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Published 10 September 2020
This alert concerns a sad case involving an accident which resulted in the death of a cyclist of great experience which demonstrates all too clearly that anyone, no matter how skilled, can make tragic mistakes.
In Gresty v Wood and Aviva Insurance Limited Mr. Jonathan Grace (Deans Court Chambers) instructed by DAC Beachcroft successfully defended at a trial conducted remotely a claim brought by the widow of the deceased cyclist. The accident occurred when the late Mr. Gresty, aged 71, described by the judge as a “keen and experience cyclist“ who “had been cycling for all of his adult life” was in collision with a vehicle driven by the defendant.
In short, the defendant was driving along a road when the deceased emerged from a side road on the car’s nearside and there was a collision. The deceased sadly passed away from accident related sequelae a little more than 2 years and 9 months after the collision. In his judgment His Honour Judge Platts said:
Although normally a proficient and careful cyclist, there is no doubt that on this occasion Mr Gresty uncharacteristically rode into the junction without looking or stopping and it is rightly conceded on the claimant's behalf that he was in part to blame for this unfortunate collision.
It was argued by the claimant that the defendant was partially to blame by:
The court was to hear oral evidence from three witnesses of the accident, a statement from a police officer who attended the scene and two accident reconstruction experts, one instructed by each party.
The defendant’s position was, in effect, that the deceased had come into view too late for him to avoid a collision and that he was not at fault.
The experts disagreed over a number of matters. HHJ Platts said:
I heard from both Mr Sorton and Mr Davey. Their evidence is of assistance in that, when taken with the lay evidence, it helps the court to make a judgment as to what is likely to have occurred. However, for reasons to which I will come this is not a case where the expert evidence is determinative. Nor is it a case where I prefer one expert's approach or opinion entirely to the exclusion of the other.
These comments bring home the need to take care when evaluating accident reconstruction evidence and not to elevate it to an unjustifiable level. Accident reconstruction evidence will be based on a number of variables which often cannot be determined precisely and it is therefore important to view it as a piece of the evidential jigsaw: it will frequently be non-determinative.
In a meticulous, thoughtful and carefully weighed decision, HHJ Platts considered the expert evidence, the variables that resulted in a number of the differences between them and also the lay evidence in reaching his judgment. In reaching his carefully balanced conclusions and acknowledging the type of issues that arise in cases of this kind, the judge said:
A witness' recollection of the detail of speeds and distances involved in the lead up to a traumatic incident such as this is often unreliable - but that does not necessarily lead to the conclusion that the overall general impression of that witness is unreliable. There are many cases, and I find that this is one, where it is the overall impression that has probably informed the recollection of detail. I am satisfied that the recollection of Mr Wood probably stems from the point at which he took action. At that point he was probably close enough to the junction and still moving to think that he was "virtually on the junction". The same applies to his wife. At that point Mr Gresty was probably closing in on the give way lines. Although I find that he in fact saw Mr Gresty earlier, that is not imprinted on his memory in view of the shocking event that subsequently occurred.
The judge went on to consider whether the defendant had, in the situation that was unfolding, taken the appropriate action. The judge’s conclusions reflect the difficulties faced by drivers and recognise impossibility of demanding a counsel of perfection. Citing Laws LJ in Ahanonu -v- South East London and Kent Bus Company (2008) EWCA Civ. 274 HHJ Platts stated that the parties should not "evaluate the standard of care owed by the Defendant by reference to fine considerations elicited in the leisure of the court room, perhaps with the liberal use of hindsight"
The judge stated:
…even taking the claimant's case at its highest, I am not persuaded that Mr Wood's driving was negligent. On any view he was presented with an unexpected hazard. Having seen Mr Gresty he had to make an immediate assessment of whether the bicycle was going to stop at the give way line, and if not what the consequence might be. The consequence was clearly that Mr Gresty would come into Mr Wood's line of travel in the southbound lane travelling at an angle towards his vehicle. The natural instinct of any driver faced with that situation would be to swerve to the right to try to avoid him. That is what Mr Wood did. His reaction was instinctive and in my judgment would have been the reaction of most drivers faced with a vehicle or a bicycle emerging from the nearside in this way. In my judgment he had insufficient time to weigh the situation so as to make a decision as to whether to brake at the same time.
The judge found it telling that the independent lay witness said that she would have done exactly the same as the defendant faced with the same situation. The judge continued:
Whilst the evidence shows that it is possible that the accident might have been avoided even if Mr Wood had braked earlier, I am not persuaded that would probably have been the case. There are too may assumptions and variables to enable me to be satisfied to the required standard that this accident would have been avoided had Mr Wood acted differently.
Understandably and quite properly, much consideration is being given in the world at large to protecting the vulnerable road user, not least because so many have taken up or returned to cycling during the COVID-19 crisis and have little or no experience on the roads. This case illustrates, even for an experienced cyclist with many years of riding under their belts, the tragic and catastrophic effects of a lapse of concentration.
It is all too easy to blame a motorist who is in collision with a cyclist but it is rarely that simple. From a defendant’s perspective it is pleasing to see the court taking such a careful and analytical approach, weighing all the evidence thoughtfully, acknowledging the evidential difficulties that inevitably arise in such cases and coming to a balanced decision.
Our complex injury team deal with cases such as this on a regular basis. For more information or advice, please contact one of our experts.
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