Where next for hi-visibility clothing?

You might be the kind of person who thinks that someone riding a bike should do everything possible to make themselves visible to drivers. That they should wear hi-visibility jackets. That they should be reflective, and illuminated.

Well, if you ever cross the road at night, you might want to pay attention to what judgements that are emerging from courts – judgements like this one – might mean for the clothing you have to wear.

A MINICAB driver who struck a pedestrian in Kingsbury has been cleared of causing death by careless driving.

Wahidullah Hoori, 41, had just turned off Edgware Road in Kingsbury when his 05-reg Seat Alambra people carrier hit Barry Southgate as the slow-moving 64-year-old crossed Kingsbury Road, at 11.50pm on April 11 2012.

Mr Southgate, of Theobald Crescent, Harrow, died nine days later from his injuries at St Mary’s Hospital in Paddington, west London.

Prosecutor Nicholas Bleaney told jurors: “The prosecution say he should have seen him and had plenty of opportunity to see him and Mr Southgate was doing nothing dramatic.

“He was walking along at a relatively slow, pedestrian speed – something any driver in any part of the country, particularly in London, has to deal with all the time.

“He did not suddenly come out from behind a tree and his movements, we say, were pretty obvious. Speed isn’t an issue. The turn was conducted at a normal speed. The accident, we say, was caused by carelessness.

“He [Hoori] should have stopped in time to avoid a collision or at the very least swerved to avoid him.”

Mr Southgate had helped plaster a wall at a friend’s house before he and his friend went for a drink at The Moon Under Water in Varley Parade, The Hyde in Colindale, where the victim drank two pints of real ale.

His bus home sped past as the two left the pub and so Mr Southgate, who was also known as Barry O’Reilly, decided at 11.30pm to walk down Edgware Road and had just turned the corner into Kingsbury Road when he was hit by the nearside front grill of Hoori’s minicab.

Mr Bleaney said the defendant made a statement to police that he had been working since 2pm on the day of the collision, that he had had a day off the previous day and had consumed neither alcohol or drugs before the crash.

Witness Raluca Frunza told the court: “I saw the old man. He was on the other side of the road. He was walking really slowly because he was on crutches. He was not using [the traffic island] to cross the road. I heard a noise like a metal-to-metal noise and heard a male scream, a yell, and then I realised that the car had hit the old man.

“I saw a lot of blood on the floor.”

There is some more detail on this case from the ‘expert witness’ providers, Wayman Experts, who provided ‘expert witness’ testimony in court, that appears, by their own estimation, to have contributed to the driver being found not guilty.

Mr Dave Burgess of Wayman Experts was instructed in this matter following a road traffic collision that occurred on the A4006 Kingsbury Road, London at approximately 2353 hours Tuesday April 10th 2012.

Mr Hoori, the driver of a Seat Alhambra taxi, collided with a pedestrian who sustained fatal injuries. During their investigation the Police obtained CCTV footage of the movement of both the pedestrian and vehicle immediately prior to impact, although the collision itself was not in view of the camera.

The prosecution alleged that the pedestrian should have been seen and that there were no obstacles preventing Mr Hoori from seeing the pedestrian.

The pedestrian was wearing dark outer clothing and walking with the aid of at least one crutch at a slow pace.

Within his report Mr Burgess highlighted a number of issues, to include the blind spot created by the vehicle ‘A’ pillar and the pedestrian conspicuity. [my emphasis]

Following a trial at Wood Green CC, the jury returned a verdict of Not Guilty to the charge of Causing Death by Careless Driving.

What does this all mean?

It means that if you are walking in a lit, urban area at night, wearing ordinary clothes, and you are struck and killed by a driver who should reasonably be able to see you as you cross a road, that driver will  be found not guilty due, in part, to your lack of ‘conspicuity’.

Don’t think that wearing hi-visibility clothing is just a ‘cycling’ issue.

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32 Responses to Where next for hi-visibility clothing?

  1. Chris says:

    Whilst this is a terribly sad incident, I’m not sure why some people seem to have such an aversion to high viz clothing?

    If, instead of a pedestrian, the taxi driver had death a slow moving motorcyclist in dark leathers who hadn’t got his lights on, I very much doubt anyone would even bat an eyelid at a court deciding the lack of lights was a contributing factor in the death.

    Just because the prosecution says that the driver would’ve seen the pedestrian – and they would say that, wouldn’t they – that doesn’t necessarily make it so, and would appear this case that a jury has indeed decided it wasn’t.

    Without having seen the incident our been in court to hear the case, this just seems like a tragic incident of circumstance, and trying to use it to score points in a political debate seems rather crass and tasteless.

    • “I’m not sure why some people seem to have such an aversion to high viz clothing?”

      I’m wondering if you have such an aversion? Do you wear hi-visibility clothing when you walk around a town at night?

    • Lorenzo says:

      Chris, I think the point is this is victim blaming. Mr Southgate was merely crossing the road when he was struck by the vehicle driven by Mr Hoori. It was the fault of the driver that he died. That the court didn’t convict him is presumably the spur for this post.

    • Paul M says:

      The comparison with a motorcyclist is crass and meaningless. Motorcycles are subject to the Construction and Use Regulations which dictate that working lights to British/EU Standards must be fitted and must be used in the hours of legal darkness. A motorcyclist with his lights off at night would have been committing an offence and, while it does not in my view excuse a motorist for not seeing him, it is easy to see how reasonable people might think him the agent of his own misfortune.

      Cyclists are not required by law to fit or use lights, only if they intend to cycle on the highway in the hours of legal darkness. Pedestrians are under no legal obligation to use lights at any time. None of these groups – pedestrians, cyclists, motorcyclists or for that matter motorists – have any legal obligation to adopt “high-vis” clothing, equipment or paint jobs, despite the statistical fact that dark-coloured cars are more likely to be in collisions than bright coloured ones.

      I would expect the defendant to do what he can to avoid conviction – perhaps he should fess up and show remorse but we live in the real world, most people would prefer to feel guilty out of jail than perhaps feel their guilt is assuaged from the inside of a cell. I would expect the defendant’s lawyers to use what devices or subterfuges they have at their disposal to get their client off – distasteful as that might be, we have an adversarial system of justice where, in theory, opposing sides are fairly matched against each other. It goes back to the days of duelling and jousting. I would prefer the continental “Code Napoleon” approach to criminal justice, of an inquisitorial system with examining magistrates, but we have what we have.

      What I would not expect, although sadly I should, is that a combination of the laudable aim of placing burden of proof squarely on the prosecution, and pandering to the baser instincts of the jury (who will no doubt all have been thinking “there but for the grace of God go I”) should throw the blame onto the victim so that the perpetrator escapes justice. He SHOULD have seen the victim in time. He SHOULD have expected pedestrians, possibly in dark clothing at night, to be around and possibly crossing a road. If his vehicle had a blind spot as described by the “expert witness” he SHOULD have been aware of this and making adjustments to reduce its impact on his capacity to see where he was going.

    • Ian says:

      A “tragic incident” in which yet another driver failed to obey the highway code instruction to drive so as to be able to stop in the distance he could see to be clear.

      This isn’t really about hivis. It’s more about the fact that cyclists and pedestrians really should only ever vote for people who promise to change the justice system’s obsession with protecting murderers who use cars to do their killing.

    • “Whilst this is a terribly sad incident, I’m not sure why some people seem to have such an aversion to high viz clothing?”

      How is the consequence of this, and similar cases, not an expectation that everyone, EVERYONE, should carry hi vis and use it all the time? Because everyone is a pedestrian. Parked your car and walking to the door of your work building through the car park? Wear a hi vis vest. Parked across the road from the shop you’re stopping in at? Put on your hi vis vest before crossing.

      If this isn’t self-evidently ludicrous, I don’t know what I can do to persuade you. Drivers, and for that matter cyclists, must expect pedestrians in dark clothing at night in urban environments. Anything else is negligence.

    • michael says:

      Because its an indignity imposed as a symbol of the submission of one group to the power and privilege of another.

      Pretty simple, really. You agree to look like a dork as a sign of your acceptance of the fact that motorists shouldn’t have to look very carefully or drive at a sensible speed.

    • platinum says:

      Not to mention, that if you’re in the blind spot of an A pillar, it doesn’t matter what you wear!

  2. Gregoryiain says:

    http://www.telegraph.co.uk/news/uknews/law-and-order/10472096/Cost-cutting-council-contributed-to-death-of-student-by-switching-off-street-lights.html

    It seems that although all living things must wear hi-viz or risk injury or death stationary objects such as bollards, trees, kerbs, walls, skips, black cars have their own visual register rendering them avoidable. Have vehicle lights become ornaments for legal compliance and no longer used for seeing living things in front of the vehicle?

  3. Chris Brown says:

    But hi viz doesn’t always improve visibility.

    http://www.theguardian.com/environment/bike-blog/2013/jan/10/cycling-high-visibility-safe-fluorescent

    This references a TRL study which reviews this research:

    “In urban roads, where the background surrounding the PTW was more complex and multi-colored, the reflective and white outfits increased its attention conspicuity compared to the black outfit condition. In contrast, in inter-urban roads, where the background was solely a bright sky, the black outfit provided an advantage for the PTW detectability”

    http://www.ncbi.nlm.nih.gov/pubmed/22062342

    Wasn’t an elderly Edinburgh cyclist killed recently in Hi Viz?

    Perhaps the answer for individuals wanting to maximize visibility is to wear hi viz at night and in urban environments, black elsewhere? Or just black + reflective combinations all the time. Regardless, I agree we need to get the legal framework changed to remove blame from the cyclist in these accidents.

  4. I almost had to put a £1 in the swearbox at work after reading this….I just stopped myself from completing a “WTF” exclamation out loud. Unfortunately the sad truth of the matter is that knowing how the “justice” system in this country panders to the motorists when someone is killed due to their actions it should really have come as a surprise.

    • Ian says:

      Not just the justice system, although it does seem that the legal profession is on a mission to rid the roads of all non-motorised obstructions. Our idiot politicians, in Scotland at least, are equally obsessive about aiding motorists on their way.

  5. D. says:

    Gosh, “expert witness Dave Burgess” gets about a bit! I have just been reading http://beyondthekerb.wordpress.com/2014/02/19/between-the-lines/ where he pops up again.

    • D. says:

      In that one, he explains how a large lorry can quite happily and safely pass a cyclist without ever having to leave the lane.

      • Bez says:

        According to this report,

        http://www.southamptoncyclingcampaign.org.uk/wp-content/uploads/2014/02/Day-4-of-Steven-Petterson-trial.pdf

        his other comments on that case include:

        – that “drivers will focus on vehicle in front, not 4-5 vehicles ahead” (if you’re a crap driver)
        – that “lateral movements [of vehicles] ahead would not necessarily flag up cyclist ahead” (if you’re a crap driver)
        – vehicles at the traffic lights half a mile prior to the collision (!) “would complicate
        situation and could make cyclist less visible” (weapons-grade WTF material here)

        It would appear that he also felt it important to raise road camber as an issue in terms of a cyclist not being entirely perpendicular to the road. Quite what the pertinence of this is, I cannot fathom.

        • D. says:

          “Quite what the pertinence of this is, I cannot fathom.”

          Cyclists have a detrimental affect on local gravity, creating a singularity which draws helpless motorists in – didn’t you know that?

        • zenpunk32 says:

          - that “lateral movements [of vehicles] ahead would not necessarily flag up cyclist ahead”

          Not _necessarily_, no. But potentially. So the prudent thing to do would be to look out and move over, and if that potential isn’t fulfilled, no harm done. If you don’t even know what is up ahead, one should take care out of mere self-preservation if nothing else. Who knows, it could be a lorry wheel or something that’s come off, that might damage your car!

    • yes, it does seem like his company Wayman Experts,”expert witness’ providers”, are actually “get car drivers off” providers. http://www.waymanexperts.com

      Their testimonials suggest they are predominantly thanked by the defence.

      • gregoryiain says:

        I would be very interested in the level of peer-review and internal criticism and assumption-testing that is used within companies like Wayman to avoid group-think or single point-of-view collision assessment. Without such rigorous internal examination it is not hard to see that reports from “former traffic police officers” may serve particular counsel through even subtly tendentious appraisal of the “intellectual aspects of collision” due to the ‘consultant’ having enjoyed a lifelong career in the driving industry.

        • michael says:

          This is a bit troubling, actually.
          I have no idea what the system is, now I come to think of it. On what basis are ‘expert witnesses’ granted their ‘expert’ status? Who decides and does the other side in the case get a say?

      • D. says:

        Do you think the prosecution could ever call them in, as expert witnesses on collissions? “Yes, we need you to clearly demonstrate how this was the fault of the motorist who chose not to overtake or slow down”. I wonder whether they’d take the job, or what excuse they would come up with (if they are impartial expert witnesses, then surely they should be able to work for either side).

        • gregoryiain says:

          So what’s to stop any of us being collision consultants? Several bloggers including some writing here in this thread provide extremely detailed observations of incidents after trials that offer an alternative view that deserve to be heard within any hearing. They manage to do this based on the published evidence, Google maps, Streetview and common-sense.

          The problem is that all this is done after the judgement or from the sidelines during a longer case.

          Maybe one or more of the national cycling, pedestrian, horse-riding or motorcycling organisations should have a fiercely marketed team of collision experts that eventually have to be called by our legal system.

          At present the system gives the best justice that money can buy.

          • michael says:

            Yeah, I was thinking perhaps a cycling organisation could offer ‘expert witnesses’ to give a very different view on what should be expected of road-users.

            However, perhaps what it comes down to is the inclination of juries to give weight to different alleged ‘experts’, and hence it just comes down to the usual petrol-head bias of many of those who make up juries.

            Maybe we need ‘jury vetting’ as they seem to have in at least some cases in the US, whereby people can be excluded from juries deciding on RTA-related cases if they admit to being a regular view of Top Gear or if they believe there’s such a thing as road tax? :) I suppose the other side might then object to anyone who they think is a ‘militant cyclist’, so God knows where that might lead!

  6. Bez says:

    As we’re all well aware, we can cite plenty of cases where people (David Irving and Sean Ruff to name two recent and high-profile examples) who have been killed or seriously injured whilst wearing hi-viz. Equally, we can cite many cases just like the one above where pedestrians’ clothing has been a key issue in court.

    The potentially more interesting case is another fairly high-profile one: that of Ray Elsmore, the Waterlooville lollipop man who was killed by a driver ploughing into him on his crossing. Note this pertinent paragraph from the following report:

    “An accident investigator, who visited the crash scene, experienced how the bright sun had the effect of ‘blending in’ with the colour of a colleague’s high visibility jacket, similar to that worn by Mr Elsmore at the time of the accident.”

    http://www.bbc.co.uk/news/uk-england-hampshire-24905080

    Beware hi-viz. They’ll screw you for not wearing it, and I have no doubt that, in time, if they can’t screw you for that then they’ll screw you for wearing it.

    I’m beginning to question whether the battle against victim-blaming is best fought tactically, by explaining the precise reasons why each individual safety trinket fails to deliver the safety that people assume it to, or strategically, by building a foundation of a mindset that approaches the whole question from a holistic viewpoint rather than from the driver’s seat of a car. I’m utterly unsure – all I’m sure of is that either approach looks practically impossible from where we are right now.

    It’s desperate, for sure. But we need people to see that the law is complicit in killing people who move around without any vehicles at all, because that’s everyone, and that’s everyone’s kids.

  7. Has the time come to abandon the legal system altogether, and pass brown envelopes to shady men in distant pubs?

    I’m only half joking. I drive a *lot* in rush hour and at night through a densely packed medieval city centre and I have no problem whatsoever seeing cyclists and pedestrians, however dressed.

    The legal system is almost completely discredited as far as I’m concerned, and if someone close to me was the victim of such a negligent homicide and it was all glossed over, I really don’t know what I’d do. All I can really say is I’m in awe of those who seem to take these travesties towards their lost loved-ones on the chin.

  8. ezpc1 says:

    When is this car-centric lunacy going to end? Pretty soon you won’t be allowed out at all without glowing like nuclear fall out in order to “be visible”.
    I thought the Highway Code requires drivers to pay due care and attention when driving? Passing the buck on to the victim not wearing bright clothing or a funny hat with lights or a reflective vest or ringing a bell as he walks is missing the point completely. It’s depressing……

  9. rdrf says:

    Let me say again:
    1. Thank you Mark Treasure of As Easy As Riding A Bike and Bez of Beyond The Kerb for bringing the moral degeneracy of this national scandal and disgrace to light (and also the positive commenters – it shows we are not just one or two loonies). I really do think that careful, polite, measured and evidence-based opposition to this evil is necessary and it shows that we are not going down the drain of persistent collusion with violence by the authorities without a protest.

    2. Yes, it may be an idea to have some sort of new campaign. Don’t forget RDRF, RoadPeace and the CTC’s Road Justice Campaign, plus The Cycling lawyer Martin Porter. In the long term a key project has to be to get conspicuity bollocks out of the Highway Code (along with cycle helmets).

    3. Some evidence on Hi-viz is here: http://rdrf.org.uk/2013/11/03/hi-viz-for-cyclists-and-pedestrians-the-evidence-and-context/ and in posts here: http://rdrf.org.uk/category/conspicuity/ on what it is all about – victim-blaming and generally continuing to avoid the responsibility of the motorised.

    So: the good news is that there is vocal opposition and carefully and well-worked out arguments from the good guys – to a great extent. The bad news is that the shit is still there.

    Carry on the struggle,

    Dr Robert Davis, Road Danger Reduction Forum

  10. platinum says:

    I’m fed up reading court case after court case, all the same. What can we actually do to change things? Or do we all just have to move to Europe?

  11. dj says:

    This is not about hi viz, it is about the utter failure for the law to be enforced.

    In England there is no need to find a weapon to kill someone, use a car instead. A jury of your peers who also drive will always acquit you, because they will think that they could have caused the same “accident”.

    The failure to protect vulnerable road users needs to be addressed, strict liability would change things dramatically.

  12. Pingback: Stop Killing Cyclists Halts Hateful Boasting by Crash Experts | STOP KILLING CYCLISTS

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