Cyclist hit by 4x4 during bike race awarded damages but sheriff rules both were equally to blame



A cyclist who was struck by a 4×4 towing a trailer while taking part in a bike race has been awarded £55,000 damages.

Graeme Daly, who was participating in a 10-mile team time trial event in Perth and Kinross, was seeking £110,000 following the collision in 2015.

The All-Scotland Sheriff Personal Injury Court ruled that the motorist David Heeps breached his duty of care towards the cyclist because he was driving at “excessive speed”, but also held that Mr Daly was 50% to blame for the accident.

Liability

Sheriff Peter Braid heard that the pursuer was injured while competing in a race organised by Kinross Cycling Club on 23 August 2015 when he was involved in a collision with a Ford Explorer — which was towing a Toyota Marine Sport boat — driven by the defender, who was insured by the second defender Markerstudy Limited.

Mr Daly and team-mates David Barclay and Gordon Dick had been cycling along an unnamed road near Mawhill when the accident happened.

The pursuer, who was represented by advocate Preston Lloyd, sued the defender for damages based on negligence.

Damages were agreed at £110,000 but the defender, who was represented by advocate Craig Murray, denied liability.

The court was told that the pursuer and his team-mates were cycling in single file, at around 25 miles per hour, as they passed Newbigging Farm, with Mr Barclay in the lead, followed by Mr Dick, and the pursuer in third position.

Warning

Meanwhile the defender, who was aware that a cycling event was taking place in the area having already passed at least two groups of cyclists while travelling along the unclassified road, was approaching in the opposite direction.

Mr Barclay moved to the left after seeing the 4x4 approaching when it was about 200 yards in front of him and shouted a warning to his team-mates.

Both Mr Dick and the pursuer also moved to the left after hearing the warning but the pursuer, who had been relying on his team-mates to be his his “eyes and ears”, had not seen the trailer.

Mr Barclay and Mr Dick passed the Ford Explorer and trailer, missing it by “a matter of inches”.

As the pursuer passed the vehicle he assumed he had safely negotiated the hazard, but he did not see the trailer and his right arm came into contact with it, causing him to fall from his bike.

Contributory negligence

The sheriff found that the defender breached his duty of “reasonable care” because he did not keep to the left and drove at “excessive speed” having regard to the nature of the road and the known fact that a cycling event was taking place.

The court ruled that the pursuer, having suffered loss injury and damage through the fault of the defender, was therefore entitled to reparation.

However, the sheriff also found that the pursuer had been travelling at excessive speed and failed to keep a “proper look-out”.

The pursuer’s own negligence “materially contributed” to the accident, which was filmed on a dash-cam of a bus that had been following the cyclists along the road.

In a written judgment  Sheriff Peter Braid said: “The defender’s duty was to drive with reasonable care… ad he been driving slower, he ought to have been able to have been even marginally further over to his left, and if he had been, the accident probably would not have occurred given that, as it was, it was only the pursuer’s right shoulder which struck the outrider. I therefore also find that the defender’s negligence caused the accident.

“However, the pursuer cannot escape criticism either. He was not looking at the road, even after he was aware that the defender’s car was approaching, and he did not see the trailer. He was also travelling at excessive speed, having regard to the respective widths of the road and the defender’s rig.

“The duty on the pursuer to take reasonable care for his own safety was not lessened by the fact that he was taking part in a team trial cycling event. It may well be that he chose to rely on Mr Barclay to act as his ‘eyes and ears’, and it may be that Mr Barclay should have shouted a further warning on seeing the trailer, but that does not absolve the pursuer of his duty for his own safety in a question with the defender.”

He added: “A striking feature of this case is that substantially the same criticisms can be levelled against each party. Just as the defender was not concentrating on the road but on the verge, so too was the pursuer’s concentration elsewhere. He was not looking at the road but at the rear wheel of the bike in front.

“Just as the defender maintained his speed, because he was unable to stop, so too did the pursuer, because he was participating in what was, in effect, a race. Neither party was as close to his nearside verge as he might have been had he been travelling at a lower speed, because of the need to avoid potholes.

“The accident occurred because the parties approached each other at approximately the same speed, neither hard up against his verge, leaving a very small gap to be negotiated by each of them at a closing speed of 50mph. It is difficult to avoid any conclusion other than that the parties contributed equally to the accident and I therefore assess the pursuer’s contributory negligence at 50%.”



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