Thursday 3 March 2011

Legal Update - Spring 2011

First, it's cycle helmets again.  Last week His Honour Judge Wilcox sitting as a Deputy Judge of the High Court delivered his Judgment in Phethean-Hubble v Coles.  On 28th November 2005, Tobias Phethean-Hubble, then aged 16, suffered severe brain injuries when he was cycling and came into collision with a Rover motor car driven by the then 17 year old Sam Coles.
Tobias's cycling was not above criticism; immediately prior to the collision he was cycling at 8pm unlit along the pavement and moved onto the carriageway of the road into the path of the Rover.  The street was, however, well lit and Sam had no difficulty seeing Tobias.  The failure to carry lights at night therefore only affected the outcome to the extent that it may explain why Tobias had been riding on the pavement, where the Judge observed that 'strictly' he should not have been.
The area was subject to a 30 mph speed limit.  At trial there was an issue over speed with Sam accepting a speed slightly in excess of the speed limit and those representing Tobias alleging a rather greater speed.  In the event the Judge found that the speed was 35 mph and found Sam to be liable for Tobais's injuries because of his excessive speed.
The Judgment is promising in that it accepts the dangers of speeding and emphasises the vulnerability of the cyclist.  There was a finding that a reasonable motorist ought to have anticipated that the cyclist riding on the pavement would move into the road and a prudent motorist should have been prepared for such an eventuality and driven accordingly.
Driving 'accordingly' essentially meant moderating his speed.  At 35mph there was no chance of avoiding the collision, he should not merely have been driving within the speed limit but should have slowed to 3-4 mph or so below the limit.  At that speed there was a greater likelihood that the cyclist would have become aware of the approaching car in time, and the motorist would have had longer to react so as to avoid the collision, or at least cause less serious injury.  Emphasis was placed on the significant difference between the two road users.  One a cyclist with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
The Judge also found fault on the part of the cyclist in riding onto the road creating the emergency.  He found this was an equal cause of the accident but given Tobias's age he considered a reduction of one third for contributory negligence was just and equitable.
There was in addition criticism of Tobias for not wearing his cycle helmet.  The Judge accepeted as his starting point the words of Griffith Williams J in Smith v Finch who had likened fault on the part of a cyclist not wearing a helmet to fault on the part of a motorist for not wearing a seat-belt.  On the face of it this is another blow for those who wish helmet wearing to be a matter of personal choice rather than external prescription.  However the authority of the decision on this point is weakened by the fact that the contrary High Court authority A v Shorrock was not cited to the Judge and, rather extraordinarily, it appears that it was not even argued on Tobias's behalf that he was not at fault in leaving his helmet at home.  As it was, the Judge made passing reference to risk compensation and to the fact that helmets may sometimes make injuries worse; suggesting a distinct possibiltiy that he may not have followed Smith v Finch had the matter been argued out.
As always (at least thus far) in cases of severe impacts, the finding was then made that the wearing of a helmet would not have made a significant difference to the extent of Tobias's injuries.

Comment.  Although Claimant cyclists can usually be fairly confident that a Defendant motorist will be unable to establish that a helmet would have made any difference, this is not a good reason to permit assertions that a bare-headed cyclist is at fault to go uncontested.  It is inimicable to the interests of cyclists generally to allow a series of cases to build up on a premise that not wearing a helmet equates to fault.  I hope that this is the last time that such an assertion will be allowed to go unchallenged.
Aside from the helmet issue though there is much in the Judgment about the standard of care owed to cyclists by motorists and about the dangers of even 'moderate' speeding to merit a cheer.  I believe it to be a useful antidote to the mantra that I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc.  As I have made clear before, I personally reject this artificial 'evenhandedness' which is blind to the degree of potential to do harm to others.

[UPDATE:  The Defendant's appeal against this Judgment was heard yesterday (28.11.11) and Judgment is awaited.  The Defendant did not appeal the finding that a cycle helmet would have made no difference but there may well be some observations form the Court of Appeal on the degree of contributory negligence].

Death on the roads is sadly continuing at much the same rate this year, notably the 18 year old potential Olympian, Lewis Balyckyi, was run down by a Transit van and killed whilst out training in Lancashire in January. 

In the criminal courts, the motorist responsible for the death of Cath Ward of Solihull CC was sentenced last December to a community order and disqualified from driving for one year.  Cath had been competing in a 10 mile time trial last summer in good weather conditions on the A46 dual carriageway when she was hit from behind by a car driven by Arron Cook.  Prosecutors decided to charge Cook with causing death by careless driving rather than by dangerous driving.  (It is possible this case differs significantly from that of Major Gareth Rhys-Evans, see my legal review a year ago, but I do not see it as obvious from any of the reports).  The result of this charging decision was that the Magistrates were empowered to, and rather unusually did, deal with the sentence themselves rather than referring to a higher Court.  I continue to wish for greater consistency in charging and sentencing decisions in cases that involve killing, harming or endangering vulnerable road users.


  1. "I hear often (even sometimes from cyclists) that cyclists are just as much to blame, just as responsible etc" This bugs me, if I go out on my bike I have a responsibility to ride safely, if I go out in my car I have a responsibility to everyone in the vicinity to drive safely. Not the same at all.

  2. Martin, what wonderful news. As I read I feared the worst - it's good to see some sense in Uk justice at last!
    I wonder if you could help settle something which I can't get my head around.
    I am chair of Bournemouth Cycling Forum. Last night I challenged the Police Rep on the forum over pavement cycling.
    I read that the Home Office (with the blessing of Chief POs) has issued guidelines for the 1999 law allowing on the spot fines...
    "CSOs and accredited persons will be accountable in the same way as police officers... ...The Government have included provision in the Anti Social Behaviour Bill to enable CSOs and accredited persons to stop those cycling irresponsibly on the pavement in order to issue a fixed penalty notice.
    I should stress that the issue is about inconsiderate cycling on the pavements. The new provisions are not aimed at responsible cyclists who sometimes feel obliged to use the pavement out of fear of the traffic, and who show consideration to other road users when doing so. Chief officers recognise that the fixed penalty needs to be used with a considerable degree of discretion and it cannot be issued to anyone under the age of 16. (Letter to Mr H. Peel from John Crozier of The Home Office, reference T5080/4, 23 February 2004)
    The current 'crackdowns' on pavement cycling prompted by community requests seem to totally disregard this. When I asked him, PC Rob Hammond said that 'it's down to the discretion of the officer'. I tried to get him to acknowledge that if the HO (with Chief Police Officers) have issued these guidelines then officers shouldn't do anything to responsible cyclists. He declined to agree just saying they'd be asked to stop doing so but not fined if they complied.
    What's the status in law? It seems to me that Police policy is being decided from the bottom up rather than top down? The guidelines are clear to me - what happens if it goes to court to contest a fine?

  3. Read the "j.voelcker extract" in your other post and 9 deaths a day is not an acceptable price being imposed on the community for the privelege of ALL driving vehicles on British Roads !
    One death of a "VRU" is one too many considering the current "There but for the Grace of God" attitude that exists !

    How can the Judiciary continue with this laissez faire behaviour ?

    Currently unable to use a bike through a repeat bout of Embolisms so i hope as a pedestrian to avoid some of the risks that i was exposed to at speed on the bike .

  4. Mikey, send me an email if you want advice on a specific problem. The general answer is that if you go to Court for riding on the pavement you will get a fine.

  5. Martin, do you think a law of "strict liability" (or should that be "proportionate liability"?) be of use in dealing with these cases? As a lawyer, do you think such a law could be made to work?

  6. As the parent of Tobias, and having sat through the giving of all the evidence, as well as reading the Judgment in full. I think you have simplified the findings somewhat in your summary on the blog, and the interpretation I had of what was said by the parties concerned, in the correct context, was somewhat different to the opinions and interpretation you express.

    Best wishes Shani