As truck driver Kelly Shearer turned the corner from Mount Maunganui’s Hewletts Rd on to Tasman Quay, he felt a bump, which he thought was a pothole.

As his trailer came around, he felt it again.

He slammed on his brakes, got out and saw a cyclist lying on the ground.

He told police that when he saw the man, he “knew he was gone”.

Cyclist Bryan Marris was 59, and a regular cycle commuter from Pāpāmoa Beach. He died at the scene.

Shearer was charged with careless driving causing death, with the police alleging Marris was “there to be seen” and Shearer was careless by not properly checking the way was clear before he turned left.

The defence case was the collision was an accident – Shearer was a careful and prudent driver, and the accident occurred nonetheless.

The police cordon at the intersection of Hewletts Rd and Tasman Quay after cyclist Bryan Marris was killed in a collision with a left-turning truck, driven by Kelly Shearer.

Now, a judge has acquitted the man, deciding the road layout contributed to the accident, as the road markings did not clearly indicate who had right of way through the intersection.

Judge Melinda Mason presided over a one-day, judge-alone trial in February and reserved her decision, which was recently released to NZME.

In it she says it was “not clear beyond a reasonable doubt that a reasonable and prudent driver would see a cyclist attempting to pass on the left in the circumstances that confronted Mr Shearer”.

It was an outcome Marris’ wife Brenda told NZME was both disappointing and unexpected.

Commuter cyclist Bryan Marris was heading home, and travelling in a designated cycle lane next to the truck.

“Whatever the outcome, nothing will bring our Bryan back and we have to come to terms with that,” she said.

“Cyclists are definitely underclass road users and we hope that attitudes will change to respect their space and provide them with more safety.”

‘Road layout contributed to the accident’, judge says

During the trial, the court heard that Shearer had more than 30 years of experience as a truck driver.

On April 28, 2023, he was carting containers from the pulp store on Waimarie St in Mount Maunganui to the port at Sulphur Point and, having completed the first delivery of the day, was returning to Waimarie St to pick up another load.

He travelled along Tasman Quay when traffic was congested, and it was about 4.15pm when he approached the intersection, intending to turn left.

At the same time, regular commuter Marris had finished work and was cycling home.

The judge’s decision said the CCTV footage showed him “cycling at a good pace from the city as he approaches the intersection”.

As the light turned green, Shearer flicked on his left indicator, and checked his wing mirrors, but didn’t see Marris.

Marris, who was in a designated cycle lane next to the truck, took off straight ahead.

Seconds later, the two collided.

The experts said Shearer was indicating for about 12 seconds and when he began turning, Marris had been in his blind spot for just over four seconds.

The fatal impact occurred 0.52 seconds after the truck started to turn.

The judge said Marris was seen cycling at a consistent speed, not slowing on his approach nor hesitating at the intersection as he entered it.

Police pointed to the fact Marris had a forward-facing flashing light on and was in his own designated lane, as he was entitled to be. They said Shearer did not pause before making his turn, cutting across Marris’ cycle lane without ensuring it was clear.

However, the judge’s decision said the cycle lane stopped at a solid limit line and did not continue through the intersection, recommencing on the other side of the intersection.

“Marris was not in a cycle lane at the time of the collision and had no right of way across the intersection when underpassing left-turning vehicles,” Judge Mason said.

She noted the road layout had now changed. The cycle lane finishes earlier and directs cyclists on to a footpath well before the intersection. Green cycle lane markings that indicated an “advanced stop box” have been removed.

Judge Mason said it was now “very clear” the lane does not proceed through the intersection and left-turning traffic has right of way.

“These changes reflect an acknowledgment that the road layout contributed to the accident by its lack of clarity ... ”

An NZ Transport Agency Waka Kotahi (NZTA) spokesperson confirmed alterations to the line markings were made in May 2024, following an engineer’s safety report.

“While it is legal for cyclists who wish to stay on the road, the changes were prompted by the tragic death of cyclist Bryan Marris, to provide an alternative route.”

However, the spokesperson also noted it wasn’t usual practice for a painted cycle lane to be marked through an intersection.

“The indication of a cycle way symbol and green paint on the other side of the intersection is the continuation of the cycle lane through the intersection.”

NZTA’s safety guidelines remind cyclists to “be aware”, including watching for car doors opening, potholes and pedestrians, and always checking for left-turning vehicles.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.