Be Bright to Survive

Be seen! But that’s only half the problem. Everything else is down to the nut behind the wheel.

The stats are that in 44% of collisions either of the parties did not see the other and in 21% there was a failure to appreciate the speed of the other vehicle.

Behind that are some physiological factors acting upon a human’s abilities to control a vehicle, meaning how readily can the presence of a cyclist be clocked and once seen how long it takes a motorist to do something about it.

Let’s consider the ‘doing something about it’ aspect first, meaning the thinking or reaction time.

All the studies into reaction time come up with a real world figure of between 1.5 and 2 seconds. That is the basis for crash reconstruction used by the Transport Research Laboratory (TRL) and the Institute of Traffic Accident Investigators (ITAI).

What does that mean in terms of distance? Example: at 60 mph (national speed limit which applies on the majority of rural roads) a vehicle will travel the length of a football field (112 yards or 102m) in 3.8 seconds.

Using a really quick reaction time, from perception to doing something about it, (1.5s x 26.80m) it’s covered 40m or 132 feet. Then it has to slow down or stop.

At 30mph, the predominant limit in urban areas it’s still 66 feet (four and a half car lengths), or 20m before the brakes go on or avoidance is begun.

But first the driver has to see, or perceive, that there’s something to avoid or to which it’s necessary to react. As we enter the time of year when the hours of darkness exceed those of light making oneself ‘there to be seen’ is crucial.

The pool of light from a dipped beam headlight is generally in the 56 to 60m bracket. Tests undertaken by Sussex Police (among others) indicate that a person in predominantly dark clothing (a darker shade of grey) will be likely to be perceived at 24-26m while white or bright clothing increases that to 45m.

Then we come to the actual ability to look and see. There’s a general tendency to assume that we are more conspicuous than we really are.

The ‘relaxed’ (or fatigued) focal distance of the human eye is between 11 to 13m. That’s the default setting if you will. Looking further requires an actual input. Additionally visual acuity reduces by up to 70% at only a small deviation away from the central field of vision, which is 5 degrees from the central axis. So part of the perception reaction process is likely to involve rotation of the head, movement of the eye and re-focussing.

Be mindful of the concept of ‘looming’. The problem is the ability to determine the correct distance and speed of the approaching cyclist. If the cyclist moves 20 m (from 160 to 140m distant) the perceived size will increase by only 10%. But the same cyclist moving at the same speed between 40 and 20m distant will double in size. Think of the analogy of a distant train approaching a platform. Refer back to the opening: 21% of collisions result from failure to appreciate the speed of an approaching vehicle (cyclist).

A single front light may be discerned as a cycle, but a driver planning to emerge from a side road into the cyclist’s path will be juggling preconceived notions of cycle speed against the light which will (may) be seen but by virtue of its small size increasing only marginally until the final seconds, especially if ‘merging’ into a backdrop of other vehicles’ headlights.

That’s quite a lot to happen in the ‘thinking distance’. So even though a cyclist may derive a feeling of safety from being ‘there to be seen’, that is no guarantee that the driver has actually registered him (or her) through the flak of other competing distractions upon the driver’s attention; dealing with the inevitable driving tasks (risk situations) and the processing of information from legitimate vehicle systems to say nothing if in-car entertainment, navigational devices and mobile phones.

Lights, Clothing, Retro-reflective if we all want to be here when the clocks go forward.

Catastrophic component failures: what don’t Insurers understand?

Reported by Road cc is the appallingly sad case of Dr Daniel Gordon whose Planet X Tempest SRAM Force 1 collapsed under him on 10th August 2020 causing life changing injuries. Dr Gordon and his partner are obviously made of stern stuff because they have got on with their lives around the injuries sustained.

Why has such an apparently straightforward case come to court? It could be that Insurers have made a without prejudice financial offer which is deemed insufficient by Dr Gordon’s lawyers, so Insurers are having a go at liability and causation to try to reduce their exposure through a finding of some contribution.

Or it could be that Insurers are not wanting to acknowledge the responsibilities which the legislation places upon them. In my experience in running scores of component failure cases, that is not uncommon. The arguments often verge on the bizarre. In another steerer failure case, Condor’s insurers argued that the presence of a small bag on the cycle’s handlebars pre-disposed the fork to failure. When the dropout of a Cervelo’s fork literally dropped out, insurers argued many alternative theories explaining the failure including that the claimant’s habit of inverting his bike for maintenance might have in some way been responsible.

The abundance of consumer legislation tends to suggest that if a part purchased from a retailer, whether a High Street Independent Bike Dealer (IBD) or a national chain fails, then losses sustained will be compensated promptly and properly.

If only !

The Consumer Rights Act gives a right of redress against the point of sale but does not prevent that retailer (meaning their insurer) claiming indemnity from their supplier, the importer and the manufacturer or importer into the EU.

Which leads to a process which can go on for years.

So to avoid this the knack is to identify the ultimate source (who’s going to write out the cheque?) and go for them under the Consumer Protection Act. But as there’s a 3 year limitation period if someone is not included, the right to claim vanishes against that party after 3 years.

The only problem is that while the CPA provides for compensation for injury and consequential losses, it does not cover the cost of the actual defective item, so the retailer may also be joined in under the CRA. But at least that’s only 2 defendants as opposed to 3 or 4.

Under no circumstances part with the failed componentry. Keep it in the post-crash condition without further disassembly. A screening report from a scientist and/or engineer will identify why the failure has occurred, although as a matter of law a Claimant is NOT required to prove the precise design or manufacturing failure, flaw or mechanism which was the root of the failure. The obligation extends no further than establishing that the product was defective. This is defined thus:

CPA S3 (1) Subject to the following provisions of this section, there is a defect in a product for the purposes of this Part if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.

(2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including—

(a) the manner in which, and purposes for which, the product has been marketed, its get-up, the use of any mark in relation to the product and any instructions for, or warnings with respect to, doing or refraining from doing anything with or in relation to the product;

(b) what might reasonably be expected to be done with or in relation to the product; and

(c) the time when the product was supplied by its producer to another;

and nothing in this section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.

The defences advanced to a Consumer Protection Act claim will include:

  • There had been an intervening event which was more likely to be causative of the failure than a flaw in the design/production process,
  • The Claimant has neglected servicing and maintaining the machine in accordance with the User/owners’ manual
  • The machine has been used inappropriately.
  • Although the primary Limitation Period is 3 years from the date of the accrual of the cause of action (the failure), there is a 10 year longstop commencing when the product was “put into circulation”, which means that a bike purchased in say 2006 and which failed in 2018 would be out of time for a CPA Claim. (the solution would be to sue the retailer under the SOGA within 3 years of the failure: before 2021)

A prudent cyclist who has purchased a bike costing a serious amount for a specific purpose will keep a file on its history, recording mileage, inspections, services and maintenance whether undertaken personally or commercially and any mishaps (collisions/crashes). Receipts ought to be kept. It’s a sensible idea (if possible in the era of internet shopping -always a good idea to support your local IBD) to have at least the first service undertaken by the supplier.

Don’t expect a swift resolution to a claim. The Cervelo crash mentioned saw legal representatives from Cervelo, the fork manufacturer THM and the financier who provided the credit facility all pitching up. All very cumbersome and expensive and a reason why it’s essential to ensure your legal representative Knows What They are Doing!

Highway Authorities: Fit for Purpose?

 

Once more, a Highway Authority’s admitted breach of its duty under S41 of the Highway Act has caused the death of a cyclist; on this occasion the  much respected and loved Mr Colledge in a crash at Winmarleigh in January 2023 in a monster defect which the locals had reported to Lancashire County Council on 9th September 2022 but which the Inspectors has failed to find or repair. At the inquest Lancashire’s preposterous argument was that the defect must somehow have ‘healed up’ when the Highway Inspectors checked the road. Here’s what the Coroner had to say:

“I consider that the position adopted by the Council in respect of this defies all reasonable logic……………………………..the council’s maintained position in respect of the crack is, I consider not capable of belief and contrary not only to the weight of the evidence but also to common sense.

Mr Colledge’s family are well within their rights to feel outraged at the continued refusal of LCC to accept the glaringly obviously with regards to the ongoing presence of this crack”.

The ‘common sense’ comment might equally well be applied to so many Highway Defect cases I’ve run over the years. Since the Code of Practice was watered down in 2016, Highway Authorities have been able to make their own rules for categorization and intervention of defects. The old Code specified dimensions, its successor leaves that to the individual HA.

Thousands of injuries, minor or not so minor, go uncompensated every year. The HA’s insurers boast that they are only compelled to pay out in 22% of notified cases.

But it’s not just the victims who are losing out. The taxpayer also takes a hit, because when a claim is rejected, the NHS cannot claim back the costs of hospital treatment nor can the DWP recover any benefits paid to the injured party. Win-win for the HA’s and their insurers.

The claims departments of HA’s and insurers are well funded and briefed sufficiently to be able to bamboozle a Claimant in person or their lawyer, who will likely be working on a no win-no fee retainer and who will be paid only  on a paltry scale of fixed costs should they win. Whether by accident or design, I have seen HA’s conveniently omit to disclose key images and documents until a very late stage (so defeating the prospect of a Claimant introducing their own expert evidence) and the same HA as in the Colledge case disclosing out of date/superceded material to the Claimant’s representatives.

The playing field is far from level, which is of little solace to the bereaved families of Mr Colledge, Martyn Uzzell (North Yorks), Carolyn Dumbleton (Derbyshire)……..the list goes on.

A few years back the eminent transport and cycling academic Professor John Parkin once published a paper entitled “Lancashire: the Cyclists’ County”; presumably not on the Highway Department’s reading list.

Resources

We’ve covered (with links) checking for a vehicle’s tax, insurance and MOT.
Imagine you’re damage only (not injury) so retaining a lawyer is uneconomic (cannot recover legal costs unless have injuries to the value of at least £1000), so it’s you v The Insurer.
Ignore the Official Injury Claims Portal and the On-line Claims Portal. The former is for non-vulnerable road users (car passengers for example) whose injuries are below the injury small claims threshold of £5000. The latter is for claims professionals like lawyers.
You are stuck with the Small Claims process in the County Court in England and Wales and a similar though differently named system in Scotland. Make a court claim for money – mygov.scot
A fixed amount (eg replacement buckled wheel and tyre) is called a Liquidated Claim. The value will be based on what the replacement has or will cost. A receipt or estimate is needed. This amount may form the basis of a claim through Money Claims on line, a division of the County Court Make a court claim for money: Make a claim – GOV.UK (www.gov.uk)
If the claim is for an amount which cannot be quantified, it is UNLIQUIDATED and will be started with a Claim Form (Form N1) which when completed will be sent to the address in Northampton found in the link above with the necessary fee.
The booklet ex306 (available on line from HM Courts and Tribunals service) explains the procedure.
The Court process is short on investment and human resources. Don’t book a holiday in reliance on anticipated recovery.

Micromobility: the e-scooter dilemma

Micromobility: E-scooters and other likely uninsureds.

If the collision or loss arises out of use by the Third Party of a vehicle intended or adapted for use on roads which turns out to be uninsured OR the driver/rider flees the scene, life gets complicated.
If the collision has involved an uninsured motor vehicle the Motor Insurers Bureau is ‘the insurer of last resort’. If the erring driver and their vehicle cannot be traced, the MIB is there as the safety net.
If as a legal cyclist you are injured by an e-bike or e-scooter rider who flees, what avenues to injury compensation are there?
A legal (but uninsured) e-bike does not fall within the MIB’s definition of a vehicle, so all conventional avenues are closed.
IF there was any evidence that the e-bike is outside the definition of a legal EPAC, then it falls within the definition of vehicle (moped) and the MIB may be liable. How on earth does the victim prove the negative? CCTV showing manner of progress or make/model? Witnesses? (An e-bike cruising uphill with little or no pedal input is unlikely to be legal). The Police ought to be interested.
Were the rider to do the decent thing and remain at the scene, establish name and address and record their description. Next, are they insured under a Home & Contents or Bike Policy? If not, then it’s just possible that You, the victim may have Unsatisfied Judgement Cover under your own Policy, but this is technical and a proper lawyer is needed.
E-scooters. Currently, anything NOT under a local authority hire scheme is illegal and technically a moped, so compulsorily insurable. The route is then to the MIB, uninsured motorists if the rider hangs around to give name and address, untraced if they disappear.
22% of all reported E-scooter collisions involve injury to another party, but the suspicion is that most E-scooter collisions are NOT reported. Again, the Police should take an interest.
The MIB is funded by a levy placed on Insurers who pass the cost on to all Policy Holders. So, the responsible are paying for the misdeeds of the uninsured and the illegals.
Someone is going to be grievously injured by a bandit e-bike or e-scooter and have an uphill struggle to gain any redress at a time they can least afford it.

Financial Implications: What will the real cost of a claim be to a cyclist?

For the first 25 years helping cyclists we were able to reassure the clients that they would receive the full amount of their award without any deductions because the compensator would also cover the legal costs. The polluter pays is the direct analogy. That all changed is 2013.

Unless you are sufficiently fortunate to belong to a Cycling organization such as Cycling UK which offers a special deal to its members, expect to see anywhere between 25% and 33% (plus VAT) of the award go towards legal costs plus (possibly) a premium for something called After The Event (ATE) insurance.

Or you may have some form of legal expense insurance (LEI) either as a bolt-on to a Home and Contents Policy or as part of a Policy of Cycle Insurance which has been purchased as a stand alone item. While the insurance may be branded as cycle-specific, the likelihood is that the law firms on the Insurer’s panel will not be cycle law and claims specialists. This leads to problems, more of which appears in ‘How to appoint a representative’.

Why the deductions? It’s a long story which we’ll save for a dedicated page but the blame lies in part with politicians interfering in something about which they knew very little and parts of the legal profession which exploited a set of rules designed to assist the accident victims.

Cycle-Aid: The Original Helpline for Injured (or disgruntled) Cyclists

We’ve been around for a long time, since 1989 to be exact. Back in the day we pursued claims, recovering millions of pounds for thousands of cyclists, but with a proliferation of organizations offering their services we thought it time to offer an impartial overview and try to help cyclists through the maze so they get the best outcome.

It’s quite possible we’ve met many visitors to this site after a decade attending the Cycle Show, or at Le Depart of Le Tour in Hyde Park, at countless cycle conferences and courses, at events we have sponsored and of course, as clients or over the Helpline. If so, we hope the contact was helpful.

You’ll be able to find information on cyclists’ rights and the obligations of other road users, Highway Authorities and the Cycle industry in a couple of clicks, but most importantly what to do right now if you’re just home and wondering.

Highway defect evidence.

If the index defect is a depression, bridge it, add a ruler or tape perpendicular to the ‘bridge’, measure down, record and image. 40 mm is the rule of thumb. Same goes for any differential in level, lateral or transverse to the highway.

If the defect is standing proud of the surface, balance a spirit level across and support one end when the bubble is dead centre; then measure down from the other and record.

In the spilt concrete case of Thomas v Warwickshire CC the Court decided a 20 mm protruberance was sufficiently dangerous to have merited the Council’s attention.

Bike as a comparator

This a channel running parallel to the direction of travel on the A590 in Cumbria just outside the entrance to Lakeside and Haverthwaite steam railway.

It is a design and construction issue, not a Highways Act failure to maintain. Unsurprisingly the bike stopped dead, the rider sustained a comminuted fracture to his clavicle and Highways England paid for the surgery, consequential losses and damages for pain, suffering and loss of amenity.

The bike in the pic belonged to the Cycle-Aid investigator. Always good to have one handy.

Claims Process

If you’ve had the misfortune to be taken out by another road user, highway defect of failed component, the material here and else place on this site ought to have provided some immediate points of advice.

You’ll now be ready to find a representative to take the claim forward. This is a very important step. We’re not touting for business on this site but trying to help cyclists help themselves, after over approaching 40 years of practical experience and picking up the pieces.

If membership of a Club or your Insurance takes you in a particular direction, that’s fine, but still do your ‘due diligence’ to ensure the organization does actually have the knowledge and experience and isn’t just saying so.

Experts? Well, the only Experts are dead ones because everyone has something; no-one knows it all. Your representative ought to ‘talk bike’, know the relevant Road Traffic law and Highway Code, be well versed in Highway Maintenance protocols and be able to proffer an appraisal of your circumstances.

Specialists? The ONLY benchmark which raises a Personal Injury Solicitor above their fellows is membership of one of the Law Society’s Panels; here it’s the Personal Injury Panel. Acceptance onto the Headway or Spinal Injury Association Panels is also a helpful indicator of experience; chances are that anyone on the latter two will also be on the Law Society’s Panel.

There’s no other certification which is as thorough. Membership cannot just be bought. While for reasons explained a modest claim is unlikely to receive the personal attention of such a representative, their presence in the Firm does suggest an organization which is prepared to go the extra mile.