Cyclists don't matter?

geoffnelder
geoffnelder Posts: 165
edited March 2013 in Campaign
Sorry if this disgusting case is discussed elsewhere. A driver opens his darkened windowed door - cyclist hits the door, into a bus and killed. Jury clears driver - walks scot free. What is going on?
http://www.bbc.co.uk/news/uk-england-london-20725496

So sorry for the family.
webbie http://geoffnelder.com
Twit: http://twitter.com/geoffnelder

Comments

  • Pross
    Pross Posts: 43,463
    I don't think it is a case that cyclists don't matter more that the jury thought a man slaughter conviction was too big a penalty and there is nothing else suitable although I can't see why based on the legal definition and tests:-
    Gross Negligence Manslaughter
    This is where the death is a result of a grossly negligent (though otherwise lawful) act or omission on the part of the defendant. The law in respect of this has been clarified in the case of R v Adomako (1994) 3 All ER 79 where a four stage test for gross negligence manslaughter known as the Adomako Test was outlined by the House of Lords:

    The test involves the following stages:

    a) the existence of a duty of care to the deceased;
    b) a breach of that duty of care which;
    c) causes (or significantly contributes) to the death of the victim; and
    d) the breach should be characterised as gross negligence, and therefore a crime.

    There is no manslaughter by "Lawrence Recklessness", overruling R v Seymour (1983) 2 AC 493.

    The Duty of Care
    There is no "general" duty of care owed by one citizen to another (No "good Samaritan rule").

    A duty of care will arise from an act of a person where the requirements of foreseeability, proximity, fairness, justice and reasonableness establish such a duty (Donohue v Stevenson (1932) AC 582).

    Prosecutors should see Caparo Industries PLC v Dickman (1990) 2 AC 605 for the test if a duty of care existed.

    The duty can exist even where the deceased and the defendant were engaged in an unlawful activity together (R v Wacker (2003) 1 Cr App R 329; R v Willoughby (2004) ECWA Crim 3365.

    The duty can arise from a contract of employment (R v Pittwood (1902) 19 TLR 37).

    In addition there is the case of R (Rowley) v DPP (2003) EWHC Admin 693 where the Administrative Court referred to a fifth test, that 'criminal' involved an element of 'badness' - but note that the Adomako test is objective and the Crown need not prove the defendant's state of mind. The risk must be a serious and obvious risk of death, not merely serious injury: R v Misra and Srivastava [2005] 1 Cr App R 328.

    The Breach of the Duty of Care
    The ordinary law of negligence applies to these cases, in that those with an established duty of care, must act as a "reasonable person would do in their position". If they fail to do so they will have breached that duty. This is an objective test and will be based upon the defendant's position at the time of the breach.

    Therefore, if the defendant has acted within the range of what was generally accepted as being the standard practice (even if it is at the lower end) it will be difficult to describe such behaviour as falling far below the standard of a reasonable person in his position.

    An unqualified person is not to be judged at a lower standard than a qualified person. Therefore the lack of skill will not be a defence if the conduct is deemed negligent. If however, the defendant has particular skills and knowledge of a danger that the reasonable person would not have, his actions should be judged in the light of those skills or knowledge. This test is an objective test.

    It does not matter that the defendant did not appreciate the risk (the foreseeable risk of death) only that the risk would have been obvious to a reasonable person in the defendant's position. (R v DPP ex parte Jones 2000 CLR 858 and AG ref No: 2 of 1999 3 All ER 182.)

    The Grossness of the Breach
    It is for a jury to decide whether the defendant's conduct was so bad, in all the circumstances, as to amount to a criminal act or omission. In R v Misra and Srivastava [2005] 1 Cr App R 328, the court agreed with the direction by the judge that the term 'reprehensible' would be apt to describe the nature of the conduct.

    The bit I've highlighted would appear to be a clincher but I can only assume the jury decided the 'grossness' of the breach was insufficient. I think possibly the problem in cases like this is the jurors could imagine themselves doing the same thing and therefore they instinctively side with the defendant.
  • megilleland
    megilleland Posts: 786
    Taxi driver fined £35 after cyclist's death and reported here in the guardian today:

    Also a cyclist killed last week here in Herefordshire. Is there a national register of cycle deaths?
    The more you spend - the faster you go - the less you see.
  • iPip
    iPip Posts: 90
    Yet some guy who drove his 4x4 up a Welsh mountain goes to jail for almost 2years.
    http://www.bbc.co.uk/news/uk-wales-nort ... s-21087633
    Regards
    Pip

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  • geoffnelder
    geoffnelder Posts: 165
    At least today I was thanked by some motorists for helping push their vehicles out of snow. I had helmet, bright clobber and shorts. Good job I was hardcore and didn't wear my wife's tights today. ;)
    webbie http://geoffnelder.com
    Twit: http://twitter.com/geoffnelder
  • Pross
    Pross Posts: 43,463
    megilleland wrote:
    Taxi driver fined £35 after cyclist's death and reported here in the guardian today:

    Also a cyclist killed last week here in Herefordshire. Is there a national register of cycle deaths?

    The thing is we have to avoid jumping to conclusions that every accident is the motorists fault. That Leominster death has no details of how it happened and the police are looking for details.
  • smoggysteve
    smoggysteve Posts: 2,909
    What ever happened to DUTY OF CARE?
  • Pross
    Pross Posts: 43,463
    SmoggySteve wrote:
    What ever happened to DUTY OF CARE?

    You still have to prove liability and I believe it is a term only used in tort so would require a civil law suit.
  • smoggysteve
    smoggysteve Posts: 2,909
    If I were the family I would sue in that case.

    Liability wouldn't be too hard as he admitted opening the car door while sitting in a bus lane.
  • Pross
    Pross Posts: 43,463
    Ah, I thought you were referring to the other cases linked to in the thread. Yes, I agree but the driver's insurance company paying out a bit of compensation to the family is less likely to have a deterrent effect than a driver getting sent to prison unfortunately.
  • Zingzang
    Zingzang Posts: 196
    I for one would be fascinated to learn a bit more about cases in France, for example, where a cyclist has been found to have died owing to a motorist's actions, and find out what sort of verdicts and penalties were dished out.

    I could be wrong but I'd put good money on it that one of the reasons French motorists have more "respect" for cyclists is fear of the (more severe) penalties if they wipe you out. Maybe a comparative study could be undertaken by someone (preferably a UK pressure group) to highlight the differences.

    As for the matter of reasonable persons and awareness of risk, naturally a motorist's awareness of the risk his actions pose to cyclists will continue to be low, and such lack of awareness considered reasonable by the law, for as long as that awareness is dulled by the total absence on a motorist's horizon of potentially serious legal penalties for his actions.

    Making the penalties for killing cyclists more severe will sharpen the average motorist's awareness of cyclists more effectively than all your safety campaigns put together.
  • mrbubbaman
    mrbubbaman Posts: 171
    I've dealt with quite a few accident's involving cyclists, some fatal and on most occasions it's been the cyclists fault.
    Cyclists do matter, but some of them don't do themselves any favors
  • Zingzang
    Zingzang Posts: 196
    mrbubbaman wrote:
    I've dealt with quite a few accident's involving cyclists, some fatal and on most occasions it's been the cyclists fault.
    Cyclists do matter, but some of them don't do themselves any favors
    Your experience doesn't reflect the bigger picture; in fact quite the reverse (http://road.cc/content/news/12065-repor ... cent-cases). Prejudice is blind, though, after all.
  • mrbubbaman
    mrbubbaman Posts: 171
    Zingzang wrote:
    mrbubbaman wrote:
    I've dealt with quite a few accident's involving cyclists, some fatal and on most occasions it's been the cyclists fault.
    Cyclists do matter, but some of them don't do themselves any favors
    Your experience doesn't reflect the bigger picture; in fact quite the reverse (http://road.cc/content/news/12065-repor ... cent-cases). Prejudice is blind, though, after all.
    I can only go on my experience, which covers a period of 5 years
  • hstiles
    hstiles Posts: 414
    Following the news of Johnny Hoogerland sustaining serious injuries after being struck by a car during training, I thought I'd check Google for statistics

    http://en.wikipedia.org/wiki/List_of_professional_cyclists_who_died_during_a_race#Deaths_during_training_or_another_reason_related_to_cycling

    With the exception of a few deaths related to congenital conditions and possible PED related deaths, everything else was the result of a collision with a vehicle.
  • Pross
    Pross Posts: 43,463
    There's a link to the full report referred to in the article above if anyone's interested. I would say it backs up the accident statistics that I have had to regularly review over the past 10 - 15 years. There's definitely some (a high proportion?) bad cyclists out there but it seems that it is the well behaved cyclists that end up getting killed or seriously injured.
  • doublem_1
    doublem_1 Posts: 266
    Did the guy get anything for having his front windows tinted? It's illegal. Bet he didn't.
  • mrbubbaman
    mrbubbaman Posts: 171
    doublem_1 wrote:
    Did the guy get anything for having his front windows tinted? It's illegal. Bet he didn't.

    Doesn't look like it as it was probably over the time limit for prosecuting the offence
  • mybreakfastconsisted
    mybreakfastconsisted Posts: 1,018
    mrbubbaman wrote:
    Zingzang wrote:
    mrbubbaman wrote:
    I've dealt with quite a few accident's involving cyclists, some fatal and on most occasions it's been the cyclists fault.
    Cyclists do matter, but some of them don't do themselves any favors
    Your experience doesn't reflect the bigger picture; in fact quite the reverse (http://road.cc/content/news/12065-repor ... cent-cases). Prejudice is blind, though, after all.
    I can only go on my experience, which covers a period of 5 years

    Which cases? What were the incidents, where in most cases you are claiming the cyclist was at fault?
  • mybreakfastconsisted
    mybreakfastconsisted Posts: 1,018
    Thought that would happen.
  • mrbubbaman
    mrbubbaman Posts: 171
    mybreakfastconsisted wrote:
    mrbubbaman wrote:
    Zingzang wrote:
    mrbubbaman wrote:
    I've dealt with quite a few accident's involving cyclists, some fatal and on most occasions it's been the cyclists fault.
    Cyclists do matter, but some of them don't do themselves any favors
    Your experience doesn't reflect the bigger picture; in fact quite the reverse (http://road.cc/content/news/12065-repor ... cent-cases). Prejudice is blind, though, after all.
    I can only go on my experience, which covers a period of 5 years

    Which cases? What were the incidents, where in most cases you are claiming the cyclist was at fault?


    All jobs that I have attended at work. They involve cyclists going too fast , not watching, or taking a risk. Some have been fatal, but most just minor injury.
    My experience may not reflect the bigger picture, I'm just saying what I have seen.
  • mybreakfastconsisted
    mybreakfastconsisted Posts: 1,018
    I know, you said that, I wondered if you could cite the incidents and name the cyclists, link to a report of what happened, because your claims are wildly at odds with all the published evidence?
  • mrbubbaman
    mrbubbaman Posts: 171
    mybreakfastconsisted wrote:
    I know, you said that, I wondered if you could cite the incidents and name the cyclists, link to a report of what happened, because your claims are wildly at odds with all the published evidence?
    of course I can't, I'd lose my job and my claims aren't wildly at odds at all (I haven't attended every single cyclist accident, nor have I claimed to)
    if there are 10 accidents and I attended the 5 where the cyclist was at fault and you attended the 5 where they weren't, our experiences would both differ wouldn't they?
  • mybreakfastconsisted
    mybreakfastconsisted Posts: 1,018
    You wouldn't lose your job if you posted a link to a newspaper report. It's interesting that you're now claiming blame between cyclists and drivers after a collision is now 50/50. It isn't. Take a look at the link posted upthread:
    Report in to DfT casualty stats says cyclists not to blame in 93 per cent of cases

    So you are claiming special knowledge that refutes published evidence. But you can't show any of it.
  • mrbubbaman
    mrbubbaman Posts: 171
    I give up! I can't post any reports and I don't have access to any news articles, I was just posting about what I have experienced, I don't need to back it up here.
    A news article won't give you the facts about what happened any way.

    I've not said it's 50 50, are you just trying to be thick?

    I'm not going to post anymore on this, you are free to carry on as you are.
  • natrix
    natrix Posts: 1,111
    Goodbye Mr Bubbaman :D

    It's not just cyclist who don't matter, if a copper kills a motorcyclist whilst on her mobile phone, they don't even get prosecuted :evil: :evil:

    http://www.bournemouthecho.co.uk/news/1 ... le/?ref=nt
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  • Pross
    Pross Posts: 43,463
    mrbubbaman wrote:
    I give up! I can't post any reports and I don't have access to any news articles, I was just posting about what I have experienced, I don't need to back it up here.
    A news article won't give you the facts about what happened any way.

    I've not said it's 50 50, are you just trying to be thick?

    I'm not going to post anymore on this, you are free to carry on as you are.

    It's a shame you won't post again as I would really like to know how you assessed blame in these circumstances. If you are a police officer then I would assume your investigations would filter down onto the STATS19 forms which would be interesting as that is a key factor used in producing the DfT report. If this isn't the case then I am at a loss to work out what inside knowledge your job could give you that an investigating officer would not have access to.
  • litwardle
    litwardle Posts: 259
    Why is everyone giving Mr Bubberman a hard time! If he does work for an emergency service then of course he can't discuss individual incidents. Nor can he post links to articles as that is the same thing! He didn't say the research was wrong did he? He just comment on his own personal experiences adding to the grown up conversation that was going on.

    Citing POLCACC's where an officer is at fault is very much witch hunting btw!
    Chubbs Cycle Challenge! 3 Chubbs, 3 bikes, 1000 miles for S.U.D.E.P. Action
  • danlikesbikes
    danlikesbikes Posts: 3,898
    doublem_1 wrote:
    Did the guy get anything for having his front windows tinted? It's illegal. Bet he didn't.

    He didn't have his front windows tinted, he had the side ones tinted - http://www.standard.co.uk/news/crime/mo ... 99206.html

    Being pedantic I know & not trying to cause and argument but your point is still valid as the law states must let through 75% of light to the front windows & 70% side to the side - https://www.gov.uk/tinted-vehicle-window-rules

    As you can see the penalties are pretty low though :(
    Pain hurts much less if its topped off with beating your mates to top of a climb.
  • Pross
    Pross Posts: 43,463
    litwardle wrote:
    Why is everyone giving Mr Bubberman a hard time! If he does work for an emergency service then of course he can't discuss individual incidents. Nor can he post links to articles as that is the same thing! He didn't say the research was wrong did he? He just comment on his own personal experiences adding to the grown up conversation that was going on.

    Citing POLCACC's where an officer is at fault is very much witch hunting btw!

    That makes no sense though. If he is a paramedic or fire fighter who attends accident scenes then he is in no position to ascertain fault whilst if he is in the police and actively involved in investigating cause he would feed that back into the very data that was used for the source of the report so he must work in some sort of rare hotspot where cyclists are more at fault in accidents.

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