26 August 2021

As a motorist, requiring a driver’s licence, knowledge of the Highway Code and compulsory insurance and also as a cyclist, requiring no training, licence or insurance, it is interesting to ruminate on the shared use of roads by cyclists and motorists, given that the consultation period recently ended in relation to proposals to revise the Highway Code. One of the changes being that the introduction will be updated to include a ‘hierarchy of road users’, with those road users who can cause the greatest harm (vehicle users) having the greatest responsibility to reduce danger to vulnerable road users, including cyclists.

The onus, as we all know, is on motorists to take additional care when a cyclist is established on the road ahead, and a wide berth afforded when overtaking. However, other situations may not be quite so clear cut.

Against the backdrop of increasing numbers of cyclists on the roads (a 47% rise according to Cycling Scotland during the period March 2020 – March 2021, compared with the previous year), the likely inevitable rise in incidents in years to come, and the outcome of the consultation on the Highway Code, it appears useful to remind ourselves that, whatever perceptions cyclists may have, they cannot in all circumstances expect liability to attach to the motorist where an injury has occurred. The duty on the part of the driver of a vehicle is to take reasonable care, rather than guarantee the safety of others. An examination of what constitutes reasonable care can be found in the recent decision of the Sheriff Appeal Court in the case of Gordon Wallace v David Roache and Liverpool Victoria, 2021 (see here) which may give some comfort to drivers (and their insurers).

The facts of the case

In Wallace, the pursuer was a cyclist. He appealed against the first instance decision that he had failed to establish fault and negligence on the part of Mr Roache, the motorist. Absolvitor had been granted against both defenders/respondents. Mr Wallace was an experienced cyclist and had been riding on the National Cycle Network Cycle Route which runs adjacent to the A91. There is an access road to Balgove Golf Course, which provided a temporary car park for visitors to the Senior Open Championship. Mr Wallace had cycled the route approximately 20 – 30 times, although he was unaware that the Championship was taking place. The access road cuts across the cycle path. Gates which normally were closed were open. There was a prominent give way sign directed against cyclists, the access road taking priority over the cycle path. A hedge restricted visibility of motorists approaching the cycle path. Mr Wallace was established in the middle of the cycle path, not the left-hand lane.

The pursuer approached the access road at a speed of about 20mph. He did not look to the right (in the direction of gates). He did not brake or reduce his speed at any point on the approach to the access road and he ignored the give way sign. Mr Roache was emerging from the temporary car park at a speed of no more than 15 mph. He was looking out for cyclists and continued to drive forward to gain a line of sight at which point the collision occurred. The car had not reached the midpoint of the cycle path at the point of the collision.

Grounds of appeal

It was argued that the Sheriff erred in fact and law in finding that Mr Roache took reasonable care when emerging and, in so doing, the Sheriff failed to take account of relevant factors. The standard of care ought to have been measured against the usual factors; foreseeability, magnitude of risk, likelihood of a collision and the potential severity of injuries. The pursuer’s position included an argument that Mr Roache ought to have been aware that cyclists were likely to be on the path and that it was foreseeable that cyclists might make a mistake and ignore the give way sign. Accordingly, Mr Roache should have brought his car to a complete stop, or hesitated briefly, or edged forward, to warn those on the cycle path of the presence of the car. It was also argued that the Sheriff ought to have assessed contributory negligence and that a reasonable apportionment would have been 70% against Mr Roache and 30% against Mr Wallace.

The decision

The Sheriff Appeal Court stated that the starting point in such circumstances is whether the defender/respondent was taking reasonable care which, as applied here, means, was Mr Roache taking sufficient precautions as he emerged from the access road, to avoid a collision?

Mr Wallace’s expert was of the opinion that a collision was inevitable, whether Mr Roache had been driving at 5mph or 15mph. Notably, the pursuer’s collision expert was unable to state that, had Mr Roache stopped and edged out incrementally, a collision would not have occurred.

In refusing the appeal, the Court stated that the Sheriff at first instance had regard to the correct test and considered whether Mr Roache acted with reasonable care in the circumstances. The Sheriff at first instance concluded that the fundamental cause of the accident was the negligent act of failing to comply with the road sign by giving way and travelling at a speed from which he could not stop. The Sheriff Appeal Court agreed with this reasoning. It agreed that the pursuer’s argument, that Mr Roache ought to have edged out incrementally, attempted to impose a higher standard of care than the law requires. In other words, a ‘counsel of perfection’.

Cases of this type are of course fact sensitive. Had Mr Roache been travelling at a higher speed and not looking out for cyclists on the cycle path, the outcome might have been different. While the number of cyclists using roads is bound to increase and collisions involving cyclists are likely to increase, it should not be assumed that the motorist is automatically at fault. Any admission of liability should only be made after careful consideration of the facts.

For more information, or to discuss any of the issues raised above, please contact:

Alistair Barbour, Associate & Solicitor Advocate: awb@bto.co.uk / 0141 221 8012