Former school caretaker loses case over bike collision with car

Judge could not accept cyclist was entitled to use pedestrian pathway as cycleway

 

A former caretaker has lost his High Court action over an accident in which his bicycle collided with a car being driven by a colleague in the grounds of the education centre where both worked.

Mr Justice David Keane dismissed claims of negligence advanced by Vincent O’Mahoney against the car driver and the Waterford and Wexford Education and Training Board arising from the accident at Dungarvan Adult Education Centre (DAEC) on April 23rd 2012.

The judge also said he could not accept Mr O’Mahoney was entitled to use the pedestrian pathway as a cycleway because it was frequently used that way.

Mr O’Mahoney (68), who has retired, had sued Nicola McCarthy Hanlon, a literacy co-ordinator at the DAEC, over the accident at the centre, alleging it was caused by Ms Carthy’s negligence in the control or driving of her car.

He also sued Waterford and Wexford Education and Training Board for alleged breach of duty or breach of his employment contract in failing to ensure his safety while in the premises.

The defendants denied the claims.

The court heard the collision caused Mr O’Mahoney to land heavily on his shoulder and he was later diagnosed with a tendor rotator cuff tear.

Two months later, he had surgery which required him to keep his left arm in a sling for six weeks and was out of work for about eight months after the accident.

The operation was a success and he is mostly pain free but suffers inflammation of his shoulder from time to time.

Mr O’Mahoney said the front wheel of his bike went just beyond a pedestrian pathway in the grounds when the front offside wheel arch of Ms McCarthy’s car glanced against his left thigh, causing him to lose balance and fall against the wing of the car before he toppled against a concrete kerb.

Dismissing his case, Mr Justice David Keane said he could not accept Mr O’Mahoney’s submission that he was entitled to use the pedestrian pathway as a cycleway because it was frequently used that way.

The path was directly accessible only from a public path and cycling is expressly forbidden there by law, the judge said. The narrowness of the pedestrian entrance and nature of pathway confirmed the lack of care and attention “if not outright dangerousness” implicit in treating it as a designated cycleway, the judge added.

“Foolhardy behaviour does not become reasonable behaviour merely because a number of people have engaged in it in the past.”

Even if that was not so, the proximate cause of the accident remained Mr O’Mahoney’s failure to stop or dismount from his bike, he held. He did not accept a hedgerow created a blind spot, the judge added.

He accepted uncontroverted expert evidence on behalf of the education and training board there was ample time for a pedestrian or dismounted cyclist to stop in time for any traffic using the access road on the school grounds.

He did not accept there was a failure by the board to ensure pedestrians and vehicles could circulate the grounds in a safe manner and ruled there was no breach of health and safety regulations

He did not accept Ms McCarthy’s vehicle was travelling too fast, the judge said.

In all of the circumstances, he found Mr O’Mahoney has failed to make out a case in negligence against either Ms McCarthy or the board.