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Cite as: [2024] ScotCS CSOH_39, [2024] CSOH 39

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OUTER HOUSE, COURT OF SESSION

[2024] CSOH 39

PD372/22

OPINION OF LORD SANDISON

In the cause

NIGEL DICK

Pursuer

against

JOSEPH MERRICK

Defender

Pursuer: Mackay, KC et Hovey; Thompsons

Defender: Brownlee; Eversheds Sutherland

3 April 2024

Introduction

[1]

At about 5.30pm on 26 August 2019, bicycles being ridden respectively by the

pursuer, Nigel Dick, and the defender, Joseph Merrick, collided at or near the junction

of National Cycle Route (NCR)7 and NCR75 between Linwood and Johnstone. Both men

were injured, Mr Dick very seriously so. The matter came before the court for a diet of

proof before answer of four days' duration in order to determine who was at fault in causing

the accident, and if both parties were at fault, in what proportions. The following aerial

photograph shows the layout of the cycle paths, but should not be regarded as inferring

anything about the precise location of the collision, which was one of the matters in dispute

between the parties.

Statutory provision

[2]

The Law Reform (Contributory Negligence) Act 1945, as applicable to Scotland, inter

alia provides:

"1.-- Apportionment of liability in case of contributory negligence.

(1)

Where any person suffers damage as the result partly of his

own fault and partly of the fault of any other person or persons,

a claim in respect of that damage shall not be defeated by reason

of the fault of the person suffering the damage, but the damages

recoverable in respect thereof shall be reduced to such extent as

the court thinks just and equitable having regard to the claimant's

share in the responsibility for the damage ..."

The evidence

Pursuer's case

[3]

Nigel Dick (54) stated that he was employed as a senior control engineer in Renfrew.

In 2019, he was commuting to and from work and his home in Lochwinnoch by car or

bicycle. On the day of the accident, he was cycling home from work and had started his

journey about 5.00pm. He rode along public roads before joining the NCR75, intending then

to turn right (or westwards) along the NCR7 towards his home. He was very familiar with

the route, cycling it at least nine times a month. He was riding his own bicycle, and again

was well acquainted with its operation. He had not ridden the bicycle since the accident; it

had been kept in his garage.

[4]

He had been cycling southwest on the NCR75. Where that route approached the

NCR7, it split into a Y shape, with the right-hand fork intended for those heading right

onto the NCR7 westbound and the left-hand fork for those heading left onto the NCR7

eastbound. He was intending to turn right. As he approached the junction, he was

travelling at his normal speed for the location, being something between 12 and 15mph.

It was not possible to take the bend onto the NCR7 at speed. He was crouched down

slightly lower than a normal riding position, leaning forward, and his hands were covering

the brakes. On approach, he slowed down slightly and could see that his way to join the

NCR7 was clear. He did see a cyclist on the NCR7, whom he now believed to be the witness

William Howard, approaching the junction from the west, a good distance - some tens

of metres - away, but the NCR7 was otherwise clear. He would not have emerged onto

the NCR7 had it been dangerous to do so. He made the turn onto the NCR7 and was

established on that route when he looked up and saw Mr Merrick's bicycle emerge from

behind Mr Howard in order to overtake him. Mr Merrick had started his overtaking

manoeuvre when Mr Dick emerged onto the NCR7. As his bicycle and that of Mr Merrick

converged, he expected Mr Merrick to move back in towards Mr Dick's right-hand side, but

instead he started to go to Mr Dick's left. Having expected Mr Merrick to steer to the right,

Mr Dick had steered to the left, and the collision occurred. He recalled saying "You have

gone the wrong way".

[5]

After the impact, he remembered feeling pain and hitting the ground. Once lying on

the ground, he could not feel his arms or legs, and said to himself "I'm broken". He tried to

get up and passed out. The impact had been on his chest, perhaps slightly to the right-hand

side of it. He sustained serious injuries. His right lung was damaged, collapsed and filled

with fluid. Paramedics had put a tube into it from under his armpit. The pain from the

insertion of the tube had caused him to regain consciousness, and he heard the paramedics

tell him to calm down. He had been told afterwards that his heart had stopped and that he

had required resuscitation. He had also shattered his C3/C4 vertebrae, and was paralysed

from the neck down for a period. He had not entirely recovered, and was still quite severely

affected by his injuries.

[6]

He had not been able to ride his bicycle again. It had been taken from the scene of

the accident by the police, picked up by his brother and stored in his garage. A neighbour

had told him that it was pretty much unscathed. He had attended a reconstruction of the

lead-up to the accident organised by his solicitors, along with junior counsel, his wife and

the expert witness John Franklin. They had conducted exercises to try to establish his speed

at the time of the accident. A bicycle had been ridden several times down the NCR75 and

westwards onto the NCR7 at varying speeds between around 12 and 18mph, measured by

a trip computer taking a reading from the wheel. He had observed those rides and had

identified that which he thought most closely to approximate to his speed on the occasion

in question. A video had been made, which was shown. The result of the exercise was that

his speed was thought to have been about 15mph, which would be within the normal range

of speeds he would travel in taking the bend.

[7]

He had taken videos of his bicycle after the accident, to show the lack of damage to

it. The wheels were the standard spoked wheels which came with the bicycle. They still ran

true, without touching the brakes. The relative videos were shown, and the running of the

wheels demonstrated by the pursuer in court.

[8]

The pursuer was aware of the Strava app which could, inter alia, be used to monitor

bicycle rides on a mobile phone, but did not himself use or have it.

[9]

The place where the accident had happened was not a T-junction. There were no

warning signs or signs directing traffic, and there were no road markings of any kind. It

was a merging of two paths, with no right of way for anyone. He had been on a normal

commute at a normal speed. If anyone had formed the notion that he had been on a time

trial, he had no idea how that impression could have been given. He had been wearing

a rucksack with personal items in it. Equally, he had no recollection of having given an

account of the accident to hospital staff, and had been on pain relief after his admission.

In particular, he had no recollection of having said that Mr Merrick had been going

about 25mph and that he had been going faster. He would not have been doing 25mph

at that point.

[10]

In cross-examination, Mr Dick stated that his approach to the junction had been

downhill on the NCR75 before veering right onto the NCR7. Although he remembered

the accident itself fairly vividly, his memory of its aftermath was poor. He had been

unconscious at the scene and had been given CPR by a passerby. He reiterated that he did

not recall having told hospital staff of what had occurred in any detail. He had completed

his turn onto the NCR7 before the collision.

[11]

His neighbour had adjusted the handlebars of his bicycle after it had been returned

to him. They had been more upright after the accident. They must have been moved by the

accident. The bicycle had aerobars fitted to extend the rider's comfort and reach. Mr Dick

had previously done a lot of long-distance rides. The part of the aerobars in line with the

handlebars functioned as forearm rests, and one's hands held the upturned section. One

leaned forward and hunched in order to become more aerodynamic. There were no brakes

or gear levers on the aerobars, and so one could not control one's speed when using them.

Immediately after the accident, his bicycle had been propped up against a metal post on the

northern side of the NCR7. The aerobars had been displaced upwards by 10 or 20 degrees.

On the approach to the junction, his body position was down low, but his forearms were on

the handlebars and his hands were covering the brakes. He was fairly sure that he was not

using the aerobars. He accepted that one's body position would be low if one was using the

aerobars.

[12]

He further accepted that the speed estimation exercises which had been carried out

had suggested that his speed at the time of the accident was 13.4mph. The bicycle used in

the exercises did not have an aerobar fitted, the rider had his hands in the same position

as Mr Dick had had his hands, but was not leaning forward. Mr Dick had observed the

exercises from the south side of the NCR7. His view of what was happening was not

unimpeded. He could not recall if he had moved position during the exercises. There had

been at least three runs and he had chosen one as representing his speed at the time of the

accident. He accepted that perceptions of speed could be different when riding as opposed

to when observing. He knew the speed he had come down the hill, he did it a lot. In the

exercise, he had chosen the speed he had been doing at the time, although he could have

been out by a few miles per hour.

[13]

He had a driving licence. On the day, he was merging into a path. There were no

lines marked on it. There was no right of way, but he would have waited at the junction

if proceeding would have impeded someone. He could not comment on where he and

Mr Merrick had ended up after the collision.

[14]

In re-examination, Mr Dick stated that when the collision was imminent, he had

moved his hands from the brakes onto the aerobars. The clamps attaching the aerobars

to the handlebars were slightly loose, and the aerobars were able to move up and down if

pressure was applied to them.

[15]

Joseph Merrick (66), the defender, stated that he was a retired schoolteacher and

fair-weather cyclist. He used the Strava app to look back at his cycling trips. On the day

in question, he had been called in to do supply teaching work at Glengarnock. His wife

had dropped him off in the morning and he was to cycle back home to Anniesland in the

evening. She had fallen ill during the day and he had stopped work earlier than usual to

cycle home on the NCR7. He was familiar with the route and the junction in question,

having cycled it a few times previously, although not several times a week. He had also

used the NCR75, so was familiar with the junction from that perspective too. While cycling

eastwards along the NCR7, he came across a cyclist in front of him, about 50 metres before

the junction. That cyclist was going considerably more slowly than him, and he overtook

him. He then moved back to the left-hand side of the path and proceeded. He followed the

rule of the road on the path, namely keeping to the left. Mr Dick suddenly emerged from

the junction and came straight into him at 45 degrees, right at the junction. It was a severe

impact on Mr Merrick's left-hand side. Although he was cycling with his hands on his

brakes, he had no time to react and apply them. As one approached the junction, one could

not see onto the NCR75. He could see that the path in front of him was clear for metres

ahead. He had not been going fast and had not taken any steps to slow down when

approaching the junction. He was a car driver too, and accepted that one ought to be able

to stop in an emergency, but saw no necessity to slow down. He did not know how fast he

was going. His Strava app said that his trip average had been 18mph. On a clear straight

path, 20mph was not fast. He was a slow cyclist.

[16]

He had broken his left collarbone in the accident. In hospital, he had not been asked

about the accident and did not recall giving any information beyond the fact that he had

been hit. After the accident, his wife had come to the scene. He had asked her to do so, but

had not explained exactly what had happened as he did not want her to be alarmed. It was

very concerning that Mr Dick had stopped breathing for a while. He had not invited her

to take photographs of the scene, but in fact she had done so. He had annotated, though

not particularly accurately, another photograph, not taken by her, to show where he and

Mr Dick had come to rest after the accident. They had both ended up on the southern

verge of the NCR7, Mr Merrick with his feet adjacent to a metal pole which was a metre

or so east of the junction and Mr Dick in a more easterly position facing the other way

from Mr Merrick but with their heads near each other. The point of collision had been on

the NCR7 at the junction, perhaps towards the middle of the path. Mr Merrick had been

hit on the left-hand side. After the accident, his bicycle had been propped up against a

metal pole to the south of the NCR7, which was directly opposite the matching pole to the

north against which Mr Dick's bicycle had been propped. His bicycle was damaged in the

collision; the brake and gear lever was badly damaged, the front fork was compromised and

the frame, which was carbon fibre, would have had to be X-rayed to ensure its safety before

the bicycle could be ridden again. He had not thought that to be worth the expense, and had

disposed of the bicycle.

[17]

He had not consulted solicitors prior to the raising of the present action. A few

months after the accident, he had made an insurance claim for a new bicycle and his insurers

had appointed his present solicitors. He had given them accurate information. He had

commenced cycling again now. He believed that he had the right of way at the point of

the accident, as anyone coming out of the NCR75 and turning right would have to cut

across people going east on the NCR7. Mr Dick had come straight through the junction

at speed and right into him. He had not seen whether Mr Dick was in a hunched position,

simply that he was exceptionally low on his bicycle, indeed strangely so. The collision had

happened in the tiniest element of a second. He did not know whether Mr Dick had slowed

or not before the collision. The accident had not happened as Mr Dick maintained; that

was nonsense. Both would have braked had they been approaching each other head-on.

Mr Merrick was not in the process of overtaking Mr Howard when the collision occurred,

nor had he just finished doing so. That categorically did not happen. The police had not

taken a statement from him after the accident; they had taken one from Mr Howard. He

had already overtaken Mr Howard and was re-established on the left-hand side of the path

when he was hit at the junction. Mr Howard was cycling slowly; he was barely moving.

Mr Dick had not completed his turn and was not established on the NCR7 at the time of

the collision. Mr Merrick had the right of way and was not travelling fast. The accident had

not happened west of the metal poles. He had not commenced overtaking at a point when

Mr Dick would have been visible to him.

[18]

Mr Merrick was presented with a document bearing to be the Strava data for the

ride which ended in the collision. It showed his speed at that point to be 20.1mph, although

he had never seen that type of analysis before. He stated that if that was what his Strava

data said, he would accept it. It bore to show that he had travelled at up to 26.6mph during

the trip, and that would be about right. He had only joined the NCR7 less than 150 metres

before the accident.

[19]

In cross-examination, Mr Merrick re-iterated that the collision had taken place right

at the junction of the NCR7 and the NCR75. He had never had any issues at the junction

before. The verges had been heavily foliaged at the time. He had seen Mr Dick for a split

second, but had had no time to react. The collision was not head-on; he had been hit on his

left-hand side, instantaneously. He thought that Mr Dick's head had struck the left side of

his chest. He had had no opportunity to press on his brakes, even though his fingers were

on them. As Mr Dick exited the junction, his upper body was low to his bicycle. All that

could be said about his speed was that he was not there, and then he was. If Mr Merrick

had had the opportunity, he would have avoided him. He was aware of being thrown

from his bicycle and struggling to breathe. Mr Dick's head had ended up close to his, and

Mr Merrick had spoken to him, asking "What happened there?" Mr Dick was unconscious,

with a froth around his lips, not moving at all. Mr Merrick asked Mr Howard to call the

emergency services and tell them that Mr Dick was not breathing. A young woman arrived

at the scene and took the telephone from Mr Howard. She had tried to resuscitate Mr Dick

and relay information to the emergency services. In addition to his fractured left collarbone,

Mr Merrick had sustained broken left ribs.

[20]

When his attention was drawn to hospital notes taken on 29 August 2019, recording

that he had been cycling at more than 20mph, Mr Merrick stated that although he was in

agony and squealing at the time, the notes were vaguely consistent with his recollection.

Mr Dick's bicycle was fitted with aerobars, which allowed the rider's body position to be

down and reduced resistance from the body to air. Mr Dick's body position at the time of

the accident was consistent with the use of aerobars. Mr Merrick's overtaking manoeuvre

had been completed before the collision. His speed felt comfortable to him. He cycled with

his body upright, not using aerobars. His hands had been on the brakes, but he had had no

opportunity to apply them.

[21]

William Howard (63) gave evidence by WebEx, which was interposed between the

chief and cross of Mr Merrick. He was anxious to make clear at the outset and throughout

his evidence that he had no clear memory of the collision. On the day in question he had

set out on a leisurely cycle ride to get power back into his legs after recent surgery. He had

walked uphill for a bit, and then cycled eastwards down the NCR7 on the left-hand side.

At a junction on the main path, someone had passed him by at some pace. Another cyclist

came down the NCR75 quite fast. He had ploughed right into the cyclist who had overtaken

Mr Howard and they had both fallen off their bicycles in different directions. One had

appeared to be knocked out, but the other had said that he was not breathing and that

Mr Howard should call 999.

[22]

The cyclist whom he now knew to be Mr Merrick had passed him when he was

not going fast. He could not say exactly where the overtaking manoeuvre took place,

perhaps 20 to 30 feet or so before the junction. That was guesswork, however - it had

happened a few years ago. He could not remember the exact layout of the paths and

junction - it was his first time on the path. He could not swear to the exact distance from

the junction that the overtaking manoeuvre took place, and was not to be quoted on the

matter. He had been in shock. The collision had occurred not long after Mr Merrick

overtook him, just seconds afterwards. On being referred to photographs of the scene,

Mr Howard appeared to come to the view that the overtaking manoeuvre had taken

place perhaps seven to 10 metres west of the metal poles and that the point of impact

had been just east of those poles, at the junction. He had been able to see the junction as

he approached it. Mr Merrick had been ahead of him when the collision occurred, but, he

thought, still on the right-hand side of the track. Mr Howard was not going fast. The

collision had been in front of him, but not particularly close to him. He was lucky not to

have been skelped himself; that would have caused him a lot of health problems. Mr Dick

was coming down the slope of the NCR75 quickly and without slowing down had ploughed

into Mr Merrick, who did not know what had hit him. It had happened years ago; his

memory was not that clear.

[23]

He could not remember where Mr Dick and Mr Merrick had been lying after the

accident, or how close they were to the poles. He had got off his bicycle and had come

across Mr Dick first, then Mr Merrick. They were about 10 feet apart. Mr Dick was on

his side, with a rucksack on his back. He had not seen anyone propping up their bicycles

against the metal posts.

[24]

He might have given statements previously about the matter, but thought that he

had changed his mind about what had happened after doing so. He might have given a

statement to the effect that Mr Merrick had overtaken him 3 yards before the collision, but

could not remember if that was true or not. He might have made a mistake about that, and

in any event did not remember saying it. On being shown a signed statement which he

had given to the pursuer's solicitors in February 2022, Mr Howard stated that he could not

remember signing it or what he had said in it. He would have been trying to tell the truth

at the time. The statement contained an observation that Mr Merrick had passed him

3 yards before the collision, but he could not remember whether that was accurate or not.

Mr Howard had been slightly back when the collision occurred, so that did not seem right.

It was not consistent with what he was saying in his evidence to the court, and he could

not explain why. He did not remember saying anything about there having been a cyclist

behind him, as the statement claimed. His memory about the whole incident was not that

good anymore. He believed that Mr Merrick had been on the right-hand side of the track

on impact, but his memory was not great. In response to a leading question, he stated that it

was a possibility that the collision had been head-on.

[25]

He had given a statement to a police officer after the accident, but could not

remember what he had said. He would not have lied. On being shown the signed statement

he had given to the police on the day of the accident, he agreed that he had said that he had

been overtaken by another male cyclist just as they were approaching a Y-junction. He did

not remember saying that the collision had occurred right in front of him. He did not

remember giving the statement at all, but obviously must have done so. There was a sketch

of the scene in the policeman's notebook. He had not drawn it, had not signed it as accurate,

and did not think that he had even seen it.

[26]

In cross-examination, Mr Howard stated that the policeman's sketch accurately

showed the direction of travel of Mr Dick and Mr Merrick respectively. An asterisk drawn

at the junction was consistent with his memory of where the collision had occurred. His

recollection of precise details was not particularly good. He could remember fundamentally

what had happened. Mr Merrick had overtaken him. He was going slowly and the

manoeuvre had been completed. The collision had happened in front of him, at the junction.

The cyclists ended up on the grass verge opposite the junction. Mr Dick was partially on the

path opposite the mouth of the junction, with his head towards the verge.

[27]

In re-examination, Mr Howard stated that Mr Merrick had ended up on the grass

verge, Mr Dick on the pathway. When he spoke to the police officer, he probably did not

know the names of the cyclists. He had not drawn the sketch in the notebook. He did not

remember having seen it, but he must have done.

[28]

John Franklin (75), a consultant in cycling skills and safety, provided an expert

report dated 28 March 2023 considering the circumstances of the accident, the layout at the

locus, the behaviour of the two cyclists and their relative right of way over one another. He

was the author of Cyclecraft, the definitive guide to skilled cycling technique published by

the Stationery Office in various editions from 1988 to 2020, and of Advanced Cycling for the

Institute of Advanced Motorists in 2010. He was a member of the UK Government/CTC

Reference Group that developed the National Standard for Cycle Training and accreditation

scheme launched in 2003, and of various other Department of Transport advisory and

working groups.

[29]

He had visited the site of the accident on Friday 1 July 2022 with a bicycle in order

to survey the scene and gain an understanding of what might have occurred. He had met

Mr Dick there. He had returned to carry out speed tests on 9 November 2022. Mr Dick

had told him that he had crossed a bridge over the A737 and had then turned right onto the

NCR7, towards the west, that he thought that he had managed the turn onto NCR7 and then

saw Mr Merrick coming towards him at speed, and that he recalled saying to him, "Oh dear,

you have gone the wrong way", following which he had hit the ground. The bicycle he was

riding was unscathed. That was consistent with previous accounts of the accident reported

to Mr Franklin.

[30]

At the locus there was a triangular junction between three cycle paths: the NCR7

to the west and east and the NCR75 to the north. The paths were unsegregated shared

use cycle/pedestrian paths, mostly 2.4 metres wide but a little wider through the triangular

junction. The NCR75, coming from a bridge over the A737, descended a steady hill.

Although not very steep, the gradient added to the speed of a cyclist approaching the

subsequent junction. Visibility along the through route of the NCR7 from west to east was

good but more limited to and from the NCR75. There were no regulatory signs or markings

at or near the junction and no indication of priorities.

[31]

Mr Merrick had been using a Strava performance tracking device at the time of the

accident, which recorded data about a cyclist, including speed, and stored it online for

subsequent retrieval. Mr Franklin had been provided with an excerpt from Mr Merrick's

Strava log for his ride leading up to the locus. Although he had limited experience of

Strava use or logs, this showed that he was travelling at 20.1mph (approximately 8.99 metres

per second) approaching the scene of the collision. One could not tell from the Strava data

on which side of the path Mr Merrick had been travelling. As Strava had an accuracy of

only 15 to 30 metres, it was not possible to locate precisely Mr Merrick's position on a path

only 2.4 metres wide. All highways (including cycle paths) had design speeds, intended

to facilitate normal traffic and limit high speeds. A speed of 20.1mph was greater than the

recommended design speed for cycle paths of 30km/h (18.75mph). That was the highest

theoretical speed that cycle paths were designed to accommodate safely. In England,

the Department for Transport had recommended that people who wished to cycle faster

than 18mph should not use shared-use paths but should restrict their cycling to the roads.

At the locus the design speed of the cycle paths was much less than 30km/h due to the poor

intervisibility at the junctions. There were no speed limit signs. Technically, there was no

speed limit for cyclists; it was a matter of judgment, discretion and experience. The casualty

rate on cycle paths was high.

[32]

It had been suggested that Mr Dick rode into Mr Merrick on his left side. However,

if Mr Dick had ridden directly into the side of Mr Merrick, it was almost certain that

Mr Dick's bicycle would have suffered damage, which it did not. Mr Franklin had

investigated hundreds of cycling collisions and could not think of a single one in which

the wheels of a bicycle ridden into the side of another one had not been damaged. Neither

bicycle in the present case had apparently been damaged in that way, which meant that a

perpendicular or "T-bone" collision, or even one at 45 degrees as claimed by Mr Merrick,

could not have been what had happened. If there was damage to the front fork of

Mr Merrick's bicycle, as he claimed, that would have needed a significant impact at the

front of the machine, and would have resulted in wheel damage as well. Much more likely

was that the two cyclists suffered a glancing person-to-person impact, left side to left side,

in which their bikes did not make contact. This would have happened if the two cyclists,

at the point of impact, were each riding in opposite directions along the NCR7, rather

than one riding across it. This could have been the case if Mr Dick had completed his

turn onto the NCR7 and then met Mr Merrick riding on its southernmost side, perhaps

because Mr Merrick had not yet completed an overtaking manoeuvre past Mr Howard.

[33]

There was no direct evidence as to the speed of Mr Dick. However, during

Mr Franklin's second site visit, Mr Dick's solicitor had ridden a bicycle at various speeds

approaching the locus, witnessed by Mr Dick. The exercise was repeated until Mr Dick was

satisfied that the speed was similar to that of himself on the day of the accident. Mr Franklin

had timed the rides over a measured distance of approximately 16 metres at the approach

to the locus. When the speed was considered by Mr Dick to be close to his own, the exercise

was repeated three times at about that speed and an average time and speed calculated. All

distances were actually measured in paces, each pace being approximately 1 metre. Times

of 2.56, 2.49 and 2.80 seconds were measured, averaging 2.66 seconds. This gave an average

speed over the measured distance of 6.01 metres/second (approximately 13.4mph). The

exercises had been videoed, and the videos were shown in court.

[34]

Based on a video taken on 10 March 2020, recorded from a bicycle being ridden

eastwards along the path, estimating its speed in metres per second (6.25mph), and seeing

an unconnected cyclist emerging from the NCR75 and turning right when the camera

was at 21 seconds from the junction, one could calculate that Mr Merrick could have seen

Mr Dick from about 6 seconds before the junction. Due to the poor sightlines at the junction,

Mr Dick would not have been able to see Mr Merrick until he was about 3.5 metres before

the junction. It was speculation that Mr Merrick had been masked by Mr Howard as

Mr Dick approached the junction. To stop at the junction, it would have been necessary

for Mr Dick to have been travelling at no more than 2.4 metres per second (5.36mph) when

Mr Merrick was first seen. That was a very slow speed and one at which some people were

unable to maintain balance. If Mr Dick was travelling at 13mph, it would have taken him

around 12 to 15 metres to stop.

[35]

There were no rights of way, or indicated priorities, at the locus. There were no

surface priority markings or regulatory signs. The only signs present were informative

direction signs which conveyed no indication of priority. All three junctions at the locus

involved oblique angles between at least two of the paths; none was in the form of a

T-junction. This form of Y-junction was not uncommon on cycle paths or rural roads.

Therefore the presumption sometimes made that traffic travelling across the top of a

T-junction had right of way over anyone coming along the stem of the T did not apply.

The presumption relied upon the fact that traffic from the stem was obliged by geometry

to turn slowly; at the locus it was physically possible to make all relevant turns at speed.

Where there were no defined rights of way, markings or signs, all highway users were

required to proceed on the basis that someone else might conflict with their direction of

travel and everyone should therefore proceed with care. That involved reducing speed as

necessary in order to be able to stop, checking for traffic on intersecting route(s) and being

able and willing to give way to it. Although there were no rights of way at the junction,

there was a presumed priority along the paths leading to it. On a two-way highway

vehicular traffic (which included cycles) should keep to the left-hand side unless

circumstances justified adopting a different position. One exceptional circumstance was

when one vehicle overtook another. In this case the overtaking vehicle had to ensure that

it was safe to overtake before doing so and that it would remain safe until the overtaking

manoeuvre was complete. A vehicle did not have priority to overtake another vehicle

coming towards it on the same side of the path. If there was uncertainty as to whether the

way ahead would remain clear (and there was always uncertainty if there was a junction

approaching), no overtaking manoeuvre should take place. Rule 67 of the Highway Code

told cyclists to look all around to make sure it was safe before moving away from the kerb,

when pulling out to overtake or to pass stationary vehicles, or when turning at junctions

or stopping. The Highway Code applied when cycling on any route adopted as a public

highway and was accepted as good practice on unadopted highways.

[36]

If Mr Howard was correct that he was overtaken by Mr Merrick only seconds before

the collision, to have overtaken so close to the junction was a dangerous practice and one

with a high probability of a collision occurring should anyone emerge from the NCR75.

Mr Merrick did not have priority over anyone coming from the NCR75 and he should not

have been on the right side of the path approaching the junction. If Mr Merrick's speed

approaching the locus was around 20mph, that was in excess of the design speed of cycle

paths, especially with another cyclist ahead of him (Mr Howard) and a junction coming up.

A reasonable speed for the circumstances would have been no more than 10mph but that

would still not have given sufficient time safely to overtake before the junction. The

Highway Code warned cyclists to take care passing on cycle tracks and to be prepared to

slow down or stop as necessary. The rule (62) specifically referred to passing pedestrians,

children and disabled people, but the same principle applied to passing other cyclists.

Measurements made at the locus with regard to Mr Dick's likely speed and his turning

movement at the junction supported his contention that he had turned fully onto the NCR7

before the collision. As Mr Howard was not involved in the collision it would appear that

Mr Dick had had sufficient time to turn in front of him. He might have based his decision

to go ahead on the fact that he could see Mr Howard at a sufficient distance. He should

have taken longer to make his decision. Poor visibility at the junction made it more difficult

for Mr Dick to respond to Mr Merrick's presence than vice-versa. He may have had less

than 1 second to respond after turning onto the NCR7. Most of that time could be taken up

with reaction time before the brakes could be applied. Mr Dick was probably travelling too

fast when he reached the NCR7. As Mr Dick did not come into conflict with Mr Howard,

who was riding on the north side of the path, it seemed likely that no collision would have

taken place had the south side of the path been free for Mr Dick to use. Thus the primary

cause of the accident happening was probably that Mr Merrick was already riding on the

south side of the path approaching the locus, contrary to safe practice.

[37]

In cross-examination, Mr Franklin stated that he had no formal scientific

qualifications beyond A level mathematics. His report proceeded on the basis that the

collision had occurred to the west of the junction, but he was not completely sure that

Mr Dick had made the turn onto the NCR7 before it happened until he had investigated

further. He had come to the conclusion after looking into matters that the point of collision

had been to the west of the metal posts, that is at least 2 metres to the west of the junction

between the two paths. The collision therefore took place wholly on the NCR7; it was not

a junction accident. Mr Dick would have been able to see more than 10 metres along the

NCR7 when he was 3.5 metres from the junction with the NCR75. At the speed he was

going, he could not have stopped at the junction. Reaction time would also have been

necessary. It was not good practice only to brake when you saw someone at a junction.

Aerobars had no brakes. It was not good practice to use aerobars at a junction in ordinary

circumstances - one should have one's hands on the brakes. Hazards should be anticipated.

Some hazards were more difficult than others to avoid. Some were unavoidable.

Mr Merrick too had been going into a situation where he had no right of way at far too high

a speed.

[38]

Had the collision occurred as Mr Merrick described, there would have been damage

to the wheels of the bicycles, regardless of the speed of the impact. Strava was very accurate

when it came to speed. The apparent speed at which Mr Dick had been travelling, or 12

to 13mph at any rate, was similar to the maximum speed at which the turn onto the NCR7

could be taken. It might be that the estimation had not been entirely accurate.

[39]

In relation to the video taken on 10 March 2020, Mr Franklin did not know who had

taken it. The speed of the bicycle from which it had been taken had been deduced from the

rate at which it passed landmarks known to be a particular distance apart. The speed of the

cyclist who had emerged from the NCR75 in the video was unknown.

[40]

In re-examination, Mr Franklin stated that a Y-junction was a hazard; one ought

to anticipate hazards and adjust one's speed accordingly. Both parties in the present case

ought to have anticipated a hazard and adjusted their speed.

[41]

Mark Hill (60) spoke to an expert Collision Reconstruction Report prepared by him

in January 2024. He stated that he was a Principal Consultant in the Investigations Group

at TRL (the Transport Research Laboratory), specialising for over 20 years in road accident

reconstruction and providing consultancy advice. TRL was part of the Transport Research

Foundation, an independent, non-profit organisation providing impartial advice and

consultancy in the transport sector. He specialised in road traffic accident reconstruction

and held a Master of Science degree (with Distinction) in Collision Investigation. He had

undertaken numerous collision investigations across the entire spectrum of severity,

complexity, and transport modes and had reported his findings to all strata of the judicial

system. He held the Licentiateship of the City and Guilds of London Institute in Traffic

Accident Investigation.

[42]

It became apparent in the course of Mr Hill's evidence that the parties had agreed

the resting positions of the parties after the accident. The position of Mr Dick was agreed

as being as depicted in the following photograph. The position of Mr Merrick was agreed

in a more roundabout way, but essentially was also as is shown in the photograph.

[43]

Mr Hill had visited the site of the accident on 30 August 2023 and again in the week

of the proof, when he had ridden through the locus in both directions in order to get a feel

for it. He had also examined Mr Dick's bicycle. On Mr Dick's route, he had felt comfortable

making the bend at 12 to 13mph, certainly no more. He was aware that the Strava data

suggested that Mr Merrick's speed had been 20.1mph and considered that to be at the edge

of the comfort zone. By way of overview, he considered that the evidence he had seen

supported the conclusion that there had been a collinear collision. In his experience, no

collision as described by Mr Merrick had failed to result in front wheel damage to the bicycle

coming from the side. Similarly, if Mr Merrick's description of how the collision occurred

was correct, his body would have come to rest further south and east than he did. Mr Hill

did not have experience of collisions between the bodies of cyclists.

[44]

Mr Merrick's post-collision rest position was west of the junction between the

two cycle paths. A perpendicular or 45-degree collision would have been highly likely to

have caused him to come to rest further south of the cycle path, on the southern verge of the

NCR7 opposite the junction with the NCR75. His actual rest position supported a collinear,

or almost collinear collision with an opposing cyclist, whilst both riders were established

on the NCR7, and it was highly unlikely, given their rest positions, that a perpendicular

collision occurred. The same would apply if the collision had been at a 45-degree angle.

Mr Merrick could not have ended up where he did if the collision had been at that angle.

That was not possible. Mr Merrick's significantly greater speed accorded him significantly

greater momentum. It was a matter of basic physics that a collinear collision would result

in the direction of the body with greater momentum prevailing. The body with lesser

momentum would be pushed back. Although he did not know the precise combined

weights of each man and his bicycle if, for example, both were of, say, 82kg in mass

and Mr Merrick's speed was 21mph and Mr Dick's speed 13mph, Mr Merrick would

have a momentum of 770kg/ms-1 and Mr Dick would have an opposing momentum of

only 477kg/ms-1. Further illustrative calculations were done by Mr Hill in the witness

box at my request, demonstrating the effect on their differing momentums if the weight

or speed of each man varied from the primary example. It followed, said Mr Hill, that

a collinear contact would have likely pushed Mr Dick eastward as the two riders came

together. Mr Merrick's resting position close to the metal post supported the conclusion

that, if the collision was collinear, it would have occurred at least adjacent to the metal posts,

if not west of them.

[45]

Cyclists travelling southward on the NCR75 toward the junction with the NCR7,

intending to travel westbound, crossed over the A737 overbridge and commenced a

downhill course, through a shallow right curve toward the junction. The approach to the

junction was bordered by narrow grass verges and mature hedge- and treelines, limiting

views of the NCR7 to the right (westward). The final approach to the NCR7 curved right,

left, and right through shallow deviations over some 50 metres, levelling out just prior to

the junction. The hedge and treeline to the right was established and initially dense, but the

latter part of the border comprised silver birch saplings and, lastly, a large goat willow tree.

At the time of Mr Hill's visit to the site, the deciduous vegetation would have been similar

in density and extent to that at the date of the collision. A goat willow tree to the cyclist's

right was passed at 9 metres from the junction threshold and an uninterrupted sightline over

some 150 metres was available westward at that point. Equally, cyclists passing that point

could be seen by traffic on the NCR7. Cyclists then negotiated an approximate 130 degree

change of direction to their right, in order to commence their westbound course on the

NCR7. It would have taken Mr Dick 1.5 seconds to travel the 9 metres from the goat willow

tree to the junction threshold at 13mph. The Y-junction was a hazard. One should slow

down and be aware when approaching a junction. That applied to both riders in the present

case. Although not signed in advance, the junction with the NCR75 was visible from the

NCR7 from 150 metres away with prior knowledge and from 100 metres away without.

[46]

Although the exact nature of the damage to be expected to Mr Merrick's bicycle

depended on the nature of the collision, in general terms a side collision to the front wheel

would have caused it to buckle, likewise if there had been a side collision to the rear wheel

it would have buckled. If the side collision was to the middle of the bicycle and was

significant, the rear wheel would have buckled in that situation also. Mr Dick's front

wheel would have buckled if the angle of its collision with Mr Merrick's bicycle had been

at 45 degrees or greater. Little force was required to result in buckling of a spoked wheel

when force was applied to its side and this was particularly the case in side impacts in

collisions. In this case, there was no evidence of either direct side impact to the wheel or of

an indirect induced force to the wheels from an impact into the side of Mr Merrick's bicycle.

On Mr Dick's bicycle, both the front and rear wheels displayed very slightly out-of-true

alignment, but not to the point of rubbing against the brake blocks. Mr Hill's opinion was

that that was not related to the collision, but was likely the result of typical road use. The

aerobar extensions were found after the accident to be elevated upward extremely from a

typical position.

[47]

Mr Merrick had a Strava account, which was an app accessed by an enabled

Android, iPhone, or fitness GPS-type device that measured a number of activity functions.

This account recorded, via satellite fix, his speed, distance travelled, and other associated

functions, such as maximum speed, altitude gained/lost, and so on. Strava data was only

accurate to a few metres, typically around 5 to 10 metres, depending on the device and the

location. Built and tree-lined environments could significantly affect and decrease the

accuracy of the plots produced from satellite fixes. A number of sources commented on

the accuracy of GPS augmented devices and the Strava application, with a general finding

that Strava was accurate to around a 90% level of precision. Mobile phones used for satellite

positioning functions were found to have a mean accuracy of +/- 5 metres. Any weight

placed upon any position recorded via a satellite fix had to be considered with this error

margin in mind, in addition to any error margin associated with a particular application,

such as Strava. The Strava data provided by Mr Merrick could not with any certainty assist

with precisely where to the metre he was at the moment of impact, either along the cycle

path, or across the width of the path. Mr Hill had been provided with a number of Strava

pages in the form of a single printed document, which was not in a format enabling him

to interrogate the data. The collision occurred shortly before the sudden drop in speed

disclosed by the data. The speed of Mr Merrick at the moment of collision was likely

about 20.1mph. As to Mr Dick's speed, in the absence of other data to assist, Mr Hill

was reliant on the reconstruction exercise conducted with the assistance of Mr Franklin,

suggesting a speed of approximately 13.4mph (6 ms-1) on approach to the locus.

[48]

The reaction time of a driver (or rider) to an event requiring action was often

referred to as the Perception-Response Time (PRT). A driver's perception-response

time only commenced at the point he first perceived the hazard. The four stages of

perception-response time were detection, identification, decision and response. The

perception-response interval ended, for example, when a foot landed on the brake pedal or

hands began to turn the steering wheel. For an alert driver, a typical perception-response

time was suggested to be between 0.75 second and 1.5 seconds. This was dependent upon

various factors. For an angular path intrusion such as the one in issue here (ie Mr Dick

emerging onto the NCR7 from the NCR75) a reasonable rounded range of 1.0 second to

1.5 seconds as a reaction time was appropriate.

[49]

It seemed clear that the collision between the two cyclists occurred when they were

both on the NCR7. The angle between the two bicycles and riders at the point of collision

would have had to be very shallow, if not collinear. Any angle of incidence greater than

probably about 10 degrees would more likely have resulted in a separation of both parties,

and given the apparent final resting position of Mr Dick in relation to Mr Merrick, it

seemed likely that the two riders and their machines had coalesced. Given the apparent

rest positions of both parties, the contact probably occurred nearside to nearside. Had the

contact been a side impact of Mr Dick's bicycle into the side of Mr Merrick's machine, the

deflection of Mr Merrick would have been notably greater.

[50]

It would have taken Mr Dick 2.6 seconds to travel the 14 metres from the point when

he could first have had a good view along the NCR7 to the assumed point of collision at or

near the metal posts. At the point when Mr Dick would first have been able to see clearly

onto the NCR7 and would also have been able to be seen by Mr Merrick, the latter would

have been 24 metres from the point of impact. If Mr Merrick had seen Mr Dick at the earliest

opportunity and recognised that as an event requiring an emergency response, it would

have taken him 15.4 metres to stop if he required a 1 second PRT, or 19.9 metres if he

required a 1.5 second PRT. As to Mr Dick, on the same hypotheses, it would have taken him

8.3 metres to stop if he required a 1 second PRT and 11.1 metres to stop if he required a

1.5 seconds PRT. In order to avoid a collision, there would need to have been a separation

of the two parties by a minimum of 23.4 metres where both riders had a PRT of 1 second.

The slower the speed of either party, the greater was the opportunity for a collision to be

avoided.

[51]

In cross-examination, Mr Hill denied that he had tried to match the content of his

report to Mr Dick's version of events. It was a cycling convention to ride on the left and pass

on the right. Both riders should have approached the junction with due care and have been

prepared to stop. If he had been Mr Dick, he would have stopped at the junction. He might

have done the same had he been Mr Merrick, because Mr Dick was a potential hazard.

Although there was no formal speed restriction on a cycle path, an appropriate speed in all

the conditions was called for. Some hazards could not be avoided. One should not emerge

from a junction when it was unsafe to do so. Mr Dick could have stopped short of the

junction had he seen Mr Merrick at the first opportunity and had a 1 second PRT, but not if

he needed a 1.5 second PRT. It was possible that Mr Merrick was obscured by Mr Howard

when Mr Dick looked along the NCR7.

[52]

Aerobars lowered the profile of a rider's body, generating less wind resistance in

time trials and the like. They could also be used for comfort in that they allowed changes

of position during a ride. Aerobars did not have brakes on them. Mr Merrick's account of

Mr Dick's body position at the point of impact was consistent with the latter having been

using aerobars. In photographs taken shortly after the accident, the aerobars on Mr Dick's

bicycle were not in their normal position, but rather were bent back. That could have been

caused by the impact of the collision. There might have been a glancing blow between the

aerobars and Mr Merrick's bicycle.

[53]

There was no physical evidence as to the speed of either rider. Mr Hill had ridden

the route taken by Mr Dick at the junction at between 12 and 14mph. The bicycle he rode

did not have aerobars. He agreed that the perception of speed might be different as between

a rider and an observer, that it would have been difficult for Mr Dick to estimate his own

speed accurately, and that a wrong estimate would affect the calculations he had done. If

Mr Dick has rounded the corner at more than a comfortable speed, then the modelling

would have to be revisited. The configuration of the corner at the junction would not have

allowed Mr Dick to strike Mr Merrick at 90 degrees, but similar effects to a 90-degree strike

were to be expected even if the strike had been at 45 degrees as described by Mr Merrick.

[54]

In re-examination, Mr Hill stated that if Mr Dick's aerobars had been loose, they

would have moved backwards on impact if he was still holding them. An impact at

45 degrees would have pushed them forwards, not backwards as it appeared had happened

in fact.

[55]

The defender elected to lead no evidence.

Pursuer's submissions

[56]

Senior counsel conceded at the outset that Mr Dick was partially at fault, and

submitted that the critical question for the court was the just and equitable apportionment

of blame between the parties. Neither party appeared to have taken any steps in

anticipation of coming into conflict with the other, as they should have done. If the court

accepted Mr Dick's account of the mechanism of the collision, it was submitted that the

greater proportion of the blame should rest with Mr Merrick and that a just and equitable

apportionment would be a finding of 25% blame to Mr Dick and 75% to Mr Merrick. If, on

the other hand, the court accepted Mr Merrick's account of a 45-degree collision mechanism,

it was submitted that the blame should be apportioned 75% to Mr Dick and 25% to

Mr Merrick.

[57]

Mr Dick should be accepted as a credible and reliable witness. He accepted that his

recollection of events post-accident was poor. However, his memory of the accident itself

was fairly vivid. He was not dogmatic about anything and conceded matters which were

not clear in his recollection. His evidence was consistent with that of Mr Howard

regarding Mr Merrick having overtaken in close proximity to the junction and still being

on the southernmost part of the path at point of impact, and with the opinion of Mr Hill

that the ultimate resting position of Mr Merrick was impossible on his own version of the

collision. Mr Merrick, on the other hand, was unreliable. He was dogmatic and his very

detailed evidence about things that happened in a fraction of a second was unrealistic.

Mr Howard was a partly reliable witness. His recall of the accident was patchy and

occasionally inconsistent. Mr Franklin had an undisputed expertise and his impartial

evidence had not been contradicted. The crucial element of his evidence concerned the

safe speed at which the parties could have approached the Y-junction, namely 10mph for

Mr Merrick and 7mph for Mr Dick. All the evidence of speed suggested on a balance of

probabilities that the approach speed of both parties was substantially in excess of the safe

speed. If so, then both parties were in breach of their respective duties to take reasonable

care. It was a reasonable inference that if both parties were approaching a hazard at a safe

speed and keeping a good lookout, the accident would not have happened. Mr Franklin

also opined that if the collision had been as spoken to by Mr Merrick, he would have

expected buckling of the wheels of his bicycle. This evidence was supported by Mr Hill.

Mr Hill's skill in giving evidence on the matters within his report was not disputed. He

did not have a contradictor. He was a very impressive expert witness. He was clearly of

the view that, standing the laws of momentum, it was impossible for the parties to have

had a 45 degree collision at the location spoken to by Mr Merrick and to have come to rest

in their agreed positions. Ultimately, providing Mr Merrick's speed was greater than

Mr Dick's, the momentum of the collision was in Mr Merrick's direction of travel. The

point of impact must have been to the west of their resting positions.

[58]

Mr Dick was clear that he took the turn and established himself on the NCR7.

Having joined the NCR7 he observed Mr Merrick overtaking Mr Howard, expecting him

to complete the overtake and move in, but instead he moved to Mr Dick's left. There was

a head-on collision. He stated that he would not have emerged if it was dangerous. He

confirmed that it was not until he was established on the NCR7 that he looked up and

observed that Mr Merrick had come out from behind Mr Howard to overtake. Both

Mr Franklin and Mr Hill spoke to bicycle wheels being strong in their longitudinal axis

but weak transversely. Accordingly, both would have expected damage to the wheels of

Mr Merrick's bicycle in the event of a perpendicular collision. Mr Merrick spoke in detail

to certain damage sustained to his bicycle but made no reference to damage to the wheels.

The court should find that the mechanism of the collision was collinear, once Mr Dick was

fully established on the NCR7, in close proximity to the posts and 5 metres west of the

junction.

[59]

In relation to the extent to which parties maintained a proper look out, according

to Mr Hill's unchallenged evidence they could have seen each other when Mr Dick was

9 metres from the junction and 2.6 seconds from the likely point of impact, with Mr Merrick

24 metres away along the NCR7. Mr Dick's evidence was that he looked to the right on

approaching the junction and saw Mr Howard some distance away. He was clear that he

would not have emerged onto the NCR7 had he considered Mr Howard was so close that

it might be dangerous. Mr Merrick's evidence was unsatisfactory. He initially stated that

he had had no chance to observe Mr Dick prior to impact, then conceded that he saw him

for a split second before the collision. That evidence was entirely inconsistent with his

maintaining a proper lookout having regard to the distance and time during which he

would have been afforded a view of Mr Dick.

[60]

Mr Merrick's Strava data indicated that at the point of the collision he was cycling

at 20.1mph. He could not recall his speed, but took no issue with the suggestion of 20mph.

Mr Franklin opined that a safe cycling speed for him at the locus would have been 10mph.

Mr Dick estimated his speed at between 12-15mph, being his normal speed for the journey.

Mr Franklin, on the basis of the reconstruction exercise, opined 13.4mph. Mr Hill's estimate,

based on the comfortable speed at which the bend could be taken, was 12.7mph.

[61]

On the basis of the evidence of Mr Dick and Mr Howard, the court should find

that Mr Merrick overtook Mr Howard in close proximity to the locus and remained on the

opposite side of the cycle path at the point of impact.

[62]

Both parties accepted that they were familiar with the junction. Mr Franklin and

Mr Hill agreed that it was a potential hazard, and that both parties should have anticipated

it and adjusted their speed. The accident involved a combination of both riders going too

fast and neither rider keeping a proper lookout. Mr Merrick's fault occurred long before he

came to the junction, not in the micro-seconds before the collision. Had he been travelling

at the safe speed of 10mph, the accident would have been avoided.

[63]

It was a matter of agreement between the parties that there were no signs or

markings indicating any right of way at the junction. The court should find that neither

party had right of way. Accordingly, both parties ought to have been aware of the risk of

encountering another cyclist. Although there were no directly analogous cases, assistance in

approaching the apportionment of liability could be found in Eagle v Chambers [2003] EWCA Civ 1107,

[2004] RTR 9, per Hale LJ giving the judgment of the court at [10], [14] and [15]:

"[10] There are, as has often been held, two aspects to apportioning responsibility

between claimant and defendant, the respective causative potency of what they have

done, and their respective blameworthiness: see the well-known words of Denning

L.J. in Davies v Swan Motor Co Ltd [1949] 2 KB 291, 326, approved by the House of

Lords in Fitzgerald v Lane [1990] RTR 133, 143; and Lord Reid in Stapley v Gypsum

Mines Ltd [1953] AC 663, 682 and in Baker v Willoughby [1970] AC 467, 490.

...

[14]

We accept that s.1 of the 1945 Act requires the court to consider `the

claimant's share in the responsibility for the damage'. But the section is premised

on both parties being at fault. It is also impossible to consider the claimant's `share'

without also considering that of the defendant. Moreover the court has to do what

is `just and equitable' which includes being fair to the claimant as well as to the

defendant. Realistically, therefore, the court has to compare the one with the other.

The court would inevitably have to do this if there were cross claims between the

parties.

[15]

A little time was spent in argument discussing the case (which this is not)

where there are cross claims between the parties. Section 1(1) of the 1945 Act refers

to responsibility for `the damage', not responsibility for the accident. That is why a

passenger who was in no way to blame for `the accident' may share responsibility

for his own damage, for example by not wearing a seat belt. Could there ever be a

situation in which one party was, say, 60 per cent responsible for the other party's

damage but only 40 per cent responsible for his own? A car can do so much more

damage to a person than a person can usually do to a car. Fortunately, it is not

necessary for us to resolve this debate. The potential `destructive disparity' between

the parties can readily be taken into account as an aspect of blameworthiness. Where

there are cross claims, the arithmetic will reflect the different amounts of damage

done. Thus, while one might not wish to rule out the possibility that there might be

an exceptional case in which different apportionments were possible, no one has yet

thought of an example where this would be so."

[64]

The most probable mechanism for the collision was that Mr Dick had established

himself on the NCR7, encountered Mr Merrick, and that parties had suffered a glancing

impact. Mr Dick had approached the junction with the NCR7, looked to his right for

oncoming traffic, and observed Mr Howard. His assessment was that there was sufficient

space for him to proceed. That assessment was correct as no collision or near-miss took

place between him and Mr Howard. At the time he glanced to his right, he did not see

Mr Merrick and could not therefore take his location and speed into consideration. Due to

Mr Merrick's speed and decision to overtake, he presented a hazard that was not obvious to

Mr Dick at the time he assessed it was safe and clear to proceed. By contrast, Mr Merrick's

view was that he had right of way, and that that justified his actions or inactions that day.

He was cycling too fast. He did not anticipate any hazard whatsoever at the junction. He

did not adjust his speed and he did not monitor the NCR75 on approach to the junction.

He considered 20mph to be a perfectly reasonable speed. Had he been cycling more slowly,

anticipating hazards, and not overtaking on approach to the junction, it would have been

safe for Mr Dick to proceed and the accident would have been avoided. Accordingly, when

considering causative potency and blameworthiness, the balance tilted firmly in favour of

Mr Dick. There was more than sufficient width for two cyclists to pass on opposite sides

without incident. Had Mr Merrick been positioned on the left side of the NCR7 - as

Mr Howard was - there would have been no collision and the loss, injury and damage

sustained by Mr Dick that day would have been avoided entirely. The action which was

most causative of the collision was the action of Mr Merrick in overtaking Mr Howard in

close proximity to the junction. Altogether, the blameworthiness and causative potency

of Mr Merrick's conduct was greater than that of Mr Dick's by a considerable margin.

[65]

In Hernandez v Acar [2019] EWHC 72 (QB), Master Davison had stated:

"[42] ... To the extent that courts have on occasion found that one party's

'reckless' driving was the exclusive, proximate cause of an accident, that is not, as

I find, this case... The accident was the product of fault on both sides, the claimant's

in going too fast and the defendant's in not getting a proper view down [the main

road] before pulling out...

[43]

As with the decision in Jones v Lawton [2013] EWHC 4108 (QB), there is a

certain 'broad symmetry' between the faults of the claimant and the defendant. In

terms of culpability or blameworthiness, I would place a little more of the blame on

the claimant than the defendant. Although the [Highway] Code and the authorities

lay heavy emphasis on the duty of the motorist emerging from the minor on to the

major road, the fact remains that the claimant was doing around double a safe speed

for the conditions. However, as to causative potency, there is a significant difference

in the comparison, which (to borrow another phrase from the same case) 'tilts the

balance' back in favour of the claimant. As the Highway Code notes, motorcyclists

are vulnerable road users. In collisions with other motor vehicles it is the

motorcyclist who is liable to suffer significant injury and not the driver. That is an

unhappy feature of riding bicycles and motorcycles and is tragically illustrated by

the facts of this case."

[66]

Reference was also made to Worsfold v Howe [1980] 1 WLR 1175, [1980] RTR 131 and

to Heaton v Herzog [2008] EWCA Civ 1636, [2009] RTR 30.

Defender's submissions

[67]

Counsel for Mr Merrick submitted that decree of absolvitor should be granted, which

failing a finding of contributory negligence in the order of 90% should be made. Mr Dick

had offered to prove a specific set of circumstances, in particular that he was established on

the NCR7, and that the collision occurred 2 to 4 metres to the west of the metal posts. He

had not proved that case, and had not proved that Mr Merrick had acted negligently in the

circumstances. The evidence of Mr Merrick and Mr Howard should be preferred to that

of Mr Dick, meaning that the collision should be held to have occurred at the mouth of the

junction as Mr Dick left the NCR75, at a speed that allowed Mr Merrick insufficient time to

respond, rendering the accident unavoidable for him.

[68]

Mr Dick had been asked about entries in his medical records shortly after the

accident, in which it was noted that he did not remember much, that the circumstances

of the accident were unclear, and that he had lost consciousness. Given the severity of his

initial injury and the fact that his evidence was given 4½ years after the event, the court

should regard his memory of the accident as poor, and in particular should proceed on the

basis that he could not be sure that he had made the turn onto the NCR7. His evidence

regarding the use of the aerobars on his bicycle was inconsistent. He initially stated that

he was pretty sure that he had not been using them as he came down the NCR75, then

suggested that he had moved his hands to the aerobars when the collision was imminent.

The aerobars had no brakes. He had accepted that his body position was leaning forward

over the handlebars, covering the brakes. That was inconsistent with his evidence that the

impact occurred on his central core or chest. A more credible explanation for his low-profile

body position and speed through the junction was that he was using the aerobars with no

ability to brake. He accepted in his evidence that he was using them moments before the

collision and at the point of impact.

[69]

Mr Dick accepted that the representative speed adopted by Mr Franklin in his

report might not be accurate, and that he could have been going a little faster on the day.

His evidence was that his usual speed coming down that hill was 12-15mph. That would

be regarded as an uncomfortable speed by Mr Hill, who felt on the edge of his comfort zone

when performing a run through at lesser speeds. Mr Dick recalled seeing Mr Howard a few

metres away from him on the NCR7 before emerging from the NCR75. He did not recall

seeing Mr Merrick. No credible explanation had been given for that. Neither Mr Franklin

nor Mr Hill was able to provide such an explanation beyond the "eclipsing" of Mr Merrick

behind Mr Howard, which was speculative.

[70]

Mr Howard was the only independent witness to the accident. He was trying

his best to assist the court. The collision happened very quickly and to his surprise, so

it was understandable and reasonable that his recollection of events was not perfect.

Any inconsistencies in his evidence were not material. There were four key facts from

Mr Howard's evidence: (a) Mr Merrick had completed his overtake of Mr Howard before

the junction; (b) the collision happened in front of him; (c) the collision happened at the

mouth of the junction; and (d) as a result of the collision the parties were thrown into a

position approximately consistent with their agreed resting position. Further, his evidence

was that he was travelling slowly when overtaken but that the collision happened at speed

and that he was lucky not to have been injured by Mr Dick's actions in coming down the hill

and hitting Mr Merrick. He confirmed that he was not even sure that Mr Merrick knew

what happened.

[71]

Mr Franklin stated that there were no speed limits for bicycles on a cycle path. The

speed at which cyclists chose to ride was entirely a matter for them, taking into account

their experience and their perception of the hazards around them. He conceded in his

evidence that the methodology of estimating Mr Dick's speed of 13.4mph by way of the

reconstruction exercise was unreliable. The only explanation he could provide for Mr Dick

not seeing Mr Merrick when he looked to his right before emerging from the junction was

that the latter must have been masked by Mr Howard. That was not credible given the vast

number of variables involved. It was also inconsistent with the evidence of both Mr Merrick

and Mr Howard that the overtaking manoeuvre had been completed prior to the junction,

and the collision occurred when Mr Merrick was in front of Mr Howard. It was his evidence

that not every hazard on the road or cycle path was avoidable. He suggested that 10mph

would have been a reasonable speed for Mr Merrick to be travelling. That figure was not

justified with any literature or analysis. Even if Mr Merrick been passing through the mouth

of the junction at 10mph, and was faced with Mr Dick travelling at speed through the

junction, there was nothing he could have done to avoid the collision. Whilst Mr Franklin

was able to offer some evidence to the court that fell within the boundaries of his

qualifications, he opined on matters that were not within his area of expertise. He was not

qualified to speak to physics, yet attempted to perform various calculations based on speed,

time and lines of sight.

[72]

Mr Hill made a number of fundamental concessions that rendered the conclusions

in his report unreliable. Firstly, he did not know the respective weights of the parties and

their bicycles but conceded that variation in weight or speed would have had an effect on

the force of momentum and had not been considered by him. Secondly, his evidence was

that it would have taken 1.5 seconds for Mr Dick to travel the 9 metres where he was visible

to Mr Merrick on the NCR75 before reaching the junction with the NCR7. With an average

response time of 1 to 1.5 seconds, this evidence supported Mr Merrick's position that he had

insufficient time to observe and react to Mr Dick before the collision. Mr Hill went on to

accept that this calculation was based on his own model of a comfortable speed at 12.7mph.

At Mr Dick's assumed speed of 13.4mph, he would have been visible for even less time, and

less again at a higher speed such as his usual speed of 12-15mph when descending the hill.

Thirdly, Mr Hill confirmed that if he had been at an unmarked junction on a bicycle or in

a car, with the intention of turning into a live lane of traffic, and saw traffic, he would have

stopped. Fourthly, he accepted that riding with common sense on a cycle path would

dictate that one did not emerge from a junction when it was unsafe to do so. Fifthly, with

the view afforded to Mr Dick to the west of the junction, the only explanation he could think

of for why Mr Merrick was not visible was that he had been eclipsed by Mr Howard. He

conceded that it would have taken a very precise set of variables for that to be the case.

Sixthly, he accepted that Mr Dick had had a good view to the west from 10 metres short of

the junction and that he could have stopped within 8.2 metres of the junction had he applied

his brakes, thus avoiding the collision. Seventhly, he did not use aerobars when performing

his ride throughs at the locus. Given the concession by Mr Dick that he was using aerobars

prior to the collision, Mr Hill's thoughts on his ride-throughs were not a reasonable

comparison. Eighthly, he accepted that the speed calculation conducted by Mr Franklin

and Mr Dick was unreliable. Ninthly, he accepted that any physics-based calculations

that he undertook which incorporated that speed were unreliable as a result. Tenthly, he

performed a maximum cornering speed calculation at the junction and conceded that that

calculation assumed a comfortable coefficient, when there was no evidence to support that

assumption. In other words, if Mr Dick's speed on the day was not a comfortable speed,

Mr Hill's model was unreliable. Finally, the basic premise of his report was that

Mr Merrick's greater momentum would have driven Mr Dick backwards to the agreed

resting position of both parties, by some 5 metres or so. It was on that basis that Mr Dick

averred that the collision occurred 2 to 4 metres to the west of the pillars on NCR7, and that

he was therefore already established on the NCR7, having made his intended turn. Mr Hill

had conceded that that calculation was flawed, with no analysis performed to justify it.

He conceded that with the lack of detail available to him, he could not calculate anything

more precisely. He also conceded that the unknown nature of Mr Dick's speed made the

calculation impossible.

[73]

The concessions made by Mr Hill were fatal to Mr Dick's case. Mr Dick offered to

prove that the collision occurred 2 to 4 metres west of the posts on the NCR7 and accepted

that the final resting position of the parties was east of the pillars opposite the mouth of the

junction. Without scientific explanation justifying how parties had moved approximately

5 metres back along the path after the collision, Mr Dick could not prove his case. Mr Hill

conceded that his calculation on this point was fundamentally unreliable. His report could

not be relied upon.

[74]

The evidence of Mr Merrick was given in a clear and unambiguous way. He

made concessions where appropriate. He was not obstructive or evasive in his answers.

He accepted what he felt he could accept, but was firm and consistent in rejecting those

suggestions with which he disagreed. He first recalled seeing Mr Dick a split second before

the collision. That was consistent with the calculations of speed and visibility made by

Mr Hill. He remembered specifically how low Mr Dick was to the handlebars, which was

consistent with Mr Dick's own recollection of being low down and his evidence that his

hands were on the aerobars moments before the collision. Mr Merrick was clear throughout

his evidence that he had overtaken Mr Howard a safe distance from the junction, and had a

clear path ahead of him. That was consistent with the evidence of Mr Howard. When asked

about his speed on the day of the accident, he was clear that it was a comfortable speed. He

had his hands on the brakes as he always did and was ready to respond to a hazard if

necessary. He simply did not have time to respond to Mr Dick, consistent with the evidence

of Mr Hill. When asked about his Strava data he conceded that if his speed was accurately

noted there as 20.1mph, then he could not dispute it. However, no evidence was adduced to

explain what that 20.1mph figure meant, why it represented the locus speed of Mr Merrick,

or how it had been calculated. Those features rendered the Strava data relative to his speed

on the day unreliable.

[75]

There was an evidential inconsistency between Mr Howard and Mr Merrick in

terms of which side of the path the latter was on as he passed the mouth of the junction.

If Mr Merrick's general version of events was preferred to Mr Dick's, then irrespective of

which side of the carriageway Mr Merrick was on, the collision was unavoidable. Which

side of the path Mr Merrick was on at the point of the collision was relevant only if Mr Dick

had proved that he was established on the left-hand side of the NCR7 heading west and the

collision was collinear. He had not proved that.

[76]

As to Mr Merrick's speed, remark had already been made about the unreliability of

the Strava data. Mr Merrick was familiar with the route and had never had any problems

with the junction. He rode in such a way as to anticipate hazards, with his hands on the

brakes, and had a clear path ahead of him. The hazard on this particular occasion was

Mr Dick, who came at him with less than 1 second for him to observe and respond, and was

impossible to avoid. There was, further, no credible evidence before the court to suggest

that if Mr Merrick had been cycling at a lower speed he would have been able to avoid the

collision. There was no reliable evidence that his speed had contributed to the accident in

any way.

[77]

The evidence of Mr Merrick generally should be preferred to that of Mr Dick. There

was no dubiety in his recollection. He did not suffer any head injuries as a result of the

accident. He was conscious at all times immediately post-accident and gave evidence that

he directed Mr Howard to call 999 and raise the alarm that Mr Dick appeared not to be

breathing. His account was supported by his medical records, his injuries, Mr Howard's

recollection and the agreed resting position of the parties on the grass verge opposite the

junction. His account of the low profile of Mr Dick at the point of collision was supported

by Mr Dick's own acceptance that he was using the aerobars moments before the collision.

[78]

In summary, the court should find that, on approach to the junction between the

NCR7 and the NCR75, Mr Merrick overtook Mr Howard and completed that manoeuvre

before the junction, while the path ahead of him was clear. Mr Dick exited the junction

into the path of traffic and collided with Mr Merrick at the mouth of the junction. Mr Dick

and his bicycle collided with the left-hand side of Mr Merrick and his bicycle. Mr Dick was

using his aerobars immediately prior to and at the point of impact. The force of the collision

drove parties across the junction to their final resting position opposite its mouth. At

Mr Dick's estimated speed of 13.4mph, Mr Merrick had approximately 1 second to observe

and respond to him exiting the junction before the collision, and correspondingly less than

that if his speed was greater.

[79]

The conclusion which fell to be drawn from those circumstances was that Mr Dick

had failed to prove his case. He was the party who was turning across a live lane of traffic.

It was his duty to ensure it was safe to emerge. He failed in that duty and in so doing was

the sole cause of the accident. Mr Dick could have avoided the collision had he applied his

brakes when Mr Howard, and potentially Mr Merrick, became visible to him to the west of

the junction. Mr Merrick could not have avoided the collision. Failure to avoid a collision

did not mean that he had acted negligently. Some accidents were unavoidable. This one

was unavoidable because he was afforded less than a second to notice and respond to the

emerging Mr Dick. The duty incumbent on Mr Merrick was one of reasonable care, not

an absolute duty to avoid all hazards. There was no acceptable evidence that he had acted

unreasonably in the circumstances. Decree of absolvitor should be granted.

[80]

If Mr Merrick was found to have been in some way negligent, the court should

consider the actions of Mr Dick in comparison to his. There was no evidence that, had

Mr Merrick adopted a lesser speed on approach to the junction, the collision would have

been avoided. There was no speed limit on the relevant cycle path and Mr Merrick's

evidence was that he was cycling in a comfortable way, anticipating hazards with his

hands on the brakes. He had less than 1 second to notice and respond to Mr Dick. His

position on the carriageway was not material given he had a clear path ahead of him and

had completed his overtake. Mr Dick was the only party to the collision crossing a live

lane of traffic. He observed Mr Howard but not Mr Merrick to his right-hand side. He

could have stopped had he applied his brakes but did not. He emerged into the NCR7

when it was clearly unsafe to do so, whilst using the aerobars. The aerobars had no brakes,

so he had no control of his speed. His own speed estimation was an uncomfortable speed

according to Mr Hill, and it could have in fact been faster than that. There was only one

party to this action who could have avoided this collision and that was Mr Dick. If the court

was minded to apportion blame between parties, it should balance that apportionment in

such a way as to reflect the contributory actions of both parties. If Mr Merrick was in any

way to blame, he should be regarded as very substantially less to blame than Mr Dick, with

no more than a 10% attribution of liability.

Decision

[81]

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. 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. It is true that he

gave his evidence in a guarded manner, but I considered that that was only to be expected

given that he was being said to be responsible for the grievous injuries sustained by

Mr Dick.

[82]

Some attempt was made to use notes taken in hospital after the accident in relation

to both parties to cast more light on what might have happened. The parties agreed that

those notes were what they bore to be, but their authors were not called to speak to the

circumstances in which they were taken or how accurate they were intended to be. Neither

party had any (or at least any positive) recollection of having said the things apparently

attributed to him, which was hardly surprising given that both were at the time being

treated for serious injuries. Mr Merrick did not seek to dispute the accuracy of a note

suggesting that he had been travelling at more than 20mph at the time of the collision, but

beyond that I did not find the hospital notes to be of any particular probative value. The

same can be said for the content of the letter written by Mr Merrick's insurers' solicitors,

which he had not even seen before giving his evidence.

[83]

One might have hoped in such circumstances that the evidence of the sole

eyewitness to the accident would be of assistance. However, Mr Howard was a reluctant

and highly unsatisfactory witness. Despite warnings from me, he frequently interrupted

counsel's questions, or having apparently answered a question, paused momentarily before

commencing to ramble about a subject of his own choosing. Often the subject of the ramble

was his own health conditions, which, while no doubt of great moment to him, seemed to

have a decidedly limited relevance to the issues in dispute and to have been advanced in

the hope of even at that late stage somehow being excused boots. On the occasions when

he did seem to commit himself to some positive proposition, he immediately followed that

up by some remark which had the effect - and, it seemed to me, the purpose - of removing

any force from what he had just said. In these circumstances I place little credence in, and

absolutely no reliance on, his evidence. That extends to not regarding the evidence of

any other witness as corroborated by happening to coincide with his, or as undermined

by differing from his, in relation to any matter. Again, no evidence about statements

supposedly made by him outside the witness box was given by those who took the

statements, and he at least affected not to recall having given them, contradicting their

contents liberally where he seemed to have committed himself to anything remotely

definite. It seemed to me that his unwillingness to be involved in any legal (or other)

ramifications of the accident started as soon as it had occurred. I place no weight on the

content of those statements.

[84]

I regarded Mr Franklin's evidence as credible and generally reliable, although on

questions of distance and sight lines at the junction I preferred that of Mr Hill, as having

been obtained in more precise ways. Overwhelmingly, the nature of his experience of

cycling safety issues generally made it difficult to conceive of someone more suitably

qualified to speak of them, in particular the safe speeds at which each party could have

travelled. The one part of his evidence which I did not consider reliable was that concerning

the video taken (without his involvement) on 10 March 2020. I consider that he was rather

unwisely drawn into commenting, and in effect speculating, on what could be made of the

content of that video, and ultimately I understood him to agree with that point of view. I

thus leave that chapter of his evidence out of account, but do not consider that it detracts in

any way from what else he had to say.

[85]

Mr Hill was a most impressive expert witness, amply qualified and experienced in

the matters to which he spoke, and plainly independent of those instructing him. That

does not mean, however, that I found all of his evidence to be ultimately persuasive. In

particular, his evidence about the application of the laws of momentum and the significance

of the resting places of the parties after the collision appeared to me to be attended by a

number of imponderables, and dependent on such assumptions, as to render it of little

weight in determining the mechanism of the collision. Again, however, I did not consider

that the difficulties with that chapter of Mr Hill's evidence detracted from the other matters

upon which he opined.

[86]

Against that background, the key piece of evidence as to the mechanism of the

collision is the clear opinion of both Mr Franklin and Mr Hill 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, was supported by a clear explanation of where the

strength and weakness of a spoked wheel lie, and is readily comprehensible. No contrary

evidence was led. 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. That conclusion does not enable an exact

ascertainment of the place where the collision occurred, beyond that it was probably close

to (but could have been either east or west of) the metal posts on either side of the NCR7.

It equally does not enable a determination to be made as to whether, when the collision

occurred, Mr Merrick was on the northerly or southerly side, or indeed in the middle, of

the NCR7. For reasons shortly to be stated, I do not consider that an inability to determine

those things affects the decisions I have to make in any way. I also hold, on the basis of

the evidence of Mr Hill and that of both parties, that the primary collision was between

the bodies of the parties, being the right-hand side of Mr Dick and the left-hand side of

Mr Merrick, rather than between their bicycles. It was accepted by Mr Dick that he was

adopting a low riding position on his approach to the locus and that at the point of the

collision at least he was holding the aerobars. There is no evidence which enables a firm

conclusion to be drawn as to whether he was using the aerobars on approach, but again I

do not consider that that makes any material difference to the assessments of liability and

contribution which I have to make.

[87]

It is fundamental to the proper resolution of this case to appreciate that the NCR7

and the NCR75 are not roads, and that any attempt to treat them as if they are, and to apply

to them the rules or conventions of the road, is entirely misconceived. Indeed, it is not even

strictly correct to describe them as cycle paths. They are simply paths, open to cyclists as

well as to anyone else who wishes to use them other than by way of motorised vehicles, be

that pedestrians, children on scooters, teenagers on skateboards, or mothers pushing prams.

Their users can be young or old, nimble or lumbering, able to see and hear well or not, alert

to their surroundings or lost in their favourite music or a podcast on their headphones.

There are no lane markings indicating that particular categories of user should only occupy

certain parts of the path, or that cyclists travelling in one direction should use one section

of the path and those going the other way a different one. Indeed, every user of the path is

perfectly entitled to use any part of it, just as it pleases him or her. There are no priorities,

either as between categories of user or within one category. Pedestrians occupy no lesser

place in the hierarchy of users than cyclists. Every user must respect the interests of every

other user.

[88]

It is against that background that the behaviour of the parties to this action must

be assessed. Starting with Mr Merrick, as the party being blamed for the accident in this

process, I find, firstly, that he was travelling along the NCR7 before the accident at a speed

of around 20mph. Although no attempt was made to establish the provenance of the Strava

data presented to him, it was not objected to, and the suggestion frankly made to him that

he was riding at a speed of 20.1mph just before the collision was met with an implicit if not

quite express acceptance. He did not consider that that was a fast speed. In that he was

entirely wrong. I accept the evidence of Mr Franklin that it was about twice the safe speed

of 10mph at the location in question. I have already touched upon the reasons why a speed

of 20mph or so was excessive. Put short, it did not enable Mr Merrick any margin to react

safely to any of the eminently foreseeable hazards which might crop up along the path he

was travelling. In the event, it was Mr Dick's unobserved approach to and exit from the

NCR75 junction onto the NCR7 which constituted the hazard that Mr Merrick's speed

deprived him of the opportunity to respond to safely. It could just as easily have been a

child running out excitedly from the NCR75 junction, or Mr Howard falling off his bicycle

ahead of him, or any number of other foreseeable eventualities.

[89]

The other way in which Mr Merrick was at fault (although it operated in conjunction

with, rather than separately from, his excessive speed) was in not keeping an adequate

lookout ahead. The parties were visible to each other from the point at which Mr Dick

passed the goat willow tree 9 metres before the threshold of the junction of the NCR7 and

the NCR75. Given the speed at which both parties were travelling, it was possible for either

or both of them to have taken action at that stage to avert the collision. The slower either

of them had been moving, the greater that opportunity would have become. However,

Mr Merrick did not see Mr Dick on the NCR75 at all. He did not see him until he had

rounded the corner of the junction and was practically upon him. That happened because

Mr Merrick, in addition to going far too fast, was not exercising reasonable care to observe

the path and in particular the junction which he knew lay ahead of him. He saw no need to

do so, conceiving wrongly that he had the right of way and imagining without any proper

basis that other users of the path would share his view about that and act accordingly. In

respect of his chosen speed and his deficiencies in keeping a good lookout, Mr Merrick's

actions represented failures to take reasonable care for the safety of other path users, in

particular Mr Dick. Those failures caused or materially contributed to the collision and to

the loss, injury and damage which flowed therefrom.

[90]

I do not consider that any separate criticism can be made of Mr Merrick's overtaking

manoeuvre or his supposed failure to move back to the northmost side of the path

sufficiently quickly before approaching the junction. He was entitled to overtake

Mr Howard so long as he did not endanger any other users of the path in doing so, and

the details of when and where he carried out his manoeuvre are not sufficiently clear to

justify a conclusion that he breached any duty of care incumbent upon him in that regard.

Equally, he was entitled to cycle to the north, south or middle of the path, subject to the

same condition. Put another way, Mr Dick was not entitled to suppose that any traffic (of

whatever sort) that he might encounter upon making his turn onto the NCR7 would be

on the northmost part of the path. Any criticism that might be made of Mr Merrick being

on the southern part of the path, or indeed in the middle of it, after having overtaken

Mr Howard, ultimately resolves itself into the same issues of failing to keep an adequate

lookout and maintain a reasonable speed already canvassed.

[91]

Turning to Mr Dick, his conduct may be criticised on much the same grounds. As

to his speed, while recognising the limitations of the reconstruction exercise which took

place, I am prepared to accept the result it produced, 13.4mph, as representing a reasonable

estimate of how fast he was travelling down the slope of the NCR75 towards the junction.

Again, that was at least broadly speaking twice the safe speed as spoken to by Mr Franklin,

whose evidence on that matter I accept. Such an excessive speed may be criticised on the

same grounds as was Mr Merrick's speed; essentially, it did not give him time to assess

and react safely to the presence and behaviour of other users of the path. Mr Dick ought to

have been travelling at a speed which would have allowed him both to ensure that he could

assess adequately the presence of other path users on the NCR7 and also that he could stop

comfortably at the junction if necessary. A stop might have been required, not because any

traffic on the NCR7 had any particular priority over him, but simply because the presence of

other path users at or around the junction might have required it.

[92]

Likewise, Mr Dick did not keep an adequate lookout as he approached the junction.

In part at least, that was because the speed of his approach did not permit him sufficient

time to do so once he had passed the goat willow tree. He failed to see Mr Merrick, who

was within his field of vision. If it was at any point the case that Mr Merrick was obscured

behind Mr Howard, that situation - given their respective speeds - cannot have pertained

for more than a moment, again emphasising the inadequacy of Mr Dick's survey of what

was happening on the NCR7 before bowling into the junction. Whether he was using the

aerobars on his approach to the junction, thereby rendering it impossible for him to brake

quickly, or whether he was in a position to use the brakes but did not do so, either at all

or sufficiently, are matters which are all subsumed into the greater criticism that his speed

approaching, going through and exiting the junction was excessive throughout.

[93]

In the regards set out, Mr Dick's actions represented failures to take reasonable

care for his own safety (and that of other path users). Those failures caused or materially

contributed to the collision and to the loss, injury and damage which followed thereon.

[94]

As to the apportionment of responsibility for that loss, injury and damage, this was

a multi-factorial accident. Those factors were the speed of both riders, and their respective

failures to maintain an adequate lookout when approaching the junction. 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. Neither was more vulnerable than the other. In these circumstances I

consider it just and equitable to hold Mr Dick 50% responsible for his own loss, injury and

damage. Any damages found ultimately to be due to him shall fall to be reduced to that

extent, all in terms of section 1 of the Law Reform (Contributory Negligence) Act 1945.

Conclusion

[95]

I shall find that the loss, injury and damage suffered by Mr Dick was caused or

materially contributed to by Mr Merrick's fault at common law, but that it was also

materially contributed to, to the extent of 50%, by his own fault. The case will be continued,

if necessary, to an assessment of the quantum of the damages due.