From: Brimstone on 7 Jul 2008 11:03
Ekul Namsob wrote:
> You should answer the question in order to demonstrate that, as a
> cycling instructor, Tom should know the answer.
What wonderfully perverse logic. Well done.
From: Just zis Guy, you know? on 7 Jul 2008 11:15
On Mon, 7 Jul 2008 15:52:33 +0100,
notmyaddress.1.ekulnamsob(a)wronghead.com (Ekul Namsob) said in
>You should answer the question in order to demonstrate that, as a
>cycling instructor, Tom should know the answer.
Silly boy, it's perfectly obvious.
According to surveys, most drivers have substantially above average
ability, but most /other/ drivers have substantially /below/ average
ability. So a driving instructor must combine both God-like powers
and the certain knowledge that every other driver on the road is
markedly inferior so will behave like a numpty.
May contain traces of irony. Contents liable to settle after posting.
85% of helmet statistics are made up, 69% of them at CHS, Puget Sound
From: Sniper8052 on 7 Jul 2008 12:45
On 3 Jul, 19:28, Tom Crispin <kije.rem...(a)this.bit.freeuk.com.munge>
> Some of you may recall that on 30 April 2007 I was knocked off my
> bicycle by a White Van Driver rurning right to reach a parking bay on
> the right side of the road. At the time the traffic was either slow
> moving or stationary and I was overtaking on the right, and well out
> into the right lane of the road which was clear of oncoming traffic.
> The van driver did not indicate or did not indicate at a time that I
> had any chance of seeing prior to pulling diagonally across the road
> to reach the parking bay, the right front side of his van hitting me
> from behind.
> I suffered an acromioclavicular shoulder separation and a hard bump to
> the head.
> I have been offered £5,100 settlement with a 20% v 80% liability -
> meaning I would receive just £1,020, and admit that I was 80% to blame
> for the accident. I have rejected that offer.
> My no win - no fee solicitors have suggested that I give a counter
> offer of £5,100 with a 05% v 95% liability - meaning I would receive
> £4,845, and admit that I was 5% to blame for the accident.
> Should I give that counter offer, or should I still go for 100%?
> The difference for 5% of my pride and the possibility of a hassle free
> settlement is worth £255.
> It is worth considerably more than that to my no win - no fee
> The no win - no fee barrister says the following (highlights only):
> - On the basis of the written evidence in my opinion Mr Crispin has a
> very good (70%) claim that the accident was entirely caused by the
> negligence of the Defendent.
> - Mr Crispin's evidence is supported by the witness evidence of [NC].
> Although Mrs [C] knows Mr Crispin [she is the mother of a pupil in my
> class] the court would likely find her an independent witness and
> would likely accept her evidence.
> - Mr Crispin's account of the accident is clear and persuasive, he
> would likely make an excellent witness in court.
> - It is clear from Davis V Schrogin, as well as rule 67 of the highway
> code, that cyclists are permitted to overtake queuing traffic.
> - Rule 204 of the HC emphisises that care should be taken in relation
> to vulnerable road users.
> - Mr Crispin was not, in my view, cycling in a way to justify a
> finding of contributary negligence. In particular he was not cycling
> excessively quickly nor did he ignore a signal from the Defendent. The
> court would also likely observe that the accident did not occur at a
> - Mr Crispin's witness statement must contain all the information
> contained within his replies to the Defence. It is rare that a party
> provides such an [sic] well-reasoned response to another party's case
> and although there is technically irrelevant material within the
> responses [lol] this is clearly Mr Crispin's own well-researched
If you go to court this will be a normal civil claim as the sums
involved are higher than the maximum £1000 for the quick route. The
rules here are that if the judge finds in your favour and the amount
he awards is less than the amount offered in settlement then you will
have to pay costs for the other side. This seems unlikely in this
case so rejecting the offer outright in favour of a seeing them in
court unless they can come up with a proper offer is not a high risk.
Seeing them in court will take another year at least, possibly longer
but they will try to bargain before then and will be subject to
direction from the court clerk as to compulsory timing. They will
bank on you having a need for the cash or tiring of the effort as they
have a disproportionate power in their favour; it costs them little or
nothing to prevaricate. If you have a good case, which it appears you
have, I would hold out for the full amount or take the advice of your
solicitor. Looking at your picture the driver failed to take
effective observation and is fully liable. As regards Powell v Moody
(1966) I refer you to Davis Vs Schrogin (2006) which supersedes...
1. LORD JUSTICE HUGHES: This is a defendant's appeal in a running down
action. The judge held him solely to blame for the accident. His
contention is that there should have been a finding of some measure of
contributory negligence. The accident occurred on the main A40 road in
Oxfordshire on a long straight section where there is one lane each
way. Both the claimant and the defendant were travelling westwards.
The defendant was in a largish saloon car trapped in a substantial
traffic jam with cars in a queue about a half a mile, or perhaps more,
long. As with many such queues, it was either stationary or inching
forward. The claimant was riding a motorcycle in the same direction.
Because there was nothing at all oncoming in the eastbound lane, and
because the road was straight with excellent visibility for half a
mile or so, the claimant was able to overtake the stationary queue.
The defendant decided to get out of the queue by executing a U-turn
and going back the way he had come. As he emerged from the queue in
the course of that U-turn there was a collision between his car, by
now roughly broadside across the eastbound lane, and the claimant's
motorcycle. It was a nasty collision and the claimant sustained
serious injuries. This all happened at about 6.30 pm on a summer
evening. The weather was fine, the road was dry, the visibility was
excellent for both drivers some hundreds of yards in each direction
from the point of impact.
2. The judge's primary findings of fact were these:
1) both drivers were responsible, respectable people. The claimant was
a careful and experienced rider, doing a journey that he did
regularly. The defendant, who was a visitor from abroad, was a very
experienced driver, both in his home in the United States and also in
Europe, and as the judge said no doubt ordinarily an exemplary driver.
2) The claimant on his motorcycle was well out into the oncoming lane
about half or two thirds of the way across it from the central white
line. That was so as to make himself as visible as possible. He had
his headlight on, dipped, his right hand indicator was flashing and he
was travelling at something between 40 and 45 miles per hour. He had
been in that position for about half a mile. He was not weaving in and
out of the traffic.
3) The stationary queue then nudged forward about one or one-and-a-
third car lengths. The defendant moved over towards the left hand
kerb. He then pulled out to make his U-turn.
4) The claimant's motorcycle was there to be seen when the defendant
did that, but the defendant did not see it until the collision. The
defendant was looking the wrong way. He was concentrating on looking
to his left westwards along the road. The judge's finding to that
effect was squarely based on the defendant's own evidence that that is
what he was doing.
5) At the time when the claimant first spotted the defendant moving
leftwards towards the kerb preparatory, as it turned out, to a U-turn,
the claimant was no more than five cars' length back from the point of
6) The defendant had become impatient. He was on the wrong road for
his destination and stuck in a traffic jam to boot. He had said in
evidence in a single answer that he was possibly a bit annoyed. The
judge found that he was sure that it was significantly more than that
and that that was a significant factor in explaining the error that
the defendant had made.
3. On those facts the judge found first that the defendant was
negligent in making his U-turn without looking properly, or indeed at
all, to his right. There is not and cannot be any challenge to that
finding. Indeed; that the defendant was negligent in that way was
conceded at the trial. The judge found that the claimant was not to
blame. He held that there was nothing he could have done to avoid the
accident. He had indicated in the course of argument that his first
reaction to the evidence was that the claimant was perhaps travelling
faster than he should have been, but after argument and further
consideration he concluded that that was not a legitimate criticism.
But in any event he held that even if the claimant had been travelling
appreciably more slowly than he was, it would have made no difference,
because he had been right on top of the point of accident when the
defendant first did anything to excite anxiety. In other words the
judge held that even had there been any excess speed, it was not
causative of the collision.
4. Ms Perry has helpfully taken us to short notes of two cases noted
in Bingham's Motor Claims Cases. It does not seem to me that
authorities on a point such as this are in the end of great
assistance. That in different situations an overtaking driver may well
be guilty of contributory negligence is something about which there
can be no debate. But it does not follow that every such driver is.
The cases to which we have been referred are both cases in which this
court said no more than that there were no grounds to interfere with
the findings of the judge below.
5. Everything depends in those cases and depends in this case on the
point at which the overtaking driver was alerted or should have been
alerted to the fact that there was any danger ahead. With two
exceptions, the appellant defendant does not challenge the judge's
primary findings of fact. In two respects however, he does. We should
remind ourselves, as it seems to me, that the judge heard the evidence
and saw the witnesses. He saw not only what they said but how they
said it, and it seems to me that we should be very slow in this court
to attempt to second guess his findings as to primary fact.
6. The challenge to the primary findings comes to the last two
findings that I have listed, namely first that the defendant acted
when annoyed or irritated and secondly, to the finding that the
claimant had no time to react to what was happening ahead of him. As
to the first, it seems to me that the judge was entitled to find that
annoyance was a significant factor in causing the defendant to make
his U-turn and to make it without looking in one direction at all. It
is said that that finding is inconsistent with the evidence before the
judge. In particular it is said that the evidence of an independent
witness, Mr Howard, to the effect that the defendant emerged very
slowly, indeed barely moving, is inconsistent with it. It was, as it
seems to me, for the judge to assess which parts of whose evidence he
accepted. But in any event the defendant did not have to move rapidly
in order to present a sudden and unexpected obstacle to the claimant.
To the extent that it is suggested that a second witness, Mrs Waters,
whose short statement to the police officer was before the judge
though she did not give evidence, supported the suggestion that the
defendant was moving very slowly, I for my part cannot see that that
can be related to what she says. Indeed, she said it all happened very
7. As to the critical finding that the claimant had no time to react,
the defendant's case was put to the judge on the basis of the
defendant's own evidence that there elapsed five to ten seconds
between the defendant's movement to his near side and the collision.
It is no doubt true that if that time had elapsed, that would have
given the claimant something like 100 or 200 yards in which to react.
It is worth observing that the defendant had not recalled moving to
his near side until he saw the claimant's statement to that effect.
That might alone be thought to cast some doubt on any estimate that he
made of the time elapsed after such movement, but in any event if
there had been that kind of time for the claimant to react, it would
have meant that for most of 100 or 200 yards the defendant was to be
seen emerging and that the claimant had simply ridden straight into
him. The judge was plainly right, as it seems to me, to say that that
was simply not plausible.
8. The appellant's written grounds of appeal begin with the contention
that the judge apparently accepted the evidence that the claimant had
those five or ten seconds in which to react. The judge's findings make
it perfectly clear that he did not. He recited the defendant's
evidence to that effect, but his critical finding was that the
claimant was only about five car lengths away when he saw the first
leftwards movement of the defendant, followed immediately by the U-
turn. It is perfectly plain that the judge did not accept the five or
ten-second time lapse.
9. Here in this court the appellant defendant's case has been
presented in a more refined form. Here the contention has become that
the claimant must have been further back than five cars' length,
because at 40 miles per hour he would cover that kind of distance, say
about 20 yards, in about a second, and the U-turn manoeuvre, it is
suggested, must have taken longer than that. That is an argument or a
proposition which was not presented to the trial judge. Running down
arithmetic is notoriously dangerous. This car only needed to move a
very short distance in order to block something like two thirds, or
perhaps a little more, of the lane in which the claimant motorcyclist
10. It seems to me that it does not follow that when the claimant saw
one car in a queue of traffic which he was overtaking nudge to the
nearside, he should necessarily be expected to anticipate that what it
was going to do was not only a U-turn which would completely block his
path, but also that it would be done without the driver pausing to
look his way. It is true that the claimant, with a candour that he
shared with the defendant in evidence, said himself that he had seen
the movement towards the nearside and he went on to say this:
"At that point alarm bells were ringing, but it was so instantaneous
after that that I didn't have time to react to anything."
He added that he had thought that the car driver might be doing
something different to what the rest of the traffic was continuing to
11. It does not, as it seems to me, follow from that that he was at
that point sufficiently on enquiry of the prospect of a U-turn. But in
any event on the judge's primary findings, whether the estimate of
five car lengths is a mathematically precise one or not, the claimant
was right on top of the scene and the point of impact when the
defendant emerged from the line of traffic without looking. There is,
as it seems to me, simply no basis for challenging the judge's finding
upon causation. Once it is held, as the judge was plainly entitled to
hold, that the claimant was so close to the point of impact that he
could not avoid the collision, then there is simply no basis for any
finding of contributory negligence.
12. I would for those reasons uphold the judge's finding and dismiss
13. LORD JUSTICE HOOPER: I agree
14. LORD JUSTICE AULD: I also agree that the appeal should be
dismissed for the reasons given by my Lord, Lord Justice Hughes.
Order: Appeal dismissed with costs.
3 Law lords all agreeing with the motorcyclist, what more ammunition
do you need?
From: Nick Finnigan on 7 Jul 2008 16:08
Alex Heney wrote:
> On Sun, 06 Jul 2008 10:46:30 +0100, Nick Finnigan <nix(a)genie.co.uk>
>>>%firstname.lastname@example.org (Steve Firth) wrote in
>>>>Perhaps getting a clue would help you. The prohibition in the HC is on
>>>>opening the door and hitting someone or something with the door. If
>>>>the door has been opened and someone rides or drives into it then they
>>>>are in the wrong.
>>>>The stupidity of cyclists seems to be without limit. Perhaps they
>>>>should be made to sit a test before being allowed on the roads?
>>>Actually much as I like to laugh when a cyclist gets taken out as the
>>>result of his own folly (especially if there's blood, broken bones and a
>>>wrecked cycle) there is actually an offence of "Opening a door to the
>>>danger of road users". Don't ask me to quote act and section it's to
>>>late and I can't be arsed but it's there none the less.
>> Construction and Use regulations.
>>A person shall not open, or cause or permit to be opened, any door of a
>>vehicle on a road so as to injure or endanger anyone.
>> So you don't have to hit the cyclist, causing him to stop would count.
>>Still unclear as to whether a door left open would be dangerous.
> I don't think causing him to stop would count, provided he reasonably
> could do so.
> It is only endangering him if it is done at such time that the other
> road user cannot reasonably and safely take avoiding action.
If the act of opening the door (rather than leaving it open) causes
him to stop, then the other road user can not reasonably and safely take
From: Nick Finnigan on 7 Jul 2008 16:23
Alex Heney wrote:
> On Sun, 06 Jul 2008 15:41:03 +0100, Nick Finnigan <nix(a)genie.co.uk>
>>>Nick Finnigan wrote:
>>>>>Actually much as I like to laugh when a cyclist gets taken out as the
>>>>>result of his own folly (especially if there's blood, broken bones and a
>>>>>wrecked cycle) there is actually an offence of "Opening a door to the
>>>>>danger of road users". Don't ask me to quote act and section it's to
>>>>>late and I can't be arsed but it's there none the less.
>>>> Construction and Use regulations.
>>>>A person shall not open, or cause or permit to be opened, any door of
>>>>a vehicle on a road so as to injure or endanger anyone.
>>>>So you don't have to hit the cyclist, causing him to stop would count.
>>>"Count" as what?
>> Count as an a contravention of the regulation.
>>>It isn't an injury. It isn't an endangerment.
>> Why else would a cyclist stop, other than being endangered?
> Because he has come to the end of his journey?
Yes, but nobody else would cause him to do that.
> Because he is at a "stop" sign, or a red traffic light?
... only ...
> Because if he continued he *would* be endangered?
Which is practically indistinguishable from being endangered.
> It isn't "endangering" somebody to do something which causes them to
> stop, provided it only causes them to do so in a safe and reasonably
Which, as I now see you have explained, is not what would happen when
a door is opened so as to cause a cyclist to stop.