In this All Scotland Personal Injury Court case (Daly v Heeps and Another [2018] SC EDIN 01) Sheriff Braid found the claimant cyclist and the defender motorist equally to blame. That may seem surprising; particularly given the Sheriff's criticism of the defender's credibility, reliability and driving. However Sheriff Braid ultimately concluded that each party could be criticised for the same failures and that therefore, liability should be shared equally.
The accident occurred on an unclassified single track road where the pursuer was part of a three man team taking part in a ten mile cycle race. The defender was travelling in the opposite direction; he was driving a 4x4 vehicle and was towing a boat on a trailer. The pursuer failed to see the defender's trailer (despite his team-mates in front successfully passing the vehicle) and collided with the trailer. The claimant suffered injuries and damages were agreed at £110,000.
The claimant was criticised for not keeping a proper lookout. The Sheriff may have taken into account the fact that the pursuer, despite his claim to be watching his team mates, had previously missed a turning taken by the team mates in front. In any event the Sheriff found that the claimant was not paying proper attention to the road, which was evidenced by the fact that the claimant did not see the trailer being towed by the defender's vehicle. In addition, the Sheriff found that the claimant had been travelling too fast (25MPH) for a single track road on which he might encounter other traffic. Finally, the pursuer could have been further to the left on the road, which would have allowed more room for passing vehicles.
The Sheriff was particularly unimpressed by the defender's evidence. The Sheriff remarked that the defender's manner and attitude "were such that it was difficult to envisage him ever admitting liability for any road accident, even one which was patently his fault" and described the defender's answers to questions as "bombastic" and "scattered with platitudes which, at first blush, were intended to sound impressive but were ultimately meaningless." However, the Sheriff ultimately determined the factual circumstances of the claim with evidence from other sources. He found that the defender had been driving too fast for the road conditions, had not taken proper account of the cyclists and had failed to move as far as he could to the left. Significantly the Sheriff noted that although the defender could have done more to avoid the accident; it was not right to impose a counsel of perfection.
Essentially, Sheriff Braid criticised both parties for the same failings. Each party had failed to concentrate on the road. Where the defender had been focused on the trailer's proximity to the verge behind, the pursuer had been concentrating on the bike tyre in front. Each party had failed to lower their speed on approach to one another and both could have taken up a position which increased the gap between them. Sheriff Braid remarked "a striking feature of this case is that substantially the same criticisms can be levelled against each party." He found, therefore, that liability should be split equally between them.
It is unusual, where the claimant is a cyclist and the defender is a motorist, for the same failures to be viewed equally. Past authority has held the motorist more blameworthy because of the motor vehicle's greater capacity to cause harm. It should be noted however that although the defender in this case had moved into the claimant's space; had the accident occurred on a two lane road, then the defender's encroachment into the claimant's space would have rendered the motorist more to blame.
This case will be a useful authority in future claims by cyclists because of Sheriff's Braid's conclusion that cyclists bear the same responsibility for accidents as motorists; despite the disparity in the vehicles' destructive capacity. The fact that the Sheriff was so disparaging of the defender underlines the strength of this principle.
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