Driving Without Due Care & Attention - Plea advice
Discussion
HughG said:
A (hopefully) quick question about what plea a good friend of mine should make.
A few months ago he was leaving a dual carriageway by turning right across the opposite 2 lane. The 2 oncoming lanes were queuing with solid traffic. It was evening rush hour after dark. He is given a gap by the 2 oncoming cars, so edges across the 2 lanes, and as he crosses the gap between the verge and lane 1 a cyclist strikes the front left of his car and is thrown over the bonnet.
Cyclist wasn't wearing a helmet and suffered a minor skull fracture but no other or lasting injuries. Cyclist was wearing a hi-vis vest but it was open and flapped back so not exposing any reflective. There was a strobing front light on the bike.
Police attend and take statements from 2 cars, one of the front row and one a few cars back. The nearer car says he was edging across carefully, the one further back says they couldn't really see but he crossed faster than walking pace but slower than the queuing traffic.
He maintains he was crossing slowly
He was reported for Driving Without Due Care and Attention, and sought some legal advise which advised him to plead guilty as the court rarely take any mitigation in these circumstances because the accident is all the proof needed of insufficient care/attention. He entered a guilty plea online.
He just recently heard that the case was adjourned, and has received the following letter:
If anyone has any direct experience of a similar situation their thoughts on how to plea would be appreciated.
Thanks
I’m just going to reference the bit in bold and say. Your “friend” can describe this about the cyclist, but still chose to pull across his path and collide with him. HmmmmmA few months ago he was leaving a dual carriageway by turning right across the opposite 2 lane. The 2 oncoming lanes were queuing with solid traffic. It was evening rush hour after dark. He is given a gap by the 2 oncoming cars, so edges across the 2 lanes, and as he crosses the gap between the verge and lane 1 a cyclist strikes the front left of his car and is thrown over the bonnet.
Cyclist wasn't wearing a helmet and suffered a minor skull fracture but no other or lasting injuries. Cyclist was wearing a hi-vis vest but it was open and flapped back so not exposing any reflective. There was a strobing front light on the bike.
Police attend and take statements from 2 cars, one of the front row and one a few cars back. The nearer car says he was edging across carefully, the one further back says they couldn't really see but he crossed faster than walking pace but slower than the queuing traffic.
He maintains he was crossing slowly
He was reported for Driving Without Due Care and Attention, and sought some legal advise which advised him to plead guilty as the court rarely take any mitigation in these circumstances because the accident is all the proof needed of insufficient care/attention. He entered a guilty plea online.
He just recently heard that the case was adjourned, and has received the following letter:
Magistrates Court letter from the Legal Adviser said:
You entered a guilty plea online to the offence of Driving without Due Care and Attention on (date). However in your mitigation you state that you were not driving in a reckless manner and that you do not believe that you could have exercised this manoeuvre any more carefully than you did. These comments suggest that the correct plea would be one of not guilty.
That magistrates therefore wished to give you the opportunity to enter a not guilty plea to the offence. It is a matter for you to decide whether you want to change your plea.
This has made him question the advice he was given previously. That magistrates therefore wished to give you the opportunity to enter a not guilty plea to the offence. It is a matter for you to decide whether you want to change your plea.
If anyone has any direct experience of a similar situation their thoughts on how to plea would be appreciated.
Thanks
Also, love the “........ cyclist strikes the front left of his car......” it’s pretty obvious why he’s at fault amd also why your friend’s plea hasn’t been accepted.
Thanks for all the responses, he has seen this thread and is getting further advice before deciding his plea but he is tempted to have his day in court.
As it has come up, the cyclist has engaged a no win no fee solicitor who have contacted his insurer. This thread wasn’t meant to be about that.
Gavia said:
The OP is confused and thinks that by proving they weren’t fully protected that this gets him off everything. It doesn’t.
Maybe I was ambiguous, but my intention was to ask how to Plea given a set of circumstances, the advice he had been given to date, and a letter from the court which was making him doubt that advice. AGTlaws post is particularly helpful as it confirms why he has received the letter. As it has come up, the cyclist has engaged a no win no fee solicitor who have contacted his insurer. This thread wasn’t meant to be about that.
Given what you’ve described he is most likely to be found guilty. His plea hasn’t been accepted for the reasons I gave earlier. You can not plead guilty, but then try to qualify it to really claiming to be not guilty.
If he does have his day in court, then if found guilty the punishment will be more severe, as he doesn’t get the discount for an early guilty plea.
Even if he does have his day in court and is found not guilty, the insurance claim is most likely to go against him, as the burden of proof is much lower, that being balance of probability vs beyond reasonable doubt.
If he does have his day in court, then if found guilty the punishment will be more severe, as he doesn’t get the discount for an early guilty plea.
Even if he does have his day in court and is found not guilty, the insurance claim is most likely to go against him, as the burden of proof is much lower, that being balance of probability vs beyond reasonable doubt.
x type said:
No , cyclist should obey highway code and not undertake cars
not drivers fault
What does the highway code say about cyclist over/undertaking cars? I think you will find they are allowed to do this. Now I think the cyclist should have been more aware of what is going on but that is different the law.not drivers fault
Gavia said:
Given what you’ve described he is most likely to be found guilty. His plea hasn’t been accepted for the reasons I gave earlier. You can not plead guilty, but then try to qualify it to really claiming to be not guilty.
If he does have his day in court, then if found guilty the punishment will be more severe, as he doesn’t get the discount for an early guilty plea.
Even if he does have his day in court and is found not guilty, the insurance claim is most likely to go against him, as the burden of proof is much lower, that being balance of probability vs beyond reasonable doubt.
OP, follow this advice. If he does have his day in court, then if found guilty the punishment will be more severe, as he doesn’t get the discount for an early guilty plea.
Even if he does have his day in court and is found not guilty, the insurance claim is most likely to go against him, as the burden of proof is much lower, that being balance of probability vs beyond reasonable doubt.
Your "friend" will likely be found guilty, and pay more costs.
Cyclist was filtering legally, with a light. They were then hit by a car. If the driver did not see them, then the Court may find that is evidence in of itself that the standard fell below required.
janesmith1950 said:
I doubt the OP's friend's insurer will put up much of a fight on liability but the helmet missing might mean there's some apportioning to the split of damages.
I doubt it. Insursance companies regularly try to have damages reduced when a cyclist was not wearing a helmet. Other than one exceptional case this always fails. As per this blogpost by Martin Porter QC - " Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:
The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case."
http://thecyclingsilk.blogspot.co.uk/2015/06/anoth...
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.irc said:
I doubt it. Insursance companies regularly try to have damages reduced when a cyclist was not wearing a helmet. Other than one exceptional case this always fails. As per this blogpost by Martin Porter QC -
" Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:
The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case."
Problem in the cited was the lack of evidence adduced, rather than it being the case that contributory negligence could never be shown." Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:
The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case."
Edited by Integroo on Friday 6th April 18:39
irc said:
I doubt it. Insursance companies regularly try to have damages reduced when a cyclist was not wearing a helmet. Other than one exceptional case this always fails. As per this blogpost by Martin Porter QC -
" Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:
The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case."
http://thecyclingsilk.blogspot.co.uk/2015/06/anoth...
It looks as though you've misunderstood what is also likely to be a somewhat partisan blog post. " Of wider application was the further example of the Court refusing to make any finding of contributory negligence in relation to a cyclist not wearing a safety helmet. the Judge said this:
The Defendant also pleads, at paragraph 11 (d) of the Defence, that the Claimant was negligent in failing to wear a cycle helmet. This was not explored in the evidence and Mr Freeman made no submissions upon it in his closing arguments. As Mr Martin observed, no court has yet decided that failing to wear a helmet actually amounts to contributory negligence, although they have come close (see Smith v Finch [2009] EWHC 53 (QB)). In the present case the Claimant was an adult enjoying a bicycle ride in the countryside on a sunny day. There was no medical evidence adduced to show that failing to wear a helmet made the Claimant's injuries worse, and the subject was not addressed in submissions. I therefore reject that allegation of contributory negligence in this case."
http://thecyclingsilk.blogspot.co.uk/2015/06/anoth...
If there are head injuries and it can be proven that in not wearing a helmet the cyclist failed to protect themselves adequately, and that the failure contributed to the injury, then there may be contributory negligence.
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
gazza285 said:
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
This, I cycled to work for 2 years and if I had not exercised such caution I would have been a regular visitor to hospital. The cycle lane also is broken across the junction which should give an indication to be cautious. On the flip side as a car driver I would be extremely vigilant because its an accident waiting to happen. 48k said:
gazza285 said:
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
The fact of the matter is, the cyclist is on the major road, the car driver is on the minor road.
The cyclist has right of way, and it's for the driver pulling out to give way to any traffic on the major road, including bicycles - The cyclist is under no obligation to have to slow down to let a car pull out from a minor road, as some on here seem to think.
Trying to blame the cyclist for this incident is frankly ridiculous!
4rephill said:
48k said:
gazza285 said:
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
The fact of the matter is, the cyclist is on the major road, the car driver is on the minor road.
The cyclist has right of way, and it's for the driver pulling out to give way to any traffic on the major road, including bicycles - The cyclist is under no obligation to have to slow down to let a car pull out from a minor road, as some on here seem to think.
Trying to blame the cyclist for this incident is frankly ridiculous!
48k said:
gazza285 said:
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
gazza285 said:
48k said:
gazza285 said:
herewego said:
48k said:
I'm not defending the car driver but if I was cycling along past two lanes of stationery traffic and reached a junction I'd like to think I wouldn't be going so fast that if someone pulled across me I'd be thrown over the bonnet.
I agree. The cyclist should have seen that the cars to his right had left room at the junction for vehicles to cross and slowed sufficiently to ensure everyone had time to negotiate.How fast was the cyclist going?
Actually - don't feel obliged to answer, I can see where this straw man is going. Ahhm ooot.
Edited by 48k on Saturday 7th April 15:04
pretty sure if it was two vehicles colliding in a similar situation insurance would go 50:50
cyclist should have been more aware of the junction, driver should have been a bit more cautious
the cyclist hit the car, the car didn't hit the cyclist
don't expect to be popular with this view
cyclist should have been more aware of the junction, driver should have been a bit more cautious
the cyclist hit the car, the car didn't hit the cyclist
don't expect to be popular with this view
21TonyK said:
pretty sure if it was two vehicles colliding in a similar situation insurance would go 50:50
cyclist should have been more aware of the junction, driver should have been a bit more cautious
the cyclist hit the car, the car didn't hit the cyclist
don't expect to be popular with this view
You think a vehicle turning across a dual carriageway, across the path of another vehicle, would go 50/50?cyclist should have been more aware of the junction, driver should have been a bit more cautious
the cyclist hit the car, the car didn't hit the cyclist
don't expect to be popular with this view
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