One of the dangers for commuters cycling along the embankment on London’s East-West Cycle Superhighway is hitting a pedestrian as they cross the cycle path. Frequently, pedestrians cross without looking, and even if they do look, they can sometimes look the wrong way before stepping into a cyclist’s path. Of course, this can happen almost anywhere in a busy town or city.

If a cyclist is seriously injured by a pedestrian, what is the cyclist’s recourse to the law?

The difficulty with suing an individual who is not insured, as is the case for most pedestrians, is that they are unlikely to be able to afford to pay a claimant’s damages and legal fees. This in turn means that such claims are not worth pursuing for either the injured cyclist or their solicitors. Even if the pedestrian has assets, such as owning their own home, a court will rarely make an order for sale of a property, particularly if other people are living there.

A resourceful solicitor might consider if an insurer could cover the pedestrian in other ways. For example, if it can be proved that the pedestrian used a vehicle in the course of his actions, then he could be covered under motor insurance. In Wastell v Woodward & Chaucer Syndicates [2017], although the accident involved a motorcycle, the principle could also be applied to a cyclist. The case involved a defendant who owned a hamburger van which was parked in a layby from where he traded. He placed a sign advertising his burger van on the opposite side of the road and then stepped out into the road to return to his van, but as he did so, he collided with the claimant’s motorcycle, causing the rider serious injuries. The judge concluded that the actions of the defendant and the subsequent accident were closely linked to the use of the van, and so the matter fell under Section 145(3) of the Road Traffic Act 1998. The act states that insurance must be taken out in respect of accidents that result in death or personal injury ‘caused by, or arising out of, the use of the vehicle on a road or other public place’.

Another alternative might to be to establish if the pedestrian was somehow acting in the course of his employment in order potentially to sue the (presumably insured) employer for vicarious liability. In the case of Fletcher v Chancery Lane Supplies Ltd [2016] a cyclist collided with a pedestrian who worked for a company which had premises on either side of the road. The pedestrian then walked into the path of the cyclist as he crossed from one side of the road to the other. At first instance the court found for the claimant and decided that the defendant company was vicariously liable for the pedestrian’s actions because he was wearing his company uniform and gave his address as the office. However, the decision was reversed on appeal because the pedestrian had not provided evidence at the trial and so there was no indication that his purpose for crossing the road was related to his employment. Although this case failed, it highlights the importance of obtaining clear evidence as to the purpose of the pedestrian’s actions and the necessity of linking actions directly, rather than inferentially, to the pedestrian’s employment. A claimant needs to demonstrate a close connection between the negligent conduct and the position for which the employee was employed. In this example, perhaps if the pedestrian was making a delivery or even reading office emails on a mobile phone at the time of the incident, a more convincing connection to his employment might have been made.

Charles O’Brien, senior associate in Penningtons Manches’ personal injury team, comments: “These examples demonstrate that cases against pedestrians who have collided with cyclists may not always be fruitless. On closer review of the circumstances, it may be possible to identify a claim for insurance. However, to succeed in proving that pedestrians caused an accident whilst using their vehicle or in the course of their employment, strong and specific evidence is required.”