There has been a lot written about the case between pedestrian Gemma Brushett and cyclist Robert Hazeldean in the newspapers and cycling press. Rightly so, it’s an interesting one. Unsurprisingly, they have been all over it because it’s a rare example of a cyclist colliding with and injuring a pedestrian. Of course, it’s worth noting the cyclist was also injured, so perhaps the infrequency of such events is what makes it interesting, or perhaps journalists can’t pass up the opportunity to demonise cyclists? Just look at how Charlie Alliston’s tragic collision with Kim Briggs was reported.
However, in all the furore around the case, one aspect seems to have been missed: this case actually reinforces a key principle in law, one that is actually good for cyclists on the whole. I’ll get to this shortly, but first I’ll give you the details of the case. However, if you know the facts feel free to click here to skip to the contentious bit…
On 20 July 2015, pedestrian Gemma Brushett was crossing a road in London on her way home. At the same time, regular cyclist Robert Hazeldean was cycling through the city, on his way home too.
Mr Hazeldean cycled through a green light at a busy junction, seemingly around the time the lights changed so he might have been the first one through the lights. He could see the road ahead was not clear, as about 25 metres ahead of him pedestrians, including Ms Brushett, were still crossing the road. He also knew that the point where the pedestrians were crossing was not controlled by a red/green man.
Mr Hazeldean sounded an air horn on his bike, and in his statement to the police he said that this cleared a path towards the middle of the road, near the yellow bollards identifying a small traffic island.
At this point, though, Mr Hazeldean was accelerating (it was uphill on the other side of the junction) and Ms Brushett stuttered and retreated towards the central island rather than continuing forwards towards the other side of the road, as Mr Hazeldean thought she was going to do. He shouted a warning, braked and swerved towards the central island, and there was a collision between the two of them where they were both knocked out.
Despite both of them being injured, only Ms Brushett brought a claim for compensation for her injuries and Mr Hazeldean decided not to. He did not take legal advice until 2018.
The parties were unable to agree settlement of the claim prior to a trial before District Judge Mauger earlier this summer. Ms Brushett didn’t give oral evidence at trial; she was knocked unconscious at the scene and couldn’t remember the accident itself.
The judge found that Ms Brushett was established in the road and that Mr Hazeldean had cycled through a green light about 25 metres before the point at which Ms Brushett was crossing the road.
The judge rightly stated that Mr Hazeldean owed a duty to other road users to cycle with reasonable care and skill. The judge found that Mr Hazeldean could not safely cycle through the junction without giving way to those pedestrians still in the road e.g. Ms Brushett – this is an important part of the argument; the case would have been decided differently if Ms Brushett had been struck having taken a single pace off the pavement when she was struck rather than being established in the road.
At this point I think the temptation is to get frustrated for a fellow cyclist and say “the cyclist did nothing wrong, he cycled through a green light and encountered pedestrians who should have been waiting until it was safe to cross the road”. However, things aren’t that black and white.
It’s reasonable to expect cyclists to respond to what’s in front of them, even if what’s beyond a green light isn’t what they expect to encounter. The same applies to motorists who should also drive appropriately depending on what’s in front of them, some examples of cases where that responsibility has been considered in the context of collisions with cyclists are in a previous blog here.
The judge found that Mr Hazeldean’s conduct fell below the standard reasonably to be expected of him in these circumstances. In plain English: he should have slowed and waited for the pedestrians to clear the road. Wouldn’t we all do that? Is that really an unreasonable expectation?
The judge also found that Ms Brushett’s conduct (it was a finding of fact by the judge that she had been looking at her phone) clearly contributed to the accident.
Overall, at the end of day one of the trial, the judge concluded both of them were equally responsible. Liability was therefore apportioned 50:50. During day two, the following week, the compensation payable to Ms Brushett was assessed further for her concussion, dental injuries and facial scarring.
Two words: causative potency.
This term describes the potential for road users to cause damage to each other. The party with the greater potential to do damage to a more vulnerable road user often bears the greater burden and this is something taken into account by judges on a regular basis when a cyclist is injured by a motorist. Obviously, in that scenario, the cyclist is the vulnerable party but in this case it was the cyclist who had the potential to do greater harm to the pedestrian.
In this case, the judge said something along the lines of “A cyclist must be prepared for pedestrians to act in unexpected ways”. This is consistent with the language I have heard judges use when assessing civil compensation claims by cyclists against motorists. Let’s not forget that pedestrians are our most vulnerable road users.
More often than not, causative potency favours cyclists in civil claims for compensation following road traffic collisions and impacts upon how judges apportion responsibility for collisions. Clearly some weight would have attached to the potential for Mr Hazeldean to cause greater damage to Ms Brushett here, who was the more vulnerable road user in that situation.
To ensure fair outcomes, it’s important for the courts to continue applying the principle of causative potency in this way when deciding cases for compensation brought by cyclists against motorists. Where cases are brought by pedestrians injured by cyclists, causative potency works against cyclists. It’s also worth noting that these cases are few and far between, so much so that I don’t think we should be concerned by this decision.
Causative potency is a key principle which supports cyclists in claims against negligent motorists. That’s why I think we should understand this case and see that the approach of the judge is the sort of approach that is more frequently applied for the benefit of cyclists to reflect their vulnerability compared to the occupants of motor vehicles. In my view, arguing against its application in this case is inconsistent with the stance we should be taking.
If you read this and feel worried about being made bankrupt following a collision with a pedestrian, then my advice would be that you should take out an appropriate insurance policy; something Mr Hazeldean did not do. That’s not a criticism of him, he may have considered himself so unlikely to cause damage or injury to anyone else that he didn’t feel there was a risk of not being insured. Others may take a different view about that risk.
Clearly, a great number of cyclists have seen this story in the papers and sought to obtain their own insurance. The websites for Cycling UK and British Cycling reported an overwhelming take up of membership requests after this case was reported. One benefit of such a membership is public liability insurance. Had Mr Hazeldean been insured, his insurer would have picked up the tab to pay the costs and compensation awarded to Ms Brushett.
It’s worth considering how the law works around costs though. As a more general point, legal costs for personal injury claims will only be recovered (paid) if they are proportionate to the case that has been worked on, something which is assessed by a judge if costs are not agreed by the parties. Therefore the likelihood of Ms Brushett’s costs being paid in the sum of £95k, as claimed, are extremely slim. A crowdfunding site to help Mr Hazeldean to pay the compensation monies and costs has quickly exceeded £50k, but we’ll have to wait and see whether all of that is required to meet the costs he’s ordered to pay.
The legal costs would have been far less and the case probably wouldn’t have gone to trial had Mr Hazeldean sought legal advice straight away. Had he done so, he would probably have been advised to bring a counter claim against Ms Brushett for his injuries and more often than not this type of case settles before trial. Ultimately, the trial would have brought with it unnecessary risk for both parties.
It’s a terribly unfortunate situation that two vulnerable road users were involved in a collision when they were just trying to get home from work. I feel extremely sorry that Mr Hazeldean has ended up in this situation – the worry of it all must have been hugely wearing and it could all have been avoided or at least minimised if he’d done things differently. That’s the benefit of hindsight and being familiar with this area of law.
I spend much of my time representing injured cyclists so I appreciate I’m going to be in the minority here but I don’t think the judge’s decision in this case was wrong. A natural reaction amongst fellow cyclists is that the case should have gone against Ms Brushett for looking at her phone when she crossed the road. I don’t necessarily think that would have been a good decision for cyclists in the long run as it would have cast doubt over the principle of causative potency, which regularly operates in favour of injured cyclists in claims for compensation.
What we all find frustrating about this case is that we don’t feel adequately protected (either in criminal or civil (compensation) law) and so when decisions go against us, we end up feeling even more marginalised. The cause of that lies mainly with the inadequate criminal sanctions drivers face, but that’s a different issue and shouldn’t influence your reading of this case – neither party faced criminal charges.
I am grateful to Aneurin Moloney, the barrister instructed to represent Gemma Brushett, for his helpful case report and summary of the liability judgment, both of which have been invaluable in understanding the details of this case and the subsequent judgment.
After taking up cycling to commute between Bristol and Bath, Mark has seen all sorts of incidents and has become a keen advocate for cycling and protecting the rights of cyclists.
Mark is now lucky enough to combine his passion for cycling with his day job as a cycling solicitor at RWK Goodman.