The weather effects are clearly visible; would you slow down accordingly? (Photo by Reid Beels, CC -licensed)

At The Going Down of The Sun and In The Morning

There is something that happens twice a day, every day. It has done so since before life existed on Earth and it will do so until the seas boil and life ceases to exits. So reliably does it happen that the very concept of a day is inherently bound to it.  Twice a day, the sun is near the horizon.

Given the frequency and the fundamental constancy of this phenomenon, the way we treat it with regard to road collisions is quite remarkable.

Let’s take a look into the sun.

The weather effects are clearly visible; would you slow down accordingly? (Photo by Reid Beels, CC -licensed)
The weather effects are clearly visible; would you slow down accordingly? (Photo by Reid Beels, CC -licensed)

Another death

Yesterday, the trial of Steven Petterson concluded. He was charged with causing death by careless driving after David Irving was struck from behind by the wing mirror of Petterson’s minibus in December 2012. Irving was knocked to the ground and was run over by a following vehicle.

Hampshire police issued a slightly curious statement requesting “that people do not make comment on the case without having listened to all the evidence given in court, which at times was complex“. Well, tempting as it is, I’m not going to. There’s really no need to, because it simply fits a much broader pattern, upon which I will make comment.

A pattern of light

Here is a small list, arrived at from some very cursory googling:

The common factors in all of these cases, just to be clear, are these:

  • the victim died as a result of being hit by a car whose driver claimed not to have seen them
  • the reason the driver gave for not having seen the victim was low sun (even if this was the case only at or immediately before the moment of collision and the victim was quite visible shortly beforehand)
  • the driver was either not found guilty of any charges, or was never even charged

(Note that I haven’t included any of the cases where a driver was convicted but the low sun was a mitigating factor in sentencing.)

In other words: The legal process has ruled that in each of these cases that there is no culpability in driving a car into someone and extinguishing their life, if you failed to account for the celestial body that is so constant and so fundamental to our existence that without it there would be no life.

What giveth, truly taketh away.

The thing is, when I read these cases, my first thought is one question: Why is the court even considering the weather?

The astonishment of man

Weather happens. Weather happens every hour of every day. The sun shines, rain falls, wind blows, ice gathers… And these conditions are there, right in front of us, all the time. If you leave the house at dawn on a wet winter’s day, you know the sun will be low and you know it will be in front of you as you drive east. If you leave the house and the temperature is near zero, you know there may be ice. If you leave the house and it has been raining for two days, you know there may be standing water. There are no surprises.

But our transport system and our legal system are surprised by this. When people drive into a space that they hadn’t figured out contained a person, some people come along with tape measures and traffic cones and they scratch their heads and they wonder, what happens when you look toward the sun? And then they write down what they think happens when you look towards the sun, and they give those writings to some people who sit in a big room. And they spend a couple of days discussing what people should be expected to do when they look towards the sun. And, after millions of years of humans looking at the sun, they generally fail to figure out what is expected.

And the matter of astonishment should be not that people can’t see very well when they look at the sun, but that people are still, in 2014, trying to get their head around how people should respond to looking into the sun.

It is truly incredible.

The vicious circle

People die because people haven’t figured out what to do when they see the sun. And people haven’t figured that out because the law says it’s ok for them not to have bothered to figured this out. And so it’s a vicious circle.

And it’s not ok.

This vicious circle can only be broken one way: By changing the law such that it’s not ok to do it. By changing the law such that it’s not ok to simply drive into a space without ascertaining that there is no-one already in it. By changing the law so it’s not ok to fail to control a vehicle and blame it on the weather that hadn’t been accounted for.

The two fundamental failings

There are two key failings of the legal process. They are closely related to the fact that the Road Traffic Act 1988 desperately needs to be changed to either radically redefine or completely replace the concepts of “careless driving” and “dangerous driving”, but that’s a whole blog post in itself.

The two failings are these: That “I didn’t see him/her” is a valid defence, and that the weather can be a justification for, or a mitigating factor in, not seeing someone or something.

Any campaign that wants to address road danger should really be demanding – among other things – these two legal changes:

  • That in order for the “I didn’t see X” to be a valid part of either defence or mitigation, the onus should be on the defendant to prove that it was not reasonably possible to see X. There are situations where such “impossibility” is perfectly plausible (eg pulling onto an unlit road at night into the path of an unlit vehicle approching from the side) but not only are these few and far between, it should be possible to list them explicitly as part of CPS guidelines. Any edge cases can be tested in court, but the key is the burden of proof.
  • That weather, whilst pertinent to accident investigation recommendations for future driving and technology, is not even considered in terms of culpability of a driver, who should be responsible for driving according to the conditions. This is not just a matter of visibility: take for example this driver who, as far as I can ascertain from multiple reports, was not charged for the death of a passenger because he lost control in a puddle and so was deemed not to have caused the death (the implication being that the puddle did).

Together, these factors would give significant protection to all road users. It would be clear that no longer would it be tolerated to drive into a space that had not been sufficiently checked, and in so doing to cause injury or death.

“I didn’t see him/her” should surely be an admission of fault in all but the rarest cases. And the weather – that thing that happens everywhere, every day – should absolutely not be an excuse for failing to see.

Until those changes are made, anyone on an eastbound carriageway in the morning or a westbound one in the evening has no legal right not to be mown down from behind. None.

If you find such total lack of protection to be unacceptable, then let’s do something. Let’s make a strategy and take it to politicians and the CPS.

Because, without that, people will drive blindly and people will die.

Your thoughts in the comments are most welcome.

Footnote

The AA tweeted this recently:

Obviously they meant “bad weather for driving”. But what we see in reality is “weather for bad driving”.

And that subtle linguistic ambiguity kind of sums things up.

Weather happens. Deal with it.

Epilogue, 11 February 2014

Today someone kindly alerted me to these reports of the trial produced by Southampton Cycling Campaign. They make for fascinating reading, but of particular note on Day 6 is the following record of a comment made by the judge: “Jury will be directed to ignore Highway Code ‘slow down or stop if dazzled’“.

So there we are: apparently, it has been made explicit in a court of law that there is no legal expectation to moderate the progress of one’s vehicle in any way in order to account for loss of vision due to the sun.

This means, therefore, that not only do juries deem it acceptable in the context of the wording in the Road Traffic Act 1988 to hit and kill someone because of bedazzlement, but judges guide them explicitly to this outcome.

There is no legal protection when your physical protection is at its lowest. None.

This has to change.

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41 thoughts on “At The Going Down of The Sun and In The Morning”

  1. I looked at data from 353 RTA forms in Bristol a couple of years ago. In 122 cases “failed to look properly” was listed as the most likely contributory factor. This was way ahead of any other factor. “Dazzling sun” came well down the list at 5 citations as a first mentioned factor. ( http://thislast.blogspot.co.uk/2011/12/considerate-cycling-5.html )

    Added to your excellent post, this suggests to me that what counts as “proper” looking, and what counts as careful driving need some radical attention and overhaul. Changed expectations of prosecution and its consequences would be an important contribution. Training and testing might also help.

  2. I know this is simplistic, but to me all this “I looked but didn’t see” is frankly bizarre. Nobody would swallow “I didn’t see him” as a reason for killing someone with a pickaxe, or a chainsaw, or a golf club, or even by knocking them down on foot. Allowing it for motorists is simply special pleading to allow us to csrry on believing that cars can ever be safe.

    Seems to me the Japanese judge had it about right – punitive damages, preferably coupled with an automatic life ban from driving. Of course, if the drivers are as sad as they claim to be they’ll clearly never want to drive again anyway. But automatic, take the jury out of it because they will always symoathise with the driver.

    1. It’s bizarre, but it’s a recognised phenomenon that people will look, but will not see things they’re not expecting or actively looking for, the famous gorilla experiment. My family are slobs, I’m a neat freak, in one discussion they said that they just don’t see mess and rubbish lying around until they literally trip over it. No amount of trying to educate them about it helps, it just doesn’t appear on their radar – just like cyclists are not noticed at all by some drivers until they literally drive over them (and sometimes not even then).

      With that in mind, even in perfect conditions, bright daylight, straight roads, people wearing hi-vis etc, even with all the will in the world, a percentage of drivers will STILL not see other road users, simply because of the way the human brain works.

      And even if drivers do see us and have plenty of time to react, a certain percentage will simply not care about the safety of others, take umbridge at the fact that bicycles even exist and will deliberately intimidate, close pass, tailgate, push past through pinch points, left hook etc with inevitable consequences. How can we get those types of drivers to be careful about potential road users that they can’t see but might be there?

      Both of these are reasons why I believe physical separation from lethal killing machines is the ultimate solution, at least on roads that are not quiet, slow residential streets. Until that day though, the law needs to stop drivers using ridiculous excuses, protect vulnerable road users, strict liability, force drivers to actually pay attention, just like every day I have to force my family kicking and screaming to pick up their crap because I’m fed up of doing it for them.

  3. Splendid post.

    The “sun-dazzled-me” defence is just one of the SMIDSY excuses. The most common ones are based on the idea that the pedestrain or cyclist was not wearing special reflective clothing, or that the road had not been straightened out enough to allow the driver easier visibility.

    Ultimately this all comes down to the most basic of instructions to drivers: “Never drive in such a way that you cannot stop withing visible distance”. If you can’t see someone ahead of you, for whatever reason, it is your responsibilty to slow down, watch out more, use the device provided to prevent sun-dazzle – and if none of this works, stop driving.

    Take a look at this for the evidence: http://rdrf.org.uk/2013/11/03/hi-viz-for-cyclists-and-pedestrians-the-evidence-and-context/

    Best regards,

    Dr Robert Davis, Chair Road Danger Reduction Forum

  4. The law falls short on this question. It should be quite simple. Look where you are going and you will see what’s in front of you. Failure to look where you are going is negligent. Driving a motor vehicle carries a risk of fatally injuring another road user and should require a high standard of both competence and care. Causing death through negligent driving should be treated as with negligence in any other sphere of activity, as manslaughter.
    It is my belief that the roads would quickly be made safer for all users if this were adopted.

  5. Another well thought out and succinct post. Thank you for your insight, it has me thinking a lot.
    Agree with all your points in this and other posts.
    Another shocking result from our judicial system.
    I wish I could express myself as well as you do.

  6. I would never dream of cycling forward blindly into the unknown, firstly since I know my own safety would be very much at risk. Tougher laws and proper sentencing will not go far towards mitigating the fact that people just don’t perceive getting behind the wheel of a motor vehicle as a dangerous enough activity to bother to take care to conserve their own lives or anyone else’s.

  7. I am a keen cyclist (both on road, and MTB trail riding) and a car driver. Last week I needed to cycle a 5 mile route to collect my car that was being serviced at a nearby garage. I have always done this as its the easiest way to drop my car off, remove my cycle from the roof mounted racks and cycle home, and of course do the reverse when the car is ready to be collected. However, this time, having recently moved house, my route was different. Part of the route took me along a short, busy stretch of national speed limit road, and as it turned out, directly into a low, bright sun. The first thing on my mind were thoughts of my invisibility to the traffic approaching from behind. Luckily, my turn was quite close and I was glad to take it! Personally, I could see my own way ahead, but I was travelling relatively slowly (~ 20mph) and did not have a pane of glass between me and the scene in front.

    If a car driver does not see a vehicle in front because they were dazzled, they were likely not driving within the confines of the conditions (going too fast or not paying attention to the road ahead). SMIDSY is a poor excuse for poor driving.

  8. You, rather spectacularly, avoided any mention of the driver having that death on their conscience. Tragedy remains on both sides of an accident. A veteran of several jobs involving large mileages (up to 100k miles per year), I can safely say that occasionally the sun does take you by surprise – an unexpected reflection, even from your own mirrors, can momentarily blind you.
    To force a driver who had no intention of setting out to kill someone that day to prove their innocence goes against every principle of a free country.
    Horrible mistakes? Yes. Deliberate criminal acts? Impossible to say with certainty, without being part of the case – judging by the outcomes of all the examples, the answer appears to be “no”.

    1. Being temporarily blinded and ploughing on blindly are two different things.
      If you slow down and someone runs into you from behind, they are at fault (unless you are a cyclist).

      1. Precisely, that not guilty verdicts were returned proves that for the examples above, it was a mistake – not a wilful act of “ploughing on”.
        Regardless, the point still stands – the driver knows they killed someone. That will affect them hugely – especially in the event of a genuine accident. The article does not take the human element of driving into consideration.

    2. Its no good feeling sorry as a driver after you’ve hit someone. What Bez says is correct – you have to know where the sun will be and predict for it.

      And the fact that people are still ignoring important safety advice does show a level of criminality. Its a calculated choice. Even nice people can become killers.

    3. It’s absolutely true that incidents like these wreck the lives of all involved. There is a slight issue with the fact that the law, perhaps most notably the sentences it can apply, is a somewhat blunt instrument when it comes to the subtle differences between “unintended crime” – for want of a better phrase – where people have not been malicious or premeditative but have been negligent or incompetent. It’s something I allude to a little towards the end of The Problem With Good People, but that only goes so far. The real problem is that we have all internalised the behaviours which discount the risks, and we don’t respond the right way when we encounter them: the “surprise” of glare from the sun shouldn’t be a surprise, because the sun is always there. It’s exacerbated by the fact that we don’t clean our windscreens enough, or that we forget to account for the fact that clouds suddenly pass away from the sun. Fundamentally, there is only one entity controlling any vehicle and it’s not the sun.

      1. I was safely overtaking a line of cyclists, with my lights on, within the speed limit, on the other side of the road. They were unlit and, without warning or signal – or a “lifesaver” as motorcyclists know it – the front cyclist turned right to try and enter a side road. He slammed into the side of my car and I felt something go under my wheels. Fortunately, it was his bike.
        He was bruised and shaken, I was shaken and left with £1000 of damage to my car. The police attended (traffic collision) and eyewitnesses were able to confirm my account.
        If the worst had happened, with what you said and if there were no witnesses, I would have been jailed. For his mistake, not mine – who would believe me? Why would a cyclist turn into a car? Well he did, and survived to tell the tale because of nothing more than luck. If I’d been a few metres further back/in front etc.
        Unless you’ve been in the situation, you shouldn’t comment.

      2. Surely you would have explained what had happened and that would be compared with the crash investigators’ report? It would have been clear that you had passed with good space and that the other party had hit the side of your vehicle.

        I don’t see what your example has to do with “I didn’t see him”, because clearly you saw him.

        Again, I’m not suggesting anyone is guilty until proven innocent in any way.

        All I am suggesting is that failure to see people is the reason people die, and – accordingly – that it should not the reason why people are not held responsible.

    4. So let us feel sorry for the poor rapist who also has to live with that crime on their conscience. We really should not criminally prosecute rapists. Isn’t having to live with the memory of the screaming and crying of the rape victim punishment enough?

  9. It’s not just when they hit other more vulnerable road users either. Just look at the treatment of the drivers in the Isle of Sheppey pile up. Not a single charge for any driver despite the fact that many were speeding on ignoring the fog that they were driving through.

  10. I got hit in 2008 by a driver that pulled out of a roundabout junction without looking. What most annoyed me after was that the Police tried to make out the sun was an excuse (in fact the sun wasnt behind me at the time of the collision).

    I even followed the social conjecture of wearing a high visibility jacket, had super bright lights on, was on a cycle lane for crying-out-loud.

    It does piss me off that several things were not looked into: his phone records were not checked, his eye sight wasnt checked. It is this plough-on regardless, at the speed limit and only the speed limit attitude of many motorists that is damaging lives and safety here in the UK.

    1. It would be illegal to check his phone records and eyesight without reasonable cause to suggest they were related to the accident.

      FYI, phone records only show a phone is being used, not whether the hands-free speaker-phone function was being used. Statistically, a hands-free phone conversation is less distracting for a driver than chatting to a passenger.

      1. There is mixed research into that. I’ve certainly read studies that find hands-free to be significantly more distracting than speaking to a passenger, and roughly as distracting as using a handheld phone.

  11. “the onus should be on the defendant toprove that it was not reasonably possible to see X”

    Sorry, but that idea is contrary to one of the fundamental concepts of British law. It is the responsibility of the accuser to prove guilt. The accused is presumed innocent, and does not need to prove their innocence.

    If a driver clains that they could not see X, the responsibility lies with the prosecution to prove that the driver *could* see X.

    1. I disagree. The reason being, as above, that “I didn’t see X” should be considered an admission of guilt, since people should be entirely responsible for driving their vehicle into an area of space.

      This post isn’t saying that if someone is involved in a fatal accident they should be presumed guilty. It’s saying that “I didn’t see X” should not be a valid defence, because seeing what you are driving a car towards is an absolutely fundamental part of being a safe driver.

      1. No, it specifically states that a driver must prove their innocence.

        I nearly hit a cyclist, because I was dazzled by a flash of low sunlight off the side of a wet lorry, and the cyclist chose that moment to stop in the carriageway (there was nothing in front of him, I don’t know why they stopped).

        If my reactions had been a moment slower, and you had your way in changing the law, I would have been presumed guilty and jailed for manslaughter, purely because I did not take note of the details of the lorry, and thus could not find evidence to prove it was exactly there, exactly then.

        (For the record, I am both a cyclist and a driver. This is not an un-and-them comment, I am pointing out the immense legal repercussions of your suggestions.)

      2. (Devil’s advocate begins)

        Or, had you hit him, would it have been because you hadn’t left sufficient space to stop in time and/or hadn’t modified your speed according to your loss of vision. (I hesitate to use the second person there, because evidently you had left sufficient space, which makes it a little academic, but still…)

        (Devil’s advocate ends)

      3. @Devil’s Advocate comment: fair point, but even “sufficient space” is a highly debatable concept, given the huge numbers of possible variables involved, such as unexpected greasy patches or the fact that, if you leave the legally-recommended stopping distance, it usually gets filled by several other road users who think you’re leaving space for them to pull into your lane, or out of a junction…

        (End slightly off-topic moan)

    2. Is not “Sorry mate, I didn’t see you” ACTUALLY an admission of guilt or negligence? If you can’t see, you can’t drive. Or are you really implying that driving without a clear view ahead is an acceptable practice and acceptable in court?

  12. “To force a driver who had no intention of setting out to kill someone that day to prove their innocence goes against every principle of a free country.” – So you believe manslaughter convictions for similar outcomes where cars are not involved are against the principles of a free country?
    I don’t disagree that it must be awful for motorists who have killed to have deaths on their conscience, yet another reason why killing cyclists should be discouraged by any means possible, rather than normalised. It would be an attempt to protect motorists from their own irresponsible actions.
    The weather cannot be held responsible.

    1. Obviously, you can’t be guilty until proven innocent. Proclaiming such smacks of reaction, rather than response.

      1. I’m not suggesting that guilt is presumed, only that if you are proven to be the cause of someone’s death you should be held accountable.
        The weather was not the cause, careless/dangerous use of a motor vehicle was.

      2. The driver and defense team has technically proven guilt themselves when they show the driver carried on driving regardless of visibility, and when the driver/defense claim “smidsy”

  13. Hi, good blog. When riding with a low sun behind me, I am extra careful about vehicles behind me. Equally when I am driving into a low sun, I am also extra careful and if I cannot see, I slow down – I have even stopped on a few occasions. How we get other drivers to take such care is difficult. Education and better use of the law would help, but the cultural dominance of the car is a hard one to crack.

  14. The police spend hours checking these accident scenes but seem totally incapable of commenting in court on the veracity of the defendants claim. The CPS obviously consider these cases worthy of bringing to court yet seem to be doing nothing to secure guilty verdicts.

  15. If car A is proceeding along, and car B runs into the back of car A, I thought the law clearly stated in this scenario that the driver of car B is at fault by negligence.

    If this is not applicable, does anyone know why?

    1. Insurers tend to assume fault lies with the driver who hits from behind, but I don’t believe the law says anything of the sort. IANAL.

    2. That’s not the law, it’s just an assumption made by insurers to enable them to quickly apportion blame, and thus responsibility for costs.

      It’s an assumption that has enabled quite a lot of insurance fraud to be committed, with drivers stopping suddenly and deliberately in the path of other road users.

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