Phethean-Hubble v Coles. The Court of Appeal and a potentially revolutionary approach to causation

A year ago I commented upon the decision of HHJ Wilcox in Phethean-Hubble v Coles.  The Court of Appeal have now handed down their Judgment on Sam Coles's appeal against the finding that he was two thirds to blame for the collision which resulted in serious injury to Tobias Phethean-Hubble.

I set out the facts in my earlier commentary on HHJ Wilcox's Judgment.  In brief summary the facts and findings of the trial judge were as follows:
1.  Tobias (age 16) had been riding his bicycle at night without lights, and without helmet,  along the pavement of a long straight road with street lights, with one carriageway in each direction and with a speed limit of 30mph.
2.  Sam (age 17) was driving his mother's car in the same direction at a speed of 35mph.
3. Tobias left the pavement at an angle in order to cross to the pavement on the other side of the road.  He rode into the path of the car and a collision occurred about 1.5 metres from the kerb.
4. At the speed at which Sam was travelling there was no chance of avoiding the collision.
5. Sam had seen Tobias on the pavement and should have anticipated that he might move into the road and should have moderated his speed to 3 or 4 mph below the speed limit.
6. That reduced speed would have resulted in a greater likelihood of avoiding the collision or reducing the severity of Tobias's injuries.
7. The non-use of bicycle lights or a cycle helmet made no difference to the collision or its consequences.

In the Court of Appeal, both sides appealed the Judge's findings as to Sam's speed (though the Claimant's argument that the finding should have been of faster speed was more muted than the Defendant's that the finding should have been slower).  Sam had originally told the police that his speed was 'about 35mph'  [My comment: an odd thing to say to a police officer about your speed in a 30 mph area if, as subsequently claimed he was in fact travelling at 30 mph, unless there is some cultural norm among motorists that a few miles an hour over a speed limit is really quite acceptable].  Perhaps therefore it is not surprising that (whatever the problems with trying to cross check this with the physical evidence) this finding was upheld.

Next, the Defendant attacked the Judge's finding that a safe speed in the circumstances was 26/27 mph.  Again, though with 'considerable anxiety' the Court of Appeal upheld this finding.  [My comment:  it would have been an easier finding had the Judge been more, rather than less, ambitious.  In the context of his finding that Sam should have anticipated that Tobias might ride into the road, slowing to 20mph might have made some meaningful difference.  The Court's anxiety appears to have related to this fine tuning of a figure so close to the speed limit.  But this perhaps endows the speed limit with too much importance.  The determination of a safe speed depends upon the circumstances; it will very often be slower than the limit (and even according to some of the older cases higher than the speed limit).  At all event the Judge's finding was that Sam should have been going some 20% slower than he was].

The next point was the one of greatest danger for Tobias; that was, would the slower speed have made any difference.  The Judge had, at best, expressed himself unsatisfactorily when talking about 'likelihoods'  when our law of causation requires these matters to be determined on the balance of probabilities.  The finding more happily expressed would be that it is more likely than not that had Sam been travelling at 26/27 mph, the collision would not have happened.  The Court of Appeal accepted that that is what the Judge meant and upheld his decision that Sam's excessive speed had caused Tobias's injuries.  Perhaps the most important observation to be derived from this case is that the burden of proving that Tobias's injuries would have been of similar severity even had Sam been travelling at a safe speed rested on the Defendant.  Once the Claimant had established that the Defendant was in breach of his duty of care and that the Claimant had sustained an injury of the kind likely to be caused by that breach then it is incumbent upon the Defendant to disprove causation.  That is potentially a significant development of the law which may be of real assistance to cyclists (and other injured Claimants).

Finally the Defendant appealed the Judge's finding that the level of contributory negligence should be one-third.  The Judge had said that the degree of contributory negligence would have been one half but that it was just and equitable to reduce it because of Tobias's age.  The Court of Appeal agreed with the Defendant that there was no reason to treat Tobias as if he were anything other than an adult in this respect and allowed the appeal to the extent of increasing the contributory negligence from one third to one half.

Metropolitan Police Consultation - The results

I raised the Metropolitan Police Consultation exercise last October.  I have now received an email thanking me for my contribution and enclosing a Newsletter.  This indicates the Metropolitan Police's priorities and what they are doing about them.  Disappointingly, unless you can count running down cyclists as 'anti social behaviour' (top of the list) then there is not a mention anywhere of tackling the danger imposed by some motorists.
On the other hand 'anti social behaviour' probably can be interpreted as including such matters as riding a bicyle on the pavement or banging the side of a vehicle that has just put you in danger.  The newsletter endows ASB with its own acronym but does not really indicate what it is.  Some clues are I suppose to be found here.
It is disappointing that bad and aggressive driving does not feature anywhere.

A30 Egham Hill

I was deeply saddened to learn that a young student attending Royal Holloway College near Egham was killed on the A30 Egham Hill earlier this month.  She was a pedestrian and was struck by a car.  It is a road I know well with multiple central reservations and pavements often busy with young students making their way to and from Egham.  I know, and say, nothing of the circumstances of the accident but I have an opinion that traffic often passes along this road too fast.  The road is subject to a 40 mph limit which is often exceeded with apparent impunity.  For the duration of the Olympics this road will be subject to a 30 mph limit.  Assuming that the 30 mph limit is imposed and enforced this summer, I very much hope that consideration will be given to maintaining and enforcing it on a permanent basis.  After all the life of any one of us is equally valuable whether we are an Olympic athlete or official or an ordinary citizen.
It seems to me that this a classic example of where effective measures to protect vulnerable road users must include regulating motor traffic and not merely providing cycling infrastructure.  The 'cycling infrastructure' in this case is an invitation to share the pavement with the many pedestrians who use this road.  It is not easy for a cyclist to take the lane past the traffic islands because it is a pretty steady climb and the speed differential between the cyclist and the approaching motorist is correspondingly high.  We need safer speed limits more rigorously enforced.
Thankfully, once the clocks go forward later this month I will be using the alternative route through Windsor Park.  Unhappily Her Majesty does not allow me through there after dusk.
Here are a couple of my recent expereinces on this stretch of road:

Cycle Helmets

I have updated my paper on cycle helmets for a talk presented to the Association of Personal Injury Lawyers last Tuesday.  It can be downloaded here  It may be quoted from or otherwise used provided that my authorship is acknowledged.

The Leveson Inquiry and the Police

Former Deputy Assistant Commissioner Peter Clarke told the Leveson Inquiry last week that one reason the Metropolitan Police had failed to act upon the evidence they had of telephone hacking in 2006 was that fighting terrorism was being given higher priority.

"..the minutiae of whether there was circumstantial evidence against journalist A, B or C is a minor consideration in comparison with the consideration of what poses a threat to the lives of the British public.  Invasions of privacy are odious, obviously.  They can be extraordinarily distressing and at times they can be illegal, but, to put it bluntly, they don't kill you."

That might well be right but one thought for the Metropolitan Police (and other forces) is that as a cycling member of the British public my life is threatened far more by bad, inconsiderate aggressive and hostile driving than it is by terrorists.  Quite rightly, we do not make excuses for terrorists; I am at a loss to understand why I have had so many communications with the police in which they appear willing to make excuses for motorists who threaten and endanger the lives of the British public.

Finchley RT Magic homes Crits

Probably about 40 of us older guys showed up for the Masters Race at Hillingdon this afternoon. Haven't raced for 3 weeks; what a change 3 weeks makes. Temp 13 deg rather than 0 deg; racing clockwise, finish line hut gone; signs of something being constructed by the apron; daffodils out. Lovely sunshine but with a brisk southwesterly. Seemed fast to me (I left the Garmin at home so no stats today). Nobody there much more than 10 years younger than me but they could of course be any cat. and were no slouches. A very attacking race. Initially I tried to get involved but it did not take long to realise I did not have the legs for it and was just being left in no man's land. Things speeded up anyway and I was soon sat at the back with my usual friends. Hung on in there for an hour. A group of about 8 got away so our sprint was a bit muted and I stuck in the bunch.