in good working order.
5 Accusations of ‘fundamental dishonesty’ when making a claim
Another development cyclists should be aware of is the willingness of motor insurers to allege that cyclists are fundamentally dishonest. In practice I haven’t come across allegations of fictitious cycling accidents but I have come across insurers alleging losses claimed following a cycling accident are being exaggerated for financial gain.
The benefit to the insurer of succeeding with such an allegation is that no damages would be payable to the cyclist (despite the motorist having been at fault for causing the accident), the cyclist would pay costs and the cyclist may have to pay damages too.
I think insurers are spending more time researching injured cyclists to see what they can find out about them online e.g. participation in time trial races, sportives, triathlons and so on. Results and ride histories are generally publicly available and are used by insurers to forensically analyse claims. This is a developing area of law and one to be aware of because I think it has the potential to cause problems for honest cyclists who bring a claim following an accident.
As a cyclist myself, I often commute without experiencing any issues whatsoever (mainly because I avoid the busiest times on our roads). However, as a solicitor I am well aware of the dangers and issues that we face on a daily basis. It is important to be aware of your rights, just in case you are unfortunate enough to be affected by any of the above.