Can an injured unlit cyclist claim compensation?
I recently acted for Mr C, a cyclist who, as he was travelling south over Tower Bridge, collided with a car door of a vehicle which had suddenly pulled in towards the pavement and opened the passenger door of the car. Mr C had no time to stop and as a result broke his collar bone when he collided with the door.
Mr C instructed me to act for him in his personal injury claim. I sent a letter of claim to the insurers who immediately denied liability, providing a statement from the passenger saying that he checked both mirrors, and proceeded to open the door cautiously but failed to see Mr C as he did not have high visibility clothing on or lights on his bicycle.
Mr C’s instructions were that he did not have lights on his bike as it was not yet dark. However, the accident had occurred at around 4.30pm on a February evening which, on balance may have been found by a Court to be dark enough that he should have been using his lights.
Although a failure to wear high visibility clothing is not a bar to establishing liability, the Highway Code advises that cyclists should wear light colours or fluorescent clothing. Rule 60 provides that at night they must have white front and red rear lights.
However, if the Court were to find that it was in fact dark enough for Mr C to have used his lights, this was not necessarily a bar to bringing a claim.
In the case of Callier v Deacon a motorist was still found to be partly liable for an accident, even though the cyclist was found to be 55% contributory negligent on the basis that the cyclist had failed to wear reflective clothing. At paragraph 18 of the Judgment, McKenna J confirmed that “of course a driver cannot excuse himself by saying that the cyclist was unlit.”
Further, the judgment of Upjohn LJ in Hill v Phillips confirmed that in that particular case, “everyone knew that there were cyclists who rode their bicycles without lights or men in dark clothes on country road and motorists must anticipate their presence.”
I referred the insurers to these cases, and explained to Mr C that, although he may have his compensation reduced if the Court found he should have been using his lights, on balance, I thought he had reasonable prospects in establishing that the passenger was at fault for the accident.
At the point when I issued Court proceedings the insurers’ solicitors suddenly confirmed they were amenable to dealing with Mr C’s claim with no deduction for contributory negligence and Mr C was compensated in full for his injuries.