Opinion: Ruling against cyclist may actually be good for cyclists
By Simon Louisson
A lost court ruling for a British cyclist, who was sued for colliding with a “zombie” pedestrian running a red light, may actually be great for cyclists and cycling in the UK as well as Aotearoa.
A UK court awarded huge legal costs and compensation against landscape gardener Robert Hazeldean for injuring yoga teacher Gemma Brushett, who stepping onto the road against the lights while engrossed in her phone.
Hazeldean, cycling near London Bridge had sounded a loud airhorn, shouted, swerved and braked in a bid to avoid the distracted Brushett.
The court heard that Brushett was one of a “throng” trying to cross the road at the start of rush-hour. On hearing the horn and shouts,she jumped in panic but actually only moved ino Hazeldean’s swerve Both the cyclist and Brushett were left unconscious after the 15-25km collision.
The London County Court awarded her legal costs of over 100,000 pounds (NZ$200,000) and compensation of over 4,000 pounds for sustaining a minor head injury.
Judge Shanti Mauger accepted the cyclist was “a calm and reasonable road user” and that Brushett was looking at her phone when she walked into the road in front of him.
While Hazeldean’s lawyer claimed the ruling would set an “alarming precedent” it actually may be extremely good news all vulnerable road users if the same standards are applied to car and truck drivers, who are far more likely to face similar situations.
While British court rulings no longer have standing in Aotearoa, they have relevance if the conditions surrounding the case are similar. How other similar jurisdictions deal with relevant cases is also important in New Zealand law.
Judge Mauger’s crucial ruling was that Hazeldean was liable because: “Cyclists must be prepared at all times for people to behave in unexpected ways.”
She said: “When I stand back and ask: ‘How did the accident happen?’ it seems to me that Mr Hazeldean owed a duty to other road users to drive with reasonable care and skill,” she said.
“Even where a motorist or cyclist had the right of way, pedestrians who are established on the road have right of way. Mr Hazeldean did fall below the level to be expected of a reasonably competent cyclist in that he did proceed when the road was not completely clear.”
This ruling may be appealed in a higher court, but if it stands, it essentially opens the way in the UK and Aotearoa to applying the Dutch law that decrees road users – especially motorists – even when they have the right of way, must expect the unexpected from other users.
What that means in Holland and other European countries with similar jurisdictions, is that if a child is playing on the side of the road, a motorist (or cyclist) should drive safely enough to avoid hitting her or him even if the child should suddenly dart onto the road. The motorist is still responsible and liable.
Similarly, in Holland, even when a cyclist may go through a red light, other road users have to be prepared for all such eventualities.Case law in the Netherlands has repeatedly ruled in favour of cyclists and pedestrians, as in this British case, despite their seemingly senseless or irrational behaviour.
The legions of cycle haters in New Zealand and even some rational motorists will no doubt go bananas at the supposed apparent unfairness of this law, but the bottom line is that it leads to less accidents and injuries and vulnerable pedestrians and cyclists get more protection in an their uneven conflict with motorists.
Hazeldean said he was “reeling” from a verdict that would leave him bankrupt, added that he was alarmed by the precedent that it might set.
“I can only hope that the focus on this case highlights the vulnerability of cyclists, both physically and against the courts, and that it might help reform a legal system that appears to leave certain road users disproportionately exposed.”
But motorists might well be even more alarmed. There is every reason that this ruling applies to them and so cyclists and pedestrians should be celebrating.
Following an accident last year when truck driver Jason Collier killed cyclist Ben Den Ouden in Napier, chair of Bike Hawke's Bay, Don Kennedy,called for the Dutch law to apply here.
Ministry of Transport manager of mobility and safety Brent Johnston said the ministry was not investigating a strict liability approach for cycling safety but "as part of the development of a new road safety strategy we will be considering all reasonable actions to enhance the safety of cyclists and other vulnerable road users".
While Collier was prosecuted for careless driving causing death, no one was prosecuted in a similar accident where Napier doctor Helmut Gromer was killed by a truck that hit him from behind as he rode his bike home.
Road Transport Forum chief executive Ken Shirley claimed cyclists at night without lights not wearing appropriate clothes were “asking for trouble” and said he did not favour the Dutch model despite it resulting in far fewer cycling and pedestrian injuries and deaths.
“Of course the cyclist is always the vulnerable party, and we always tend to favour the vulnerable party, the downtrodden...When you hit something that's 50 tonne, the outcome can be rather nasty," he said.
"That's why I struggle with the Dutch thing of strict liability. It's irrespective of responsibility and actions. The motorised party is always the villain, and I struggle with that in principle," he said.
However, if the motorist is always considered the villain, it might also result in a whole lot less pedestrian and cyclist injuries and deaths.