Man 50 per cent responsible for crash with fellow cyclist

About this case:

• Citation:
  [2024] CSOH 39
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

Nigel Dick, 54, and Joseph Merrick, 66, collided at the junction of NCR7 and NCR75 between Linwood and Johnstone in August 2019. A four-day diet of proof was fixed to determine who was at fault in causing the accident.

The case was heard by Lord Sandison in the Outer House of the Court of Session. Mackay KC and Hovey, advocate, appeared for the pursuer and Brownlee, advocate, for the defender.

Vivid and consistent memory

The pursuer’s case was that as he approached the junction at around 5:30pm on 26 August 2019, he could see that the way onto the NCR7 was clear. Another cyclist, witness William Howard, was visible a good distance away from the junction. As he made the turn, the defender’s cycle emerged from behind Mr Howard in order to overtake him. As the two cycles converged, the pursuer expected the defender to move back towards his right-hand side but instead he steered to the left, which caused the two to collide.

As a result of injuries to his chest sustained in the accident, the pursuer’s right lung collapsed and he was told afterwards by paramedics that his heart had stopped. He had still not recovered entirely from the accident and was not able to ride his bicycle again. Following reconstructions of the accident it was estimated that he was travelling at a normal speed for taking the bend.

In his evidence, the defender stated that he had been keeping to the left side of the path when the pursuer suddenly emerged from the junction and came straight into him. He believed he had the right of way at the point of the accident. The defender used an app, Strava, to track his cycling journeys that put his speed at around 20mph at the time of the collision.

It was conceded that the pursuer was partially at fault, with the question for the court being the just and equitable apportionment of blame between the parties. It was submitted that if the court accepted the pursuer’s account, this would result in a finding of 25 per cent blame to him and 75 per cent to the defender. While the pursuer’s memory of post-accident events was understandably poor, his memory of the accident itself was vivid and consistent with that of Mr Howard.

Counsel for the defender submitted that decree of absolvitor should be granted, or failing that a finding of 90 per cent contributory negligence should be made. There was no dubiety in the defender’s recollection of events. The pursuer was the one turning into a live lane of traffic, and it was his duty to ensure it was safe to emerge.

Neither had priority

In his decision, Lord Sandison said of the parties’ evidence: “I found the evidence of both Mr Dick and Mr Merrick to be credible. Each was doing his best to recount the events surrounding the collision truthfully. The fact that their two versions of events differ so significantly from each other means that at least one of them cannot be reliable.”

He continued: “Mr Dick’s reliability was criticised on account of the effect on his memory of the injuries he suffered, but he was clear that he could remember the events leading up to the accident (if not those occurring afterwards) quite vividly, and I saw no reason to doubt that. Mr Merrick was criticised as being dogmatic and his evidence about things that happened in an instant as unrealistic, but I do not accept that.”

In determining which version of events to accept, he said: “The key piece of evidence as to the mechanism of the collision is the clear opinion of both [expert witnesses] that the lack of damage to the wheels of either bicycle is inconsistent with Mr Dick’s bicycle having impacted that of Mr Merrick at anything like 45 degrees. That opinion was based on the extensive and uniform experience of both experts and is readily comprehensible.”

He went on to say: “It must follow that the collision was either collinear, or else very nearly so. That in turn implies that Mr Dick had either completed, or almost completed, his turn onto the NCR7 when the collision occurred and that, at least in broad terms, his account of the mechanism of the collision is to be preferred to that of Mr Merrick, although it is easy to see how Mr Merrick could mistakenly have perceived what happened from his point of view and given how quickly it occurred.”

Lord Sandison concluded on apportionment: “I do not find it possible to conclude that the fault of either contributed more to the causation of the accident and its consequences than the fault of the other, or that one was more blameworthy than the other. Each was travelling at about twice the safe speed for him, and each completely failed, for no good reason, to take the steps reasonably necessary to observe the presence of the other until the collision was inevitable. Neither had any priority over the other, and the responsibility to take reasonable care for the safety of himself and others was equally incumbent on each.”

Accordingly, the pursuer was held to be 50 per cent responsible for his own loss. The case was continued to an assessment of quantum of damages.