Jason Moffat v Zenith Insurance Plc [2018] SC EDIN 39


This case arose from a collision between a cyclist and car.It went to proof (trial) in the All Scotland Personal Injury Court (ASPIC) where Sheriff McGowan found the car driver was not to blame at all. Such a finding is unusual; all road users have a duty to take care but often courts find that drivers of motor vehicles bear more responsibility than pedestrians or cyclists.

Facts and circumstance

The accident occurred on Dundas Street in Edinburgh where the car driver was turning left. The claimant, Mr Moffat, was cycling behind the car driver He was cycling at about 30mph and attempted to undertake the car on its nearside. The car turned left and there was a collision causing injury to the cyclist.

Although the car driver said that he was indicating left, the cyclist denied seeing such a signal.

The Burden on the Driver

Sheriff McGowan did not accept that there was a general presumption in favour of cyclists when they are involved in collisions with cars. In this case, the driver had fulfilled his legal obligation to exercise reasonable care by checking his mirrors and his blind spot prior to turning left. Although it did not arise in this case because the cyclist was not in view when the car turned; Sheriff McGowan went on to emphasise that where the driver of a car should pay attention to other road users, this cannot be to the exclusion of paying attention to what is happening (or may be about to happen) elsewhere. He relied upon the English case Ahanonu v South East London & Kent Bus Company Ltd [2008] EWCA Civ 274 where it was found that driving does not need to comply with "a counsel of perfection."

Contributory Negligence

Although Sheriff McGowan rejected the cyclist's case, he commented briefly on contributory negligence. On accepting the evidence that the driver was indicating left at the time, Sheriff McGowan would have found the cyclist to have contributed to the accident for the following reasons:

  1. if the cyclist was unsure of the driver's intentions, he ought to have been on his guard and moderated his speed;
  2. it was negligent for the cyclist not to have anticipated carelessness by other road users;
  3. the cyclist had said in his own evidence he was paying more attention to the road (to avoid pot holes) than he was to the road users around him;
  4. the cyclist had attempted to "undertake."

Sheriff McGowan would have deducted one third of damages, had the driver been negligent.

Liability of Cyclists and Drivers

Sheriff McGowan's approach is rare in circumstances where collisions take place between vehicles and more vulnerable road users such as cyclists. It will be useful in future cases where the evidence demonstrates negligence on the part of the cyclist, and it can be shown that the driver has proceeded with caution. In any event, this case is useful authority that drivers should not be held to a "counsel of perfection".


Kate Donachie

Legal Director

Emma Dyson