Cyclist who ignored warning sign and collided with car loses personal injury appeal
A cyclist who was injured in a road accident near the Old Course at St Andrews has failed in his appeal against a decree of absolvitor pronounced in favour of the motorist involved in the crash in the Sheriff Appeal Court.
Gordon Wallace sought damages from David Roache and his insurer, Liverpool Victoria Insurance Co Ltd, and argued that the sheriff who originally heard the action had erred in finding that he had not established fault and negligence on the part of the first defender.
The appeal was heard by Sheriff Principal Mhairi Stephen QC, Sheriff Principal Duncan Murray, and Sheriff Principal Derek Pyle. The appellant was represented by Crawford, advocate, and the defenders by Murray, advocate.
Ignored ‘give way’ sign
The accident occurred on 25 July 2018 when the pursuer, described as an “experienced cyclist” was travelling along a cycle route adjacent to the A91 at St Andrews. On that day, the Senior Open Championship was taking place at the Old Course, and another nearby golf course was providing a temporary car park for visitors to the championship. The pursuer was not aware of this fact at the time.
At around 4:45pm the first defender left the car park via a gate near where the cycle path briefly crossed the access road to the course. As he moved forward to gain a line of sight to his left, which was not immediately visible upon exiting the gate due to a hedge, his car was struck by the pursuer’s bicycle. The first defender had been travelling at no more than 15mph, while the pursuer was estimated to be travelling at around 20mph.
The pursuer did not notice that the gates to the temporary car park was open or reduce his speed when approaching the road and he ignored a ‘give way’ sign indicating the access road had priority over the cycle path. In the All-Scotland Sheriff Personal Injury Court, the sheriff found that the first defender had taken reasonable care when emerging from the gate and pronounced absolvitor in favour of both defenders.
Counsel for the pursuer submitted that the sheriff’s decision was plainly wrong as he had failed to consider relevant factors in determining whether the first defender had exercised reasonable care. Further, he had erred in finding it was not reasonable for the defender to have brought his car to a complete stop when exiting the gate, as that was the only way the accident could have been avoided.
In response, it was submitted for the defender that the sheriff had been correct to reach the findings he did. The overwhelming cause of the accident was the excessive speed at which the pursuer was cycling. Whilst the collision was inevitable, this was not because the defender had failed to take appropriate precautions but because the pursuer had failed to slow down or stop when approaching the access road.
Identified foreseeable risk
Delivering the opinion of the court, Sheriff Principal Murray began: “Some of the propositions made by the pursuer are entirely without merit. His submission failed to recognise that the sheriff concluded that the fundamental cause of the accident was the negligent and irresponsible action of the pursuer in failing to comply with the road sign and to give way. There is no substance to the suggestion by the pursuer that he was less culpable or blameworthy because he was on a leisure path designed to separate him from motor traffic and was only a danger to himself.”
He continued: “The sheriff found that the first defender had identified the foreseeable risk of there being a cyclist on the cycle path and accepted that the 10 actions of the driver in taking care against that eventuality by driving slowly at less than 15mph and keeping a lookout meant that he was not in breach of his duty of care.”
Considering whether the defender ought to have exited the car park in a different way, Sheriff Principal Murray said: “We do not accept the pursuer’s proposition that the first defender should have edged out. That is the paradigm case of a ‘counsel of perfection’ as described by Phillimore LJ in Clarke v Winchurch (1969). We also note that the sheriff records that had the first defender stopped at the hedge and edged out incrementally the pursuer’s expert was unable to say on the balance of probability that a collision would have been avoided.”
He concluded: “We agree with the sheriff’s evaluation that the accident arose from the actions of the pursuer who ignored the give way sign and proceeded at a speed where he was unable to stop at a junction where the roadway had right of way over the cycle path. This should have been apparent to him because of the warning signs which were visible and his knowledge of the cycle path, those errors being compounded by his not riding on the left side of the cycle path.”
For these reasons, the appeal was refused.