FENELLA SINCLAIR (A PROTECTED PERSON BY HER LITIGATION FRIEND & DAUGHTER REBECCA ROSALINA DA SILVA LIMA) v RACHEL LOUISE JOYNER (2015)
A driver was liable for brain injuries suffered by a cyclist where the parties had collided after the cyclist had deviated into the driver’s side of the road when going around a bend. Upon seeing the cyclist, a reasonable, prudent driver would have stopped to allow the cyclist to pass safely. Nonetheless, the cyclist’s conduct in riding in the middle of the road had contributed materially to the damage caused, and on that basis she was assessed as having been 25 per cent contributorily negligent. The court was required determine liability in a personal injury action brought by the claimant cyclist against the defendant driver. The claimant and defendant had been travelling along the same road in the opposite direction to one another. As both parties came around a bend they collided and the claimant fell from her bicycle, sustaining severe brain injury.
The claimant submitted that the defendant failed to keep a proper lookout in that she failed properly to assess the hazard presented by the claimant, who was cycling in the middle of the road and standing up on her pedals. She contended that the defendant failed to appreciate that, in deciding to drive past her at the bend rather than braking and stopping to allow her to pass, she would not allow the claimant sufficient room. The defendant asserted that no fault could be attributed to her for the accident. She argued that as she approached and drove past the claimant, she was driving slowly, safely and appropriately, as far over to her nearside as possible. She submitted that she reasonably considered the claimant to present a hazard which required her to do no more than slow down to drive past her. She contended that the claimant then lost control of her bicycle and deviated unexpectedly into the defendant’s side of the road as the car drove past.
(1) The courts should not fall into the trap of imposing a counsel of perfection upon car drivers, thereby distorting their duty to take reasonable care, Ahanonu v South East London and Kent Bus Co Ltd  EWCA Civ 274, (2008) 105(5) L.S.G. 25 considered. It was relevant to bear in mind that the defendant was driving at a reasonable speed along a road she knew well, with her family in the car, on a warm summer’s evening in a quiet, rural location, and that, after she came around the bend, the events that occurred did so within a very short timeframe. Nevertheless, the claimant had established to the requisite standard that the defendant failed properly to assess the hazard the claimant presented as she drove around the bend and saw her, and that she failed to stop when it was necessary to do so to allow the claimant to pass by safely. The defendant’s carriageway was 2.5m wide, and the width of her car was 2.1m. Even if she were right over to her nearside, that left at best 0.4m between the car and the claimant who was, on the evidence, riding her bicycle only just on her own side of the road. The defendant noticed the claimant’s proximity to the centre of the road as soon as she saw her, and for the reasonable, prudent driver in those circumstances, alarm bells would have sounded instantly. Further, the fact that the claimant was riding up on her pedals and not sitting on the saddle normally meant that the defendant would have seen enough to form the view that she was not a “serious cyclist” and that she was in discomfort. The defendant’s failure to see that the claimant was in discomfort, together with her estimate that the claimant was only two-to-three car lengths away when she first saw her, indicated that she was not in fact keeping a proper lookout as she came around the bend. Motorists had to anticipate hazards in the road, particularly from vulnerable road users such as cyclists, and be ready to react to them. The defendant could not be relieved of that duty by seeking to blame the claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre after the front of the car had passed her. The fact that a collision occurred demonstrated that there was insufficient room for her to pass the claimant safely and that the defendant’s assumption to the contrary was wrong. She should have appreciated that her car was too close to the centre of the road for her to have passed safely. The reasonable, prudent driver would have braked immediately to allow the cyclist sufficient room to ride past. On the evidence there was ample time for the defendant to have done so. The causal effect of the collision was to deprive the clamant of the opportunity to regain control of her bicycle. There was no evidence that the claimant would have fallen over without any contact. On that basis, primary liability was established (see paras 56-57, 59-61, 65-68 of judgment).
(2) The claimant bore some responsibility for the accident. She should not have been riding her bicycle in a central position in the road, and her negligent conduct in doing so materially contributed to the damage caused. In all the circumstances, having regard to the parties’ respective positions and conduct, the appropriate apportionment of fault for the claimant was 25 per cent (paras 69, 73).