Serious accident: Federal Court of Justice overturns previous judgements

It’s just plain creepy what happened to that man in June 2012. We have to picture it something like this: on a dirt track, a mountain biker is riding towards a sign that appears to be fixed to two vertical wooden slats in the middle of the track.

It is sign 260, the round sign with a red border on a white background, featuring a black motorbike in the centre and a car below it. It is the sign that prohibits mopeds, motorbikes and other multi-track motor vehicles from passing through. To the left and right of it: the route appears to be open to cyclists.

Just before the obstacle, about eight metres away, the cyclist realises that the path is blocked after all – but it’s too late. Slamming on the brakes is of no use now; on the contrary, the cyclist plummets headfirst into two Barbed wire, which are stretched outwards from the sign into the undergrowth at heights of around 60 and 90 centimetres above the ground. They are intended to create a wildlife sanctuary.

It was not until a good two hours later that the hunting leaseholder, who happened to be passing by, was able to free the cyclist, who was helplessly entangled in barbed wire, and called the police and an ambulance. The subsequent diagnosis: a fractured cervical vertebra and paraplegia from the shoulders down.

Federal Court of Justice: Cyclists need only anticipate clearly visible obstacles

Responsibility for the wire fence lies with the local council and two hunting leaseholders, who are now being sued for a sum of over one million euros. As the victim was a soldier at the time of the accident, the Federal Republic of Germany is also, in a sense, present in the courtroom as a joint plaintiff.

The Federal Court of Justice has now made it absolutely clear that cyclists should under no circumstances have to expect obstacles on the path that are not visible or are very difficult to spot – such as barbed wire stretched across the path!

For, as stated in the grounds for the judgement: “Barbed wire stretched across a path authorised for use by cyclists, without any conspicuous markings, is a traffic hazard both in the literal and legal sense. Given that such an obstacle is difficult to spot and, as a result of this and its nature, poses a danger, it is entirely unusual and, objectively speaking, must be regarded as downright treacherous, meaning that a cyclist need not expect to encounter it.”

The lower court had, in fact, found that the wires constituted a traffic offence, but had alleged that the cyclist had breached the so-called ‘duty to ride with due care’. Consequently, a cyclist’s speed must be adjusted so that they can stop before reaching an obstacle that appears within the visible section of the road ahead.

The Federal Court of Justice (BGH) rejected this argument and acquitted the motorcyclist of the charge of failing to observe the rule. In the case of such invisible or barely discernible obstacles, the requirement to ride with due care would, in fact, have the unreasonable consequence of forcing riders to travel at a minimum speed at all times in order to be able to stop in good time even when faced with such barriers.

Important: When you’re startled (through no fault of your own), you don’t make mistakes.

The Federal Court of Justice also reached the important conclusion that a panic stop cannot be done ‘right’ or ‘wrong’. This is reassuring news and reinforces the fundamental rights of all cyclists, who are the most vulnerable road users after pedestrians. The Higher Regional Court had previously accused the mountain biker of having caused the fall in the first place by allegedly reacting incorrectly (by slamming on the brakes).

However, Germany’s highest court made it absolutely clear that no ordinary citizen can be expected to have the reflexes of a stuntman, for example to prevent an accident: “An incorrect reaction by a road user does not constitute a culpable breach of duty, if, in a dangerous situation that arose through no fault of their own and was unforeseeable to them, they have no time for calm consideration and therefore do not take the correct and appropriate action to prevent the accident, but instead react in an objectively incorrect manner due to understandable panic.”

A fly in the ointment: The Federal Court of Justice (BGH) acknowledges that the consequences of the accident may have been exacerbated by the fact that the cyclist “was using so-called clipless pedals on the unpaved and uneven dirt track instead of ‘normal’ bicycle pedals. However, this could justify an allegation of contributory negligence of no more than 25 per cent.”

The Higher Regional Court of Schleswig-Holstein had the case referred back to it and was required to rehear it in accordance with the latest guidelines from the Federal Court of Justice.

Here is the link to the original press release from the Federal Court of Justice: https://www.bundesgerichtshof.de/SharedDocs/Pressemitteilungen/DE/2020/2020042.html?nn=10690868

Questions for: Dipl.-Ing. Dirk Zedler, bicycle and e-bike expert (www.zedler.de)

BIKE: Mr Zedler, is the figure of up to 25 per cent contributory negligence in relation to the use of clip-in pedals, as raised for debate by the Federal Court of Justice, justified?
No, not at first glance. Without detailed knowledge of the case, it is of course impossible to make a definitive judgement. However, it is also unclear whether the court even consulted an expert with specialist knowledge of bicycles in this matter.

Has it actually been proven that clipless pedals make accidents more serious?
I am not aware of any studies suggesting that system pedals make accidents worse. In my career spanning more than 25 years as a sworn bicycle and e-bike expert, having produced well over 10,000 expert reports, this has neither been a subject of any commissioned investigation nor has it come to my attention in any way. We have no evidence that clip-in or clipless pedals cause comparable accidents or have contributed to such injuries. On the contrary, it can even be assumed that clipless pedals give the rider better control over the bike. Earlier hook-and-strap pedals, which offered a similar level of control, led to falls significantly more often. Flat pedals are less suitable for touring cyclists and pose a high risk of grazes and cuts to the shin area if the rider slips off.

Wouldn’t it be more reasonable to assume that a rollover – which appears to be what must have happened – would also have occurred during an emergency stop even with ‘normal’ pedals?
A rollover caused by excessive deceleration during an emergency stop is simply a matter of physics. In such cases, the rider is thrown over the handlebars, regardless of whether they are using system pedals or not. In the 1990s, when there were a great many rollovers caused by mudguards folding up, dozens of such accidents were investigated. The consequences were horrific, even at walking speed. None of these cyclists had clipless pedals fitted to their bikes; instead, they were riding with standard touring pedals. None of these cyclists managed to jump off the bike during the rollover to mitigate the consequences of the accident.

What do you think will happen next in this case?
"In court and on the high seas, one is in God’s hands" is one of those sayings that, unfortunately, occasionally rings true. I hope, for the sake of the cyclist involved in the accident, that the court now hearing the case will appoint a cycling expert, together with a medical professional, to examine the matter in greater depth. Only once the sequence of events leading to the accident and the injuries have been thoroughly analysed and collated should the lawyers take further action.

Mr Zedler, thank you very much for answering our questions.

Re-negotiation based on an expert’s report

Clip-in pedals are common on MTBs – and do not pose a safety risk