Common Law

Common Law

Our common law legal system is based on case law which has developed through decisions of the Court over centuries.

The common law relating to road traffic accidents, in particular cycling accidents, is vibrant and fast moving. With increased traffic on our roads, changing social attitudes and a constant demand for improved safety, the law is constantly developing.

The general principles of negligence apply to all road users including cyclists. There is a duty on road users to observe reasonable skill and care towards other users who could reasonably be affected by their actions.

The basic elements to any action for negligence are a duty of care to the injured person, and a breach of that duty resulting in injury, loss or damage. The standard of care is that of an ordinary skilful average driver.

In a civil claim for damages liability can be apportioned between the parties. Although a road user may be partly to blame for an accident he will still have a valid claim which will be reduced on a percentage basis to reflect his share of the blame. This is called contributory negligence.

Most accidents on our roads arise from negligence usually involving failing to keep a proper lookout, failing to control a vehicle, failing to concentrate or driving too fast.

Although at first glance the cause of an accident may appear straight forward in practice establishing liability can be very difficult. The Highway Code, reported case law and statutes provide useful guidance but every accident is fact sensitive and there is often conflicting evidence, causation disputes and allegations of contributory negligence.

The evolution of our common law is perfectly illustrated by recent case law in relation to the wearing of cycle helmets. There is currently no legal duty to wear a helmet despite Rule 59 of the Highway Code which states that cyclists should use helmets. However a failure to wear a helmet can mean a finding of contributory negligence which can result in a reduction to a claim for damages where the injury would have been avoided or reduced if a helmet had been used.

There have been several cases where the Courts have considered the issue of whether a cyclist was at fault for not wearing a helmet and whether his damages should be reduced.

In A (a child) –v- Shorrock (2001) a 14 year old cyclists claim was not reduced as a result of his failure to wear a helmet on the grounds that there was no statutory requirement to do so and he had not been engaged in a particularly hazardous form of cycling. In Smith –v- Finch (2009) the Court held that the wearing of a helmet would not have made a difference to the cyclist’s injuries and therefore there was no reduction. However in Reynolds –v- Strutt & Parker LLP (2011) the Court held that a cyclist was at fault for not wearing a helmet and that his failure to do so made a difference and his damages were reduced.

With issues such as helmets, clothing and lights, potholes and spillages, pavements and cycle lanes, children, pedestrians and animals, open doors and parked vehicles, group riding and road rage the law will continue to evolve and the application of the law to a cycling accident and the determination of liability will remain a difficult legal issue.