Earphone wearing cyclist fails in damages claim

A Sheriff has held a cyclist was entirely to blame for her own accident following a collision with a bus in Glasgow in 2014.

In Roksanan Gajdamowicz v First Glasgow Limited & Anr [2017] SC EDIN 43 a Sheriff absolved both the bus company and bus driver from liability and held the accident was caused by the sole fault of the Pursuer.

Quantum in the case had been agreed at £30,000 inclusive of interest to the date of Proof and the matter proceeded to a hearing on evidence on the issue of liability only.

The Pursuer’s case was that the front of a double decker bus had collided with the rear of her bicycle whilst attempting to carry out an overtaking manoeuvre and that the accident would not have occurred had the bus been driven at an appropriate distance and allowed sufficient room before attempting the manoeuvre.

In defending the action the Defenders argued the Pursuer had swerved her bicycle to the right into the path of the bus without any signal or prior warning (including a failure to look behind her) thus there was insufficient time for the bus driver to avoid a collision with the Pursuer’s bicycle.

Unfortunately the Pursuer suffered retrograde amnesia as a result of the accident meaning her recollection of events was adversely affected. However the Defenders had lodged CCTV footage of the accident which the Pursuer gave evidence on.

The Pursuer was shown the CCTV footage a number of times but never truly accepted that she steered to the right into the path of the bus immediately before the accident.

The Sheriff concluded the footage showed the Pursuer steering towards her right-hand side in a manoeuvre which lasted less than two seconds. It was held she did not check for traffic or signal her intention to steer to the right and at no stage was the Pursuer aware of the bus travelling behind her.

The bus driver gave evidence to the effect that he required to remove earphones from the Pursuer’s ears in order to speak to her whilst she was lying injured on the ground after the collision. The Pursuer however denied wearing earphones and in cross examination said she did not listen to music and was not a music person. The Pursuer did accept she was not aware of or heard the bus at any point prior to the accident.

The Sheriff accepted and preferred the evidence of the bus driver that he did remove earphones from the Pursuer’s ears in order to communicate with her. No other credible explanation had been put forward as to why the Pursuer apparently did not hear the bus approaching from behind her. The Sheriff considered the likely reason the Pursuer had not heard the bus travelling behind her was due to her wearing earphones.

On the evidence the Pursuer failed to establish the bus driver had failed to allow sufficient room between the bus and her bicycle whilst overtaking. It was held the bus driver had insufficient time to avoid colliding with the Pursuer when she moved to the right with no prior warning or without checking for traffic behind her.

It is clear the CCTV footage in this case was a vital piece of evidence in the defence of the action and shows that video footage of an accident, such as dash cam footage, can make all the difference in the successful defence of a claim.

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