Published: 30th Apr 2024 Images: Scottish Cycling

“Contributory negligence” – Legal Advice from our Partners Digby Brown

Diane Cooper, Partner from Digby Brown Solicitors has provided this advice regarding “contributory negligence” for cyclists involved in a collision on the road.

When you’re out a ride and it’s dark before you know it – then realise your lights are still at home!

It is not uncommon for the insurance company for a third party to argue that the actions of our injured cyclist either contributed to the accident or contributed to their own injuries – this is known as “contributory negligence” and the result of this argument could see a rider having their compensation payment reduced.

Imagine a cyclist is out after work, gets caught for time and does not make it home before darkness… they are not dressed for darkness and don’t have lights on their bike… then they are struck by a vehicle who failed to see them.

Cyclists are deemed vulnerable road users in the eyes of the law and this places a greater onus on drivers of “lethal weapons” to drive with due care and attention and awareness for other vulnerable road users.

However, in a cycling injury claim it is unfortunately not as simple as being able to point the finger solely at the driver – nor can it be pointed solely at the cyclist. As with any legal action, the devil is in the detail and teasing out the causative factors of an accident depends on the precise circumstances of each unique incident.

Your legal team should forensically examine the accident circumstances, the physics behind the accident and the actions of both parties to fully explore all factors that ultimately resulted in the collision. The court will then dissect the very precise actions of both parties to determine the responsibilities placed on each party – and ultimately agree the portion of blame that rests with each party.

As you can imagine, vehicle insurers (or at least, the lawyers that act for the insurers) can be very quick to deny liability and blame the cyclist. However I know from experience that it is VERY unusual for a driver to escape liability completely.

The reason behind a collision between a vehicle and cyclist does not rest simply on whether the rider had lights or wore bright/reflective clothing – there are many other factors that can contribute to a crash!

The speed of the vehicle in accordance with road or weather conditions. The condition of the road surface. Simple carelessness. Was the driver impaired at the time (not just drink-driving but using a phone when they should have been paying attention to the road ahead)? Did the vehicle’s brakes fail because the registered keeper failed to maintain their vehicle properly? The potential reasons for a collision are endless and the court recognises this.

It is therefore vital to explore all causative factors which resulted in the collision and gather as much supporting evidence as possible. When you drill into the accident circumstances we do often find driver behaviour frequently lands in the ‘causative box’ of a collision i.e. that the driver’s actions fell below the standard of reasonable care owed to fellow road users.

Police evidence can be helpful too. Crash scene evidence on tyre marks, evidence of skidding, location of debris and landing positions of bike, car and parties can all be useful in calculating speed relative to road conditions and/or unsafe vehicle manoeuvre. If needed, we can then instruct a forensic collision investigator to prepare a reconstruction report in these cases. The more evidence that we have been able to ingather will determine the accuracy in which calculations relating to speed, conspicuity and perception can be credibly reconstructed.

However it should not be assumed the police will have obtained this evidence so if physically possible we recommend the cyclist capture as much detail as possible immediately at the scene – especially any witness details.

The level to which a cyclist has caused or contributed to the accident (if at all) will very much be fact specific. To investigate the relevancy of the failure to illuminate and thus the relative blameworthiness of the cyclist, it crucial to ascertain evidence as to the level of both natural and artificial lighting at the material time. Darkness/low lighting is subjective so camera footage and photographs can be invaluable here to demonstrate street lighting and skyglow. In some instances we can obtain meteorological reports but photos taken at the material time are invaluable.

Rule 60 of the Highway Code stipulates the requirement to have a front white light and your rear red light illuminated at night. Rule 59 and 60 also recommend the use of reflective clothing, accessories and reflectors.

So yes, an insurer might argue you were to blame because you didn’t have lights – but that does not make it so! And as you now know, riding without lights in low light is not the be all and end all to a personal injury action.

There are lots of ways to show why a driver is not absolved of all responsibility and thereby ensuring you have the best chances of recovering compensation and hopefully, get you the support you need to get back on the bike.

Diane Cooper

Partner, Digby Brown Solicitors