Another case of interest from the turn of the year
Earlier this year the High Court heard a case involving a cyclist that should be of interest to all cyclists for a number of reasons.- The case of Phethean-Hubble v Coles
This case is of interest because of a number of the points raised in the judgement of HHJ Wilcox, which brings together in one case some previous case decisions but also adds to previous cases in respect of contributory negligence for cyclists.
On 28th November 2005 at approximately 8pm, Tobias Phethean-Hubble, then aged 16, was cycling on a pavement that ran parallel to a road. He was also not using any lights. At some point on his journey he left the pavement and ‘bunny hoped’ at an angle into the road where he collided with a motor vehicle driven by the Defendant, Mr Coles, that was travelling in the same direction. As a result, Tobias suffered severe brain injuries. he was not wearing a helmet although he did own one.
The issues of illegal pavement cycling and not using any lights when it would have been dark are all considered in the judgment and are not considered to be a factor in the collision. In fact it was established that Tobias was a keen and responsible cyclist, who even went as far as having professional services of his bike at a local Halfords store.
Tobias sued contending that Coles was wholly to blame for the accident. Coles countered raising issues of contributory negligence in respect of the cycling for liability and the non wearing of a helmet for causation.
The main liability argument centred around the speed of the defendant vehicle, which after some considerable debate and input from expert witnesses was deemed to have been 35mph in a 30mph zone. The court believed that under the circumstances Cole should have been driving 10mph slower than he was.
After hearing the evidence it was held that ‘’primary liability for the accident was that of the Defendant by virtue of the excessive speed’. However, Tobias had ‘’created an emergency situation’’ by bunny hopping into the road. ‘’The degree of his contribution to the cause of this collision is 50%’’.
In respect of the contributory negligence in not wearing a helmet HHJ Wilcox referred to the case of Smith v Finch and accepted that that approach was the appropriate starting point. Ie. That despite there being no legal obligation to wear a helmet, a cyclist not doing so ‘’has only himself to thank for the consequences ’’ and that subject to issues of causation ‘’any injury sustained may be the cyclists own fault’’.
For us cyclists this reinforcing of the Smith v Finch stance is a worry and it’s a shame that the same was not challenged. I am sure that at some point in the future when a cyclist does fall foul of this stance the CDF will be willing to seriously look at funding an appeal.
As with the Smith v Finch decision, the expert evidence in this case confirmed that even with a helmet Tobias would still have suffered the injuries that he did. The Defendants allegation of contributory negligence in respect of causation therefore failed.
What is encouraging to see is that at various points throughout the judgement reference is made to the vulnerability of cyclists and the damage that a motor vehicle can cause, highlighting the standard of care motorists owe to cyclists.
Interestingly, when it came to the issue of damages, the court applied a stance that is mirrored in previous child cyclist case law. Although he was 16 at the time of the accident, and by all accounts a experienced and competent cyclist, the court still had to consider what was just and equitable.
Although Tobias was considered to be 50% at fault due to him creating an emergency situation the court also held that ‘’although normally a prudent careful cyclist, he did not have the maturity and judgement of an adult’’. It was therefore ‘’just and equitable to reduce the damages recoverable...….by one-third, the liability of the Defendant being two thirds’’
This extra protection afforded to child cyclists (even those who enter the road from the pavement) is something that should be applauded.
So, an interesting example of how the court comes to a decision.. The judgement itself is well worth a read, even for one that is not legally trained. It contains reference to various studies that many would find of interest.
Cycling case raises number of issues - good and bad. - Cycling blog