Rickson v Bhakar

Contributory negligence may be established where a road user had a fair opportunity to observe a hazard and take reasonable evasive action, and the evidence shows that modest braking or deceleration would have avoided the collision. In an emergency, a person is not negligent merely because one of two available responses proves less effective. A finding requires the court to infer, on the balance of probabilities, that braking was the only reasonable response in circumstances of which the claimant was, or should have been, aware. Responsibility must then be apportioned justly and equitably according to the parties’ relative culpability.

The claimant suffered catastrophic spinal injuries when his bicycle collided with the defendant’s van as the defendant crossed a dual carriageway into a side road. The defendant admitted negligence. The issue at trial was whether the claimant’s failure to observe the van and brake amounted to contributory negligence.

The court considered the road layout, visibility, vehicle and bicycle speeds, the time available for reaction, the claimant’s experience, and his late swerve. It also considered whether the circumstances constituted an emergency in which the claimant’s choice between braking and swerving could not fairly be criticised.

1. The defendant succeeded in establishing contributory negligence. The claimant had approximately four seconds, and sufficient distance, to observe the van beginning to cross the carriageway. A reasonable cyclist keeping a proper lookout could have stopped or decelerated sufficiently to allow the van to pass.
2. The court found that the claimant was an experienced cyclist who knew the junction and its risks. There was no evidential basis for deciding precisely why he failed to see the van. It was sufficient that he had an effective opportunity to observe and respond, but did not decelerate.
3. The agony of the moment principle did not prevent the finding. A person responding to danger created by another is not negligent merely because one of two available options proves less effective. However, contributory negligence may be found where, on the balance of probabilities, the only reasonable response to a danger of which the claimant was, or should have been, aware was to brake. The claimant’s swerve was a last-minute reaction after the earlier opportunity to brake had been missed.
4. The claimant’s culpability was substantially less than the defendant’s. The defendant created the hazard and had ample opportunity to observe approaching traffic. The claimant failed to observe or make a reasonable response when he had time and space to do so.
5. Assessing the contribution in the round, and applying what was just and equitable in the circumstances, the court assessed contributory negligence at 20 per cent. The defendant therefore succeeded to that extent.