I am surprised that the the Court of Appeal did not increase the cyclist’s contribution even more given his use of the pavement. This conduct has become a norm and could be reduced by the Higher courts dealing with them in this way.
My initial reaction to the Trial judge’s decision confirmed by the Court of Appeal in increasing the contribution to 50%. At 16 one is fully aware of the risk of coming of the pavement without due regards to other road users.
TOBIAS PHETHEAN-HUBBLE v SAM COLES (2012)
CA (Civ Div) 21/03/2012
A judge had been entitled to conclude that a car driver’s speed had caused an accident with a cyclist, who had turned from the pavement into the road in front of the car, but it had not been just and equitable to reduce the cyclist’s contributory negligence from 50 per cent to one third because of his young age.
The appellant car driver (C) appealed against a decision ((2011) EWHC 363 (QB)) that he was liable to the respondent bicycle rider (P) for personal injury. P cross-appealed against the judge’s assessment of his contributory negligence.
P had been cycling along a payment when he turned into the road and was struck by a car driven by C. At his first police interview C estimated his speed as 35 mph. At trial he said that it was about 30 mph. The speed limit for the road was 30 mph. The judge found that C was liable for causing the accident, but that P had contributed by leaving the payment in such a way that he was bound to move into the path on an oncoming vehicle. The judge assessed P’s contributory negligence at 50 per cent, but found it just and equitable to reduce it to one third to reflect his age of 16. The judge found that: C had been travelling at 35 mph; the distance travelled after impact was consistent with a speed of 35 mph; at 35 mph there had been no chance of avoiding the collision; C should have been travelling at 26/27 mph; at a lower speed there would have been a greater likelihood that P’s behaviour would have been modified and that P would have had longer in which to react in a way that might have avoided the accident; at a lower speed C would have had more time to react and take evasive action that might have avoided the collision; and P’s injuries would have been less severe if C’s speed had been lower.
The issues were whether the judge had erred (i) in finding that C had been travelling at 35 mph;
(ii) in finding that C should have been travelling at a speed lower than the speed limit;
(iii) by applying the wrong causation test;
(iv) by finding that P would have modified his behaviour if he had more time to become aware of the oncoming vehicle, where he had also made a finding that P had seen and heard C’s car;
(v) in finding that at a lower speed C would had more time to react and take evasive action, and P’s injuries would have been less severe;
(vi) in his assessment of contributory negligence.
HELD: (1) The difficulty with the judge’s reliance on the distance of travel from the point of impact as an indicator of speed was that he had not set out how he did his calculation or sufficiently indentified the assumptions on which it proceeded. However, it had been open to the judge, having seen C give evidence, to take the view on the totality of C’s evidence that 35 mph was the correct pre-impact speed. It was not contradictory for the judge to find C truthful, but to rely on his first account of his speed rather than his evidence in the witness box .
(2) Determination of the speed at which C should have been travelling was particularly a matter for the judge, and it was not possible to say that his conclusion was without foundation or plainly wrong .
(3) Despite shortcomings in the judge’s formulation of the causation test, it was tolerably clear that he had investigated the issue of causation along traditional lines .
(4) The finding that P might have modified his behaviour if he had more time to become aware of the vehicle, and the finding that P had been aware of the vehicle, might initially appear inconsistent, but “awareness” was capable of involving an element of assessment of other things about a vehicle in addition to its presence on the road, in the instant case notably its speed. The extra time might have enabled P to assess the situation better and he might have modified his behaviour by waiting until the car had passed.
(5) The judge had been entitled to say that, at a lower speed, C would have had more time to react and take evasive action, and that on the balance of probabilities P’s injuries would have been less severe .
(6) The judge’s contributory negligence starting point of 50 per cent had been open to him on the facts, but it had not been just and equitable to reduce the damages by one third. There was no reason to treat P as if he were anything other than an adult .
(7) The judge had been correct in his conclusions on causation, but damages would be reduced by 50 per cent to reflect P’s contributory negligence.
Appeal dismissed, cross-appeal allowed