Further development on the case of Phetean – Hubble v Coles
The Defendant appealed on a number of points, The claimant cyclist cross appealed and teh judgment from teh court of appeal was published this week.
http://www.bailii.org/ew/cases/EWCA/Civ/2012/349.htmlIn short:
In the origianl case HHJ Wilcox found in favour of the cyclist subject to a deduction for contributory negligence. He found that in leaving the pavement and hoping onto the road the cyclist should be found to be 50% responsible. However, as he was a minor at the time of the accident this was reduced to a one third deduction.
The original finding as to the defendants speed was appealed by both parties. The cyclist seeking a finding that the speed was faster than established, and the Defendant seeking a finding that it was slower than established. I think unsurprisingly, that in the absence of any additional evidence – The original finding in respect of the Defendants speed was upheld – They also upheld the finding that a safe speed in the circumstances would have been 26/27 MPH – some 10% lower than the 30mph speed limit.
The court also confirmed a finding that had the defendant have been travelling at 26/27 mph, the collision would not have happened and upheld the decision that the Defendants excessive speed had caused the cyclists injuries
At this stage therefore the Court of Appeal had upheld all of the original Judges findings, however more importantly for child cyclists was the Courts final finding.
HHJ Wilcox originally found the cyclist to be 50% contributory negligent but reduced this to one third because it was deemed to be just and equitable to do so for a child.
During the appeal process the Court discussed the level of contributory negligence as the Defendant argued that the cyclist should be dealt with as if he was an adult.
The Court agreed and allowed this aspect of the appeal, increasing the contributory negligence from one third to 50%.
