child cyclist versus car - liability?

[wednesday]

My god-daughter is aged 7. She lives in a horseshoe cul-de-sac. She was cycling (albeit illegally) on the footpath. A car turned into the cul-de-sac and then turned into its drive. My god-daughter didn't have time to stop and struck the vehicle, (I'm uncertain at the moment whether it was the front or rear passenger door.) Who is liable? My friend is wondering whether to offer to pay for any damage to the vehicle?

 

[DB74]

Well I wouldn't be offering anyway

 

[Rebuttal]

No, the child is not liable, the vehicle has to have third party insurance at a minimum. This is for situations as you have just described. In fact, it could be argued that the driver could be found guilty of careless or even dangerous driving in the manner in which he turned into his driveway, as when he did this, he was crossing a public pathway and should have been aware of other persons in the vicinity when making this manoeuvre. Indeed, the fact that your Godchild did not have time to stop is very unsettling.

 

[wednesday]

thanks for that DB74 although it doesn't address the liability issue.

Rebuttal, this was my thoughts too. She had concussion, lost a baby tooth and another tooth cut right through her cheek. My friend took her to caredoc on Saturday evening and took her to the dentist this morning and she's too swollen to x-ray yet - turns out she now has a gum infection and is on an antibiotic. Her bike is fairly totalled too. The driver hasn't been in touch with my friend as yet to check on the wellbeing of my god-daughter.

 

[mathepac]

This is where the adversarial system, in law and insurance, dehumanizes human relationships. If the driver has contacted his insurance or legal adviser, he has undoubtedly been told to avoid contact or anything that might be construed as an admission of fault or liability. Asking how the child is or any expression of empathy for her or with her parents might just be seen as enough of an admission to have the insurance walk away and leave his personally liable. The sooner we can get to no-fault insurance the better. The lack of contact does not necessarily make him a demon.

I hope the child recovers fully, physically and mentally. I wrote recently about out residents' association advocating for money for more speed-ramps in our estate, also cul-de-sac with two loops, one in the middle one at the end. The ramps are at the entrance from the main road. The ramp advocates are the parents who turn their kids out on the street riding, cycling, boarding, skating, chasing, footballing, hurling, etc. Not one of the kids wears a reflective jacket or helmet (apart from the hurlers), not one of them has a light attached to their bike, not one of them has a clue about the rules of the road or road safety for pedestrians and there is never any sign of a parent, unless it's to supervise / train / referee the hurlers or footballers. Keeping track of the kids is up to the kids e.g. "Fantawanta have you seen Chlamydia tonight? Tell her to come home if you do."

They have now posted notices for the drivers to "Beware - Children Playing". Why not signs for the kids

"Beware - this is a footpath for walking on"

or

" Beware this is a public roadway, know the rules before you use it."

 

[peteb]

No, the child is not liable, the vehicle has to have third party insurance at a minimum. This is for situations as you have just described. In fact, it could be argued that the driver could be found guilty of careless or even dangerous driving in the manner in which he turned into his driveway, as when he did this, he was crossing a public pathway and should have been aware of other persons in the vicinity when making this manoeuvre. Indeed, the fact that your Godchild did not have time to stop is very unsettling.

What are you talking about? How is third party cover for situations like this? The bike hit the car, not the other way around.

 

[cremeegg]

If your goddaughter was more seriously hurt it really would make no difference who was legally liable.

Parents who let kids out on the roads when the kids are too small to mind the traffic are bad people.

 

[DB74]

I have to say that the attitude of some people on this thread is incredible. We have a situation where a 7yo child was cycling on the footpath in her cul-de-sac and someone drove into the cul-de-sac and then proceeded to pull into their drive, completely ignoring the fact that a child was cycling nearby and then child then couldn't stop in time and hit the car, lost a tooth, another tooth went through her cheek and now she has a gum infection. A few seconds later and the child could have been killed

And people here are complaining about the parenting!

Thousands of kids play out in their estates every day, yes probably most of them don't obey the rules of the road 100% of the time, they are KIDS for God's sake, is it too much to ask that people slow down and be vigilant when driving through these estates. Is it too difficult for someone when pulling into their drive to have a quick glance up and down the road to make sure that they are not going to cause an accident.

Is that what we've come to now, "well I'm in the right so I'll do what I want", whatever happened to having a bit of cop-on

 

[mathepac]

Exactly DB74. Parents, so called, abdicate all responsibility for their child's safety and well-being to someone else, unknown and unidentified. If the unfortunate child is injured as in this case, it's "someone else's" fault. Why can't parents face up to their responsibilities for their children by supervising at play? Apart from motorists who wish to use the public roads to drive on untrammelled, there are other dangers children face these days, from potential abductors or abusers. Protecting children from these dangers is also "someone else's" responsibility I take it, maybe even the motorists.

Knowledge and use of the Rules of the Road, lights, helmets, hi-vis vests, knee and elbow protectors and appropriate supervision that's all that's needed to keep children safe from the evil motorist. Equipping and supplying all the prerequisites are the responsibility of the parents.

 

[odyssey06]

Really we don't have enough information to go on...

Were there parked cars obstructing the view of the driver so that the bike "appeared out of nowhere"?

If the driver had a clear view they should have seen the cyclist, and then I would expect that the courts would hold the driver mostly liable but usually in these scenarios the fact that the bike was being ridden technically illegally would see the cyclist partially liable (some percentage less than 50%).

If the driver could not have seen the cyclist and took reasonable precautions to ensure their way was clear before attempting the maneuver then I would be surprised if a court found them liable.

Note that I have no legal training, this is just from past readings of court reports in the media for these kind of claims.

 

[Páid]

In my view the driver is totally at fault. You always take extra care when driving near children. Also, the driver must have seen the child given that they were pulling into a driveway. If it had been a pedestrian on the footpath the driver should have yielded right of way.

From the Rules of the Road

Children
By their nature, children have less experience than other people in using the road, so you should make extra allowances for their behaviour.
Take care when you are:

• driving beside footpaths where there are young children,
• coming out from side entrances or driveways,
• driving in car parks,
• and reversing, in particular where there are young children.

You cannot see a small child behind your vehicle through your mirror. If in doubt, get out and check.

and

Be careful near children who are cycling. Take extra care near a school, where cyclists may emerge in groups. Remember, it is hard to predict a young cyclist’s balance and behaviour.

 

[DB74]

Exactly DB74. Parents, so called, abdicate all responsibility for their child's safety and well-being to someone else, unknown and unidentified. If the unfortunate child is injured as in this case, it's "someone else's" fault. Why can't parents face up to their responsibilities for their children by supervising at play? Apart from motorists who wish to use the public roads to drive on untrammelled, there are other dangers children face these days, from potential abductors or abusers. Protecting children from these dangers is also "someone else's" responsibility I take it, maybe even the motorists.

Knowledge and use of the Rules of the Road, lights, helmets, hi-vis vests, knee and elbow protectors and appropriate supervision that's all that's needed to keep children safe from the evil motorist. Equipping and supplying all the prerequisites are the responsibility of the parents.

How do you propose a parent supervises their young child while they are out cycling? Should they run alongside them up and down the road (or footpath). Children on my road cycle up and down it every evening while their parents stand outside watching them. I'm not sure what else the parents are supposed to do. I don't think it's too much to ask that a child would be able to cycle on their own road (especially a cul-de-sac) without much more supervision than that and without having to worry that a resident is not going to take care while driving on that road. It's not that difficult to take a bit of extra care and slow down to 10-15 kph for the 2-3 minutes that you are driving somewhere where there are children present.

And as regards the original incident, I'm not sure what the parent is supposed to do here in terms of allowing the 7yo child to cycle on the footpath. There is a driver on their road who couldn't even be bothered to slow down sufficiently or even stop to allow a child to cycle past, I'm not sure whether I would want my child cycling on the road if that's what you have to deal with here. I don't think an attitude of "Mary, I need you to cycle on the road outside because it's against the law to cycle on the footpath and if you ever get knocked down and killed I need you to have been in the right so that I can win the court case" eases the pain on Birthdays or Christmas Day or every other day really.

 

[cremeegg]

For a number of years I had to drive through a housing estate cul-de-sac every day at about 5pm. The fear that I would hit a child was always in my mind. Sometimes a small child would stand between two parked cars, their head would not appear above the cars, they would dash across the road. No matter how slow or carefully I drove there was always the possibility of hitting one. This would have destroyed lots of people.

I was always glad when it was dark and raining because then there was less chance of kids on the street.

 

[Andarma]

Housing estates by their nature are full of young children. Some of those children will have some sense, some will not. As a driver, you have to assume that none of them have any sense. I have a 7 year old myself, who I thought had a bit of cop-on. We were out on the street one day, on opposite sides. A car was approaching, so I told him to wait until the car passed. He ran straight out in front of the car. 'Why did you do that, I asked, didn't I tell you to wait?' Yes, he said, but I wanted to wait beside you!

 

[Leo]

Parent's have a legal responsibility for their children, expecting everyone else to take extra precautions in case one does something silly is an abdication of that responsibility.

To strictly answer the liability issue taking all the 'won't someone think of the children' hysteria out of it, it is illegal for a person of any age to cycle on a footpath. Cycling on a footpath at a speed beyond which you can stop if a pedestrian or motorist pulls out of a driveway could be considered reckless. Without knowing the exact location and the situation re parked cars, street furniture, hedges/trees, etc., there isn't enough information to confirm whether the driver had a reasonable chance to see the cyclist. Look at the case of the child killed in Kilkenny last year, in that case the child was on foot and entered the roadway, no fault was attributed to the driver.

 

[Páid]

.....it is illegal for a person of any age to cycle on a footpath. Cycling on a footpath at a speed beyond which you can stop if a pedestrian or motorist pulls out of a driveway could be considered reckless.

It's not that clear cut. The motorist also has a duty of care to pedestrians, cyclists, other vulnerable persons, etc. You also have to take the age of the cyclist into account.

Even if the motorist had the right of way they must proceed with caution. If the drivers view is not clear then they should take extra caution. It is my view that a car turning off the road into a drive would have to yield to anyone using the footpath whether they were cycling on it illegally or not.

I lived in a horseshoe cul-de-sac for about two years. It was very popular with families because there is less passing traffic than on other roads in the estate. Consequently, kids from other roads in the estate came to play in the cul-de-sac and there were always parents supervising the kids. Even so, every time I drove in to or out of the cul-de-sac I was expecting a child to run out in front of me or after a ball or from behind a car.

 

[Leo]

It's not that clear cut. The motorist also has a duty of care to pedestrians, cyclists, other vulnerable persons, etc. You also have to take the age of the cyclist into account.

Yeah, that's what I was getting at in relation to anything that could have potentially obstructed the drivers view. Very few people park in a driveway at 30+km/h, so a child capable of proper control of a bicycle probably had enough time to react (again probably, because we're all just speculating here). If they were not capable of proper control, they should not be out on the public roads unsupervised.

 

[Rebuttal]

The child was not out on the public road, the child was on the pathway as far as I can gather, again, this is exactly why cars have to have a minimum of third party insurance. The vehicle in question was not pulling out of a driveway, on the contrary, it was pulling into a driveway so they should have been alert to see the potential for what actually transpired. The Kilkenny case quoted by Leo was a completely different set of circumstances.

 

[Rebuttal]

What are you talking about? How is third party cover for situations like this? The bike hit the car, not the other way around.

If a cyclist hits your car when you are driving, the cyclist can take a claim against your insurance policy for any damage to the bike or injury to the person. Regardless of who is at fault, most insurance companies will settle with the claimant as the extortionate fees charge by our wigged legal types in defending a case will, in most cases, far exceed any claim by the third party. Welcome to the real world.

Peteb, have you ever heard of the legal concept of contributory negligence.

 

[Leo]

The child was not out on the public road, the child was on the pathway as far as I can gather, again, this is exactly why cars have to have a minimum of third party insurance. The vehicle in question was not pulling out of a driveway, on the contrary, it was pulling into a driveway so they should have been alert to see the potential for what actually transpired. The Kilkenny case quoted by Leo was a completely different set of circumstances.

The pathway is a public space. Young children should not be cycling there at all, let alone unsupervised if they are not capable of doing so safely. If they injure other children or damage other people's property, their parents are liable.

It's also very rare that a claim will settle in favour of a cyclist hitting a car where there isn't evidence of the driver being at fault.