By Vilma Vodanovic
Summary of the decision in Elson v Stilgoe  EWCA Civ 193 (30.3.2017)
One cold, dull January morning (at about 8am) C and a friend, R, were riding their bicycles on a single carriageway road. They were both overtaking a stationary line of traffic on their nearside. There was an area of the road which had flooded and C cycled onto the opposing carriageway in an attempt to avoid a large puddle. In doing so, he collided with D’s car travelling on the opposite side of road. R had managed to cycle through the puddle and avoided going onto the opposing carriageway.
C lost at first instance. HHJ Mithani QC sitting in the County Court in Walsall found that D had been driving properly, not at speed, and C had in fact veered over onto the opposing carriageway not allowing D any opportunity to react. He also found that R and C had been cycling alongside each other rather than in single file as had been suggested by some witnesses. The Judge found that C’s clothing was inappropriate for the conditions of the day, he had no cycling gear and no lamp on. Had some liability attached to D, the Judge said he would have found contributory negligence.
The above decision was appealed based on two grounds: firstly, in relation to the finding that C and R had cycled side by side (there was evidence to say they had travelled in single file); and secondly, that D had ample opportunity to observe C on D’s side of the road and therefore should have taken avoiding action either by moving to D’s left or stopping or slowing down.
The first ground was in reality irrelevant because it impacted on the second ground in any event and if there was no criticism regarding the second ground then that was the end of the matter.
The Court of Appeal was of the view that C’s argument that D should have seen him and taken avoiding action was on the particular circumstances of the case not sustainable. The Judge had found that D was travelling perfectly properly on his side of the road and at a safe speed. He also found that C had moved onto D’s side of the road before the puddle and therefore would have himself had time to stop. But most importantly, the Judge found that C had ‘veered’ onto the other side of the road which amounted to a momentary error of judgment. There was no reason for him to have done so as R had managed to do it without having to veer onto the other side of the road. D was not required, in those circumstances, to anticipate that C would suddenly move into his path and there was no reason for D to have stopped or moved over to his left. C was not on D’s side of the road for any length of time sufficient for him to have been observed by D in a way which required D to take some evasive action.
The appeal was dismissed.
It is quite clear in this case that on the evidence C’s movement was momentary and not something that D had time to observe. Had the factual situation been different of course in that R had had to do the same thing because the puddle was causing more inconvenience to road users than it in fact had done, and had both R and C been in D’s view for longer whilst trying to negotiate this puddle, then the chances are that the decision would have been different. However, even if some primary liability could have been established, the chances are that there would have been a finding of a significant degree of contributory negligence on C’s part. Indeed, C accepted even on the facts as they stood that a finding of 35% contributory negligence would have been reasonable, but of course the Court of Appeal declined to consider this as there was no finding of primary liability in the first place.