If you found BAILII useful today, could you please make a contribution?

Your donation will help us maintain and extend our databases of legal information. No contribution is too small. If every visitor this month donates, it will have a significant impact on BAILII's ability to continue providing free access to the law.

Thank you very much for your support!


BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Phethean-Hubble v Coles [2012] EWCA Civ 349 (21 March 2012)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/349.html
Cite as: [2012] EWCA Civ 349

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


Neutral Citation Number: [2012] EWCA Civ 349
Case No: B3/2011/0647

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE WILCOX (SITTING AS A HIGH COURT JUDGE)
HQ09X03750

Royal Courts of Justice
Strand, London, WC2A 2LL
21/03/2012

B e f o r e :

LORD JUSTICE LONGMORE
LADY JUSTICE BLACK
and
LORD JUSTICE TOMLINSON

____________________

Between:
TOBIAS PHETHEAN-HUBBLE
Appellant
- and -

SAM COLES
Respondent

____________________

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)

____________________

Mr Benjamin Browne QC & Mr Roger Harris (instructed by Cordner Lewis) for the Appellant
Miss Susan Rodway QC (instructed by Augustines Law) for the Respondent
Hearing dates : Tuesday 29th November 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lady Justice Black :

  1. On 28 November 2005, there was a collision between a bicycle and a car in the vicinity of the Whitchurch Leisure Centre in Bristol. The bicycle was being ridden by Tobias Phethean-Hubble, then aged 16. The car was being driven by Sam Coles, then aged 17. Mr Phethean-Hubble suffered very serious head injuries and will have life-long disabilities as a result.
  2. Mr Phethean-Hubble, suing by his litigation friend, brought an action for damages against Mr Coles, alleging that the accident was caused by Mr Coles' negligence. For simplicity's sake, I will refer to Mr Phethean-Hubble as "the claimant" and Mr Coles as "the defendant", using their titles from the litigation in the court below.
  3. On 24 February 2011, HHJ Wilcox, sitting as a High Court judge, gave judgment for the claimant for damages to be assessed, subject to a reduction of one third for contributory negligence. The defendant appeals against that determination, submitting that the judge was wrong to find liability established or, alternatively, that he made insufficient deduction for contributory negligence. A respondent's notice has been filed on behalf of the claimant seeking to uphold the judge's finding as to primary liability on a further ground and, by way of cross appeal, to dislodge the judge's determination as to contributory negligence, it being submitted that the judge should either have found no contributory negligence or, failing that, contributory negligence of less than one third.
  4. The witnesses at trial

  5. The claimant's injuries were such that he has been unable to give any account of the accident. There were no independent witnesses to what happened. The judge therefore had to make his findings based on the evidence of the defendant together with information collected from the scene and expert evidence. As well as some lay witnesses, evidence was given by Mr Porter, a consultant neurosurgeon, and two experts in road traffic accident reconstruction, Mr Sorton who gave evidence on behalf of the claimant and Dr Searle on behalf of the defendant.
  6. The basic facts

  7. The judgment (which can be found in full on www.bailii.org) set out an account of the accident. From it I extract these basic facts.
  8. The accident occurred at about 8 p.m.. The claimant had been to fetch his bicycle from a friend's house where he had left it the previous day. The road where the accident occurred, Bamfield, is a long straight road with one carriageway in each direction and with a speed limit of 30 mph. For some of the way, alongside the rear of the Leisure Centre, a 2.5 metre wide footpath runs beside the road and the claimant was riding north along that footpath. It was dark but there was street lighting which the judge found provided reasonably good visibility to both the cyclist and the car driver and enabled the defendant to see the claimant notwithstanding that he was not displaying a light either on his bicycle or on his clothing.
  9. The defendant was driving his mother's automatic car along the road, travelling north like the claimant. He was making a very short journey to visit a friend. He had passed his test recently, on 16 November 2005. He had not driven an automatic car before the day of the accident but on that day his grandfather had taken him out in the car, driving around Bristol, so that he could familiarise himself with the car and the automatic gearbox.
  10. The accident happened when the claimant rode his bicycle off the nearside pavement into the road at an angle and into the path of the defendant's oncoming car. Following the impact between the vehicles, the claimant passed over the bonnet of the car. He struck the nearside of the windscreen and his head struck the top of the windscreen and the leading edge of the roof before he made contact with the roof itself and ultimately came down on the road gravely injured.
  11. The central issues for the judge

  12. The judge said that the central issues for him to determine related to the speed of the defendant's car at the time of impact. He set himself the following questions (§42):
  13. "Was the defendant driving too fast, if he had been driving slower would he have been able to avoid the accident?"

    Findings made by the judge

  14. The judge found that the claimant was going home for supper (§102) which meant that his options were to continue down the footpath, to come off the footpath and carry on his journey on the road, or to cross the road and ride home on the opposite pavement (§103). He considered that, knowing he had no rear lights, the claimant "may well have been going over to the opposite pavement to ride in safety there towards his home" and would logically have crossed the road at an angle to do this (§104). He found that the angle between the car and the bicycle at the moment of impact would have been in the order of 25/30° (§105). He found that the claimant's speed when he hopped his bicycle from the pavement onto the road was in the order of 8 to 10 mph (§111). He found that the claimant had seen and heard the defendant's car and that it was "likely that in the artificial light he misjudged the speed of the oncoming vehicle when he commenced his manoeuvre" (§130).
  15. As for the defendant, the judge found that he was driving at 35 mph when the claimant started to cross the road (§117). He found that the defendant's avoidance strategy was to swerve then brake (§118) steering the car towards the offside carriageway as he had described in the account he gave in January 2006 of the accident (§100). He found that the defendant "was a relatively inexperienced driver whose reaction time in an automatic car would in all probability be longer than that of a more experienced driver wholly familiar with the car" (§120). However, he also recorded the agreement of the experts that there was no indication that the defendant was slow to respond to the emergency created by the claimant riding out into the carriageway (§98).
  16. The experts agreed that the bicycle was struck by the nearside front corner of the car on the offside of its rear wheel near the crank when it was approximately 1.5 metres into the road from the nearside kerb (§§12 and 17). The judge found that in all probability the precise point where the impact occurred was marked by a crescent shaped scratch mark in the road surface of the nearside carriageway 1.5 metres from the kerb which was consistent with damage marks on the bicycle handle bars (§18). The bicycle was moved after the accident by a passer-by although he replaced it some hours later in what he estimated was the correct position (§87), 18 metres further north from the first glass fragment from the car's sun roof found in the nearside carriageway (§88). However the member of the public concerned did not provide a statement or give evidence and the judge found difficulty in placing reliance on this positioning of the bicycle on the road (§89).
  17. The judge found that the conjunction of the start of the glass fragments in the road, the crescent shaped mark and the final position of the car enabled the inference to be drawn with reasonable certainty that the car travelled slightly more than 34 metres following the impact before stopping (§20). It came to rest on the offside carriageway facing the direction of travel with its offside 1.4 metres from the kerb and parallel to it (§16).
  18. The claimant came to rest in the gutter on the offside of the road alongside the stationary car, 2.5 metres behind its front (§21).
  19. It was important for the experts' calculations as to speed to determine whether the claimant was carried on the car at all before coming down on the ground. The judge said (§77):
  20. "I do not accept that there was no carriage on the roof. "

    and later (§82) that he was:

    "driven to the conclusion that on the facts of this case there may have been some carrying as opposed to mere contact at the level of the windscreen and roof following impact…."

    The defendant's actual speed at the time of impact

    The parties' positions with regard to the defendant's speed

  21. In the Grounds which accompanied the Respondent's Notice, the claimant asserted that the judge was wrong to reject Mr Sorton's evidence that the speed of the defendant at the time of the collision was 45 mph; this was put forward as a factor which would be material to the question of contributory negligence and would constitute an additional ground on which the judge's finding of primary liability should be supported. The issue was pursued by way of written submissions in the claimant's skeleton argument for the appeal but not ultimately pursued in oral argument. Ms Rodway QC for the claimant conceded that whilst she would have preferred that the judge had accepted the evidence of Mr Sorton, she could not argue that it was wrong of him to have rejected both experts on the question of speed. Whilst there was other material which she submitted would have entitled the judge to find that the defendant was travelling at more than 35 mph, she indicated that she simply sought to support the judge's finding which she argued was very fair, indeed generous, to the defendant. In fact, having read the reports of the experts and the transcript of their evidence myself, I did not find it surprising that there was no continuing attempt to persuade us that the judge should have found a higher speed than he did.
  22. As a result of the adjustment of the claimant's position, the issue before us as to the defendant's actual speed at the point of impact was confined to whether, as the defendant argued, the judge erred in finding that he was travelling at 35 mph and should have found that he was travelling at 30 mph or at most 32.5 mph.
  23. The basis for the judge's finding of 35 mph

  24. To ascertain the basis of the judge's finding that the defendant was travelling at 35 mph, I think one must put together a number of paragraphs from different parts of the judgment. Ultimately, it seems to be an amalgam of the defendant's own evidence and the distance travelled by the car after the impact.
  25. The judge discarded evidence that he felt would not assist him. He found the evidence of the neurosurgeon Mr Porter to be impressive but not of assistance in relation to the defendant's pre-accident speed (§95) and he found both accident reconstruction experts "of limited assistance" on the subject (§96).
  26. Mr Sorton's evidence was that the defendant would have been travelling at a speed of 41-50 mph at the moment of impact (§49 of the judgment). He fixed at times more precisely on a speed of "about 45 mph" as the judge recorded in his judgment (§43) although Mr Sorton said that he was not "being categorical at 45" (transcript 2/115).
  27. Dr Searle gave the opinion in his report (§15.2) that "as he neared the accident scene, [the defendant] had reached a speed of about 30 mph". His opinion as recorded in the joint statement of the two experts was that the impact speed was about 28 mph (§18). His evidence about this at trial is not recorded in the judgment but one can see from the transcript (2/142) that he said that there was nothing to demonstrate that the defendant's estimate of 30 to 35 mph was wrong and the general tenor of his evidence was that the defendant's speed was around 30 mph.
  28. The judge's reason for declining to rely on either Mr Sorton or Dr Searle was that both experts "to a degree assumed the mantle of advocate". He identified respects in which their evidence had been flawed.
  29. Having discarded or marginalised these pieces of evidence, the judge then said (§97):
  30. "At the end of the day the court is left with the evidence of the Defendant as to his probable speed."
  31. Clearly, therefore, the defendant's own evidence was a very important part of the foundations for the judge's finding. He found the defendant a truthful witness (§40). He said that a motorist's recollection and analysis of the sequence of precise actions taken in split seconds in moments of crisis is not easy or necessarily reliable however honest the witness (§37) but that:
  32. "38. An account of speed however in my judgment in circumstances such as these may be more reliable particularly when reflected upon and confirmed afterwards."
  33. The defendant's first account of the accident, which put his speed at about 35 mph, was given to the police at the scene. He said (so far as is material for present purposes):
  34. "I was coming down Bamfield Road travelling at about 35 mph…. as I was coming down a bloke on a push bike was riding on the pavement to my left travelling in the same direction as me. When I got closer to him, he wheelied his bike off the kerb into the road. He did it diagonally across the road without looking at all. I immediately slammed on my brakes as soon as I saw what he was doing, but I could not avoid colliding with him…."
  35. The defendant's next account was given in his statement of 16 January 2006, which was based on questions put to him by an insurance investigator. In it, he put his speed at about 30 mph. He said that he had accelerated normally along Bamfield Road with a good clear view of the road ahead and that:
  36. "21. I drove along Bamfield Road reaching a speed of about 30 m.p.h. There is a speed warning and camera slightly further along this road so most people stick to 30 m.p.h.
    22. I maintained my road positioning about a metre from the kerb. The pavement to the nearside is quite wide and I had a good view of the pavement as I was driving along.
    23. I drove past Paddock Garden about three car lengths when I saw a pedal cyclist riding on the pavement to my nearside. He was travelling in the same direction as me. I couldn't say whether the cyclist was going very fast or not.
    24. The pedal cyclist was definitely not displaying any lights. The rider I believe was wearing dark clothing. I watched him for a short time then placed my eyes back on the road ahead.
    25. I had travelled a very short distance, maybe only a few car lengths when the cyclist suddenly and without warning was ridden [sic] off the kerb and straight into my path. The rider definitely didn't check to his rear before leaving the kerb.
    26. The cyclist landed quite far into the road, landing well over a metre from the kerb. When the cycle was ridden into the road I was literally less than a car length away.
    27. I had absolutely no time to react, I think I may have swerved to the right but any braking came after the impact. I had no time to sound my horn.
    28. The front nearside wing of my car hit the cyclist, I cannot be sure what part of the cycle made contact. It was all so fast. At the time of the impact I would say that I was still doing 30 m.p.h.
    29. Immediately after the impact I slammed on the brakes. The rider was thrown off his cycle and came up onto the bonnet, making contact with the nearside of the windscreen.
    30. I didn't see what happened to the rider after he hit the windscreen, I didn't see what happened to the cycle at all.
    31. I came to a halt almost immediately, my car had crossed the centre white lines where I had swerved….
    43. In my opinion the accident is completely the fault of the pedal cyclist. I was travelling within the speed limit and in a normal manner when the cyclist simply rode out directly in front of me without even checking to his rear. I had no chance to avoid a collision or take any evasive action."
  37. When interviewed by the police on 25 January 2006, the defendant said he thought his speed would have been roughly around 30 to 35 mph when he first saw the claimant (trial bundle 184) and that the claimant "wheelied off the kerb….not a full blown wheelie like a bunny hop kind of jump off the kerb". He was asked what he did when he saw the cyclist come off the kerb and he said "Well its almost as if he's come off the kerb and it's straight away, it's instant, so I've, as soon as I've hit him I've swerved and then braked straight away, its just all happened so fast." When, in the light of calculations carried out on the basis of evidence found at the scene, the police officer explored whether he might have been travelling considerably faster at the time of the accident than he had said, he said he had been checking his speedometer from time to time as he drove along and he was adamant that his speed was no more than 30 to 35 mph. He attributed the accident to the cyclist jumping into the road with no warning and without looking and did not believe that he could have avoided it.
  38. At trial, the defendant put his speed at around 30 mph when giving evidence in chief (1/61). In cross-examination, he was asked why he had given a bracket of roughly 30 – 35 mph in the police interview (1/82) and replied that it was "Because I believe that was the most accurate speed that I was going".
  39. Looking at the totality of this evidence, therefore, it is clear that although the defendant's accounts of his speed were not hugely variable, it was not possible to identify one particular speed upon which he had consistently settled as he had given a speed of about 35 mph, about 30 mph, and 30-35 mph.
  40. The judge's view of what the defendant was saying can be gleaned from §39 and §118 of his judgment. In the earlier of the two paragraphs, the judge said that the defendant had "accepted from the outset that he was driving at or above the legal limit on the road and confirmed this to be the case in January 2006". In the later paragraph, the judge said:
  41. "I do not think that [the defendant] exceeded 35 mph but was aware as he candidly admitted that he was driving at or near 35 mph when the cyclist started to come across the road."
  42. The other element in the judge's finding as to speed is to be found in his §120. This reads:
  43. "At the speed the Defendant was travelling there was no chance of avoiding the collision. The distance travelled after impact is consistent with the speed of 35 mph given that the road was as described by PC Paine as a wet road and that the Defendant was a relatively inexperienced driver whose reaction time in an automatic car would in all probability be longer than that of a more experienced driver."
  44. The judge does not set out his workings in relation to the stopping distance of the car.
  45. The submissions in relation to the defendant's speed before impact

  46. Mr Browne QC for the defendant submitted that having accepted that the defendant was a truthful witness and having accepted that a motorist's account of his speed may be "more reliable particularly when reflected upon and confirmed afterwards", the judge should have gone on to accept the defendant's evidence at trial that he was travelling at "around 30 mph". This was consistent with his original witness statement of 16 January 2006 and it was submitted that it was also "not inconsistent" with his account to the police officer on the day of the accident that he had been travelling at "about 35 mph".
  47. It was submitted that the judge gave no reason for concluding that the defendant's speed was 35 mph rather than 30 mph, neither did he identify any additional evidence to support his conclusion, and that such evidence as there was in fact supported a conclusion that the speed was at the lower end of the defendant's evidence. During the trial, a paper by Haight & Eubanks entitled Trajectory Analysis for Collisions involving Bicycles and Automobiles had been produced. It was based on research using a dummy on a bicycle in collision with a car. The judge found that it produced helpful insights into the question of whether a cyclist's body is carried on the car after a collision (§67) but he did not refer to it on the subject of the defendant's likely speed at impact. It was submitted that he should have taken into account that the formula contained in the paper produced a range of likely pre-impact speeds for the defendant from 25.7 mph to 31.6 mph (which the judge set out at §62 in another context) even though he was not bound to accept the research as conclusive. The Haight paper showed that Dr Searle's formula for calculating speed could only possibly work for bicycle accidents, as opposed to pedestrian accidents, if the normal co-efficient of friction (or the throw distance) was halved; with that adjustment, the Searle formula would produce a speed of 32 mph (see judgment §65).
  48. As to the distance travelled by the car, the defendant submitted that if he had applied the brakes after the impact, as he had described in his statement and as is implied in the judge's finding that the defendant's avoidance strategy was to "swerve then brake", the final position of the car was entirely consistent with the speed at impact having been 30 mph.
  49. Ms Rodway stressed that what the judge concluded from the defendant's own evidence about his speed was a matter especially for the judge and this court should not interfere with his finding. He was able to consider not only the statements the defendant had made but also his demeanour in the witness box, the context in which his statements were made (including that the lowest speed was recorded in a statement taken by an insurance representative), and the fact that it was unlikely that the defendant would underestimate his speed.
  50. She submitted that the judge's cross-check of the conclusion he drew from the defendant's own evidence by reference to the stopping distance was generous to the defendant as it assumed a wet road whereas in fact the defendant himself had said it was damp. No one took us to a stopping distance calculation that was tailored to the circumstances as the judge found them to be but Ms Rodway invited our attention to Dr Searle's calculation (transcript 3/98 and 99). There he said that the pre-impact speed of a car on a wet road surface which was braking hard all the time from the moment of impact and travelled 34 metres before stopping would be 41.5 mph. Ms Rodway was prepared to concede that there would need to be a reduction for the fact that on the judge's findings the defendant swerved then braked so would not have been braking for the whole time after impact and argued that a figure of 35 mph was therefore very fair.
  51. The judge should not, in my view, be criticised for taking it that the road was wet rather than damp. The oral evidence revealed the difficulty in translating what people mean by wet or damp in relation to a road surface and it was entirely open to the judge to proceed on the basis of the description of a wet surface which appeared in the police report, even though the police officer arrived at the scene later.
  52. The difficulty with the judge's reliance on the distance of travel from the point of impact as an indicator of speed is however, I think, that he did not set out how he did his calculation or even sufficiently identify the assumptions upon which it proceeded. In view of his finding that the defendant's avoidance strategy was to swerve then brake, it could not be assumed that there was braking through the whole of the 34 metres from the point of impact. The judge did not identify when in the sequence he thought braking began, which would have enabled him to ignore such part of the distance travelled as preceded that. He clearly had it in mind that there would be some reaction time before braking began as he made allowance for the defendant having a longer reaction time than a more experienced driver who was wholly familiar with the car which would have extended the time before hard braking occurred. However even this attracted understandable criticism by the claimant because the judge also recorded (§98) that the experts agreed that there was no indication that the defendant had been slow to respond to the emergency and the two statement do appear to be somewhat inconsistent. The judgment does not set out any further information about the assumptions made about reaction times. There had been evidence about this. For example, Mr Sorton dealt with the question at transcript 2/104. He said that a prompt reaction time for someone who was on notice of a danger was conventionally taken as one second but it would probably be one and a half seconds otherwise. He also said that if the defendant had taken his foot off the accelerator already, it would be only half a second. The judge expressed no view as to which of these various scenarios was appropriate.
  53. In all these circumstances, I would be rather cautious about the judge's use of the distance of travel from the point of impact as a cross-check. However, I am persuaded by the claimant that it was open to the judge, having seen the defendant give evidence, to take the view on the basis of the totality of the defendant's evidence that 35 mph was the correct figure for the pre-impact speed. This was the first estimate that the defendant gave and the judge took it as a candid admission (§118) as I think he was entitled to do. He was not unaware that the defendant had given lower estimates; in §33 of the judgment, he set out specifically the account in the police interview of the speed being roughly around 30 – 35 mph. Furthermore, I do not see it as being contradictory for the judge to accept the defendant as truthful and yet to rely upon his first account of his speed rather than the account given in the witness box. The defendant was doing his best to estimate his speed and it would appear that the judge thought he had probably done so rather more accurately at the scene of the accident. I would therefore uphold the judge's finding that the defendant was travelling at 35 mph.
  54. The speed at which the defendant should have been travelling

  55. As to the appropriate speed for the defendant to be travelling in the prevailing circumstances, the judge said that:
  56. "115. Even at the maximum permitted speed of 30 mph [the Defendant] would have been at the limit of the margin of safety he ought to have afforded to other road users."

    and

    "121. The Defendant's speed ought to have been in the margin of 3/4 miles or so under the maximum speed limit of 30 mph."
  57. These views appear to be based on the potential hazards in the vicinity which the judge identified thus:
  58. "114. The Defendant would have known that there was no cycle path and that there was a real risk the cyclist could choose to come on to the road way rather than go down the footpath. He saw a cyclist who was not displaying lights and who therefore may not be so mindful to take such care of his own safety, that the motorist could rely upon his not coming into the road."
  59. We were also referred, by the claimant, to §43 where the judge said:
  60. "A reasonable motorist therefore ought to have anticipated that the cyclist riding on the footpath would move into the road and a prudent motorist should have been prepared for such a cyclist on the footpath to be about to cross into the road and driven accordingly."

    However, this paragraph begins by setting out evidence of the claimant's expert and I am not entirely sure whether this passage in it conveys the judge's own views or recounts what the expert thought. As §43 is all of a piece with §114 where the judge is undoubtedly setting out his own views, this matters little.

  61. The defendant submitted that the judge was wrong to find that he should have been going at a speed lower than the speed limit for the road. The only feature which could have dictated a lower speed was the presence of the claimant riding his bicycle on the pavement and this was not sufficient foundation for the judge's determination, it was submitted. No reason had been advanced as to why the defendant should have anticipated that the claimant would ride out. The defendant's evidence (transcript 1/61) was that the claimant looked like an adult and that he was riding "regularly". Whilst the defendant agreed with the proposition put to him by Ms Rodway in cross-examination (transcript 1/91) that he should have anticipated that the claimant might come out into the road, he added "but not where he was actually riding". This might have been a reference to claimant's position on the pavement or to the fact that the kerb was raised at that point although there were dips in it elsewhere. It was submitted that the defendant's position was entirely reasonable, particularly as he had seen the claimant proceeding along the pavement for some distance and there was no obvious reason for him to depart from it such as the end of the pavement or an obstruction in it. In addition, it was submitted, it was perverse of the judge to differentiate between 30 mph and 26/27 mph when the speeds were so close and such a small reduction in speed would not have served any useful purpose.
  62. The claimant stressed the unique opportunity of the trial judge to evaluate all the evidence, including that of the defendant in the witness box, and to decide in the light of it what a reasonable driver should have done, which was to take precautions including by maintaining a slower speed.
  63. This aspect of the case has given me considerable anxiety. Ultimately, I have concluded that the determination of the appropriate speed for the defendant to have been travelling was particularly a matter for the judge. It is not possible to say that his determination was without any foundation or plainly wrong and it is not therefore for this court to substitute its own views on the subject. I would therefore uphold the judge's conclusion that an appropriate speed in the circumstances would have been 26/27 mph.
  64. Causation

  65. A breach of duty of care was established by the judge's finding that the defendant was driving at 35 mph when the appropriate speed would have been 26/27 mph. The judge found that at the speed the defendant was travelling there was no chance of avoiding the collision (§120) but that was not sufficient to establish that the defendant's conduct caused the accident. The claimant had to prove that it was more likely than not that the defendant's wrongful conduct in fact resulted in the damage to the claimant.
  66. The judge dealt with causation, somewhat obliquely, in three paragraphs as follows:
  67. "122. At such a speed [26/27 mph] there is a greater likelihood that the cyclist would have been aware of the oncoming vehicle and modified his behaviour, and that the Defendant would have had longer time in which to react and take such evasive action as might have avoided the accident or at least caused less severe injuries.
    123. I do not accept the view expressed by Dr Searle that a collision was inevitable even at 5 mph. That predicates the scenario whereby the cyclist came out from the footpath having no awareness whatsoever of the oncoming vehicle with engine noise and displaying lights over a comparatively long period of time.
    124. I hold that the primary liability for this accident was that of the Defendant by virtue of the excessive speed at which he was travelling."
  68. Of these three paragraphs, the most significant is §122 which the defendant criticised as revealing that the judge was applying the wrong legal test. He submitted that the judge ought to have considered "whether if the Defendant had been travelling at a non-negligent speed the Claimant had established on the balance of probabilities that the accident would have been avoided or the injuries less severe". Instead the judge concluded that at a lower speed there was "a greater likelihood" that the claimant's behaviour would have been modified and that the defendant would have had longer to react in a way which "might have avoided" the accident or reduced the claimant's injury.
  69. The judge's §122 could have been more happily expressed and it is understandable that it should have attracted criticism from the defendant. Quite possibly his choice of words reflected the reality that in order to determine an issue of causation in circumstances such as those in this case, it is necessary to consider hypothetical events – how would the claimant and the defendant have acted and how would things have unfolded if the situation had been different? However, it seems to me that despite the shortcomings in the judge's formulation, it is tolerably clear from what he said that he was investigating the issue of causation along traditional lines and I would not be minded to overturn his decision about it on the basis that he misdirected himself as to the correct approach in law to causation.
  70. The defendant submitted that even if the language of §122 could be overcome, the judge's finding that travelling at a non-negligent speed would have improved matters was not tenable in the light of what he said elsewhere in the judgment and in the light of the evidence; the proper view was that at a speed of 26/27 mph the accident would not have been avoided and in these circumstances causation was not established. There were a number of reasons advanced in support of this line of argument.
  71. (a) Wrong to conclude that the claimant would have acted differently if the defendant was driving more slowly
  72. The defendant submitted that the judge's conclusion that the claimant would have modified his behaviour failed to take account of a finding made later in the judgment at §130 with which it was inconsistent. In §122, the judge was assuming that the claimant would have modified his behaviour because there would have been a greater likelihood that he would have been aware of the oncoming vehicle if it was travelling more slowly. However in §130 he proceeded on the basis that the claimant was aware of the oncoming vehicle, saying:
  73. "The likelihood is that this careful cyclist went into the road way in all probability having seen and heard the oncoming car. It is likely that in the artificial light he misjudged the speed of the oncoming vehicle when he commenced his manoeuvre of 'bunny hopping' the trail bicycle from the pavement into the road."

    The defendant argued that the premise for this latter paragraph is that the claimant came out into the road because he thought the car was travelling at a speed that would have allowed him to complete his manoeuvre safely, that is at a slower speed than the car was actually travelling. Therefore, the argument ran, it was perverse of the judge to conclude in §122 that if the defendant had really been doing a slower speed (that is to say precisely what the claimant mistakenly thought he was doing), the claimant would have acted differently.

  74. At first blush, the judge's findings in §§122 and 130 sit unhappily alongside each other. To make sense of §122 together with §130, it is necessary to interpret "aware of the oncoming vehicle" as denoting more than simple awareness that the car was there because §130 shows that the judge had concluded that the claimant did know that the car was there. However, awareness is capable of involving an element of assessment of other things about a vehicle in addition to its simple presence on the road, here notably its speed. It is not simply a case of mistakenly thinking, as it appears that the judge thought the claimant did, that the vehicle was going more slowly than it actually was. If the vehicle had in fact been travelling more slowly, there would have been a longer period for the claimant to evaluate its progress before he found himself in the path of it. At 27 mph, a car covers 12.07 metres per second whereas at 35 mph it covers 15.64 metres per second. The extra time may have enabled the claimant to assess the situation better and he may then have modified his behaviour, as the judge contemplated, for example by waiting until the car had passed.
  75. (b) Vehicles would still have collided
  76. The second reason that the judge advanced in support of a finding of causation was that the defendant would have had more time to react and take evasive action such as might have avoided the accident or caused less severe injuries. In this section, I deal with the first part of that proposition, namely whether the vehicles would still have collided had the defendant been driving more slowly. The second part, the impact of speed upon the claimant's injuries, will be the subject of the next section.
  77. The defendant argued that the collision would in fact still have taken place even if he had been driving more slowly. The claimant supported the judge's finding, arguing that there probably would not have been a collision.
  78. There was relatively little evidence on this aspect of the case, the majority of the evidence, both written and oral, being directed at the question of the speed of the car. As far as I can see, there was no evidence at all as to what the position would have been were the car travelling at 26/27 mph as the two speeds under active consideration were 45 mph and 30 mph.
  79. Based on a number of postulated facts set out in §12 of his report, Dr Searle calculated that the claimant would have been emerging into the carriageway for less than 1.5 seconds and perhaps well under a second (§12.5). The normal time required to react to an unexpected event would be some 1 or 1.5 seconds (§13.1). Dr Searle therefore concluded that the defendant had no time to react and that the accident was inevitable, whatever speed the defendant was travelling (§§13.2, 15.2 and 15.4). His final sentence in his report was to the effect that the accident would have happened "even had [the defendant's] speed been 5 mph".
  80. I was unable to find any cross-examination of Dr Searle on the question of causation.
  81. The judge nonetheless rejected his opinion at §123 of the judgment giving as his reason:
  82. "That predicates the scenario whereby the cyclist came out from the footpath having no awareness whatsoever of the oncoming vehicle with engine noise and displaying lights over a comparatively long period of time."
  83. It seems to me that this paragraph must be read in conjunction with the one that precedes it. Dr Searle's evidence on causation dealt with the situation from the moment that the claimant began his manoeuvre, moving from the pavement to the carriageway without making allowance for the car. In contrast, the judge's finding about the claimant in §122 went back beyond that point and opened up another scenario in which the claimant assessed the situation with regard to the car properly and did not come off the pavement at all or otherwise adjusted his behaviour. The judge does not therefore seem to be dismissing Dr Searle's calculations as wrong but considering a different situation from that which Dr Searle had addressed. I think this was a proper approach for him to take to Dr Searle's evidence.
  84. The defendant argued that Mr Sorton's evidence supported his contention that the accident would have happened anyway, even if the defendant had been driving at the speed at which the judge found he should have been travelling. In so saying, he relied particularly on some answers that Mr Sorton gave in cross-examination (transcript 2/105).
  85. Mr Sorton's opinion in his written report was that if the car had been driven at 30 mph, the accident would have been avoided because the defendant would have been able to match the speed of the bicycle and the change in the timing of the events would have meant that the bicycle would have travelled further along the road (trial bundle page 223). He also said (page 221) that:
  86. "101. In very simple terms, whilst [the defendant] would not necessarily have had sufficient distance in which to bring his vehicle to a halt from a speed of 30 miles an hour, the lower approach speed combined with the ability to reduce speed substantially would have changed the timing of events to the extent that the cycle would have continued to move forwards and clear the point of impact by the time the car reached that position.
    102. If it truly was the case that [the claimant] was actually attempting to cross the road when the accident occurred then it follows that any meaningful change in the timing of events with the car reaching the point of impact later, would have meant that the cyclist would have cleared the path of the vehicle."
  87. Cross-examination of Mr Sorton on causation proceeded by way of an examination of what would have happened had the car been travelling at 30 mph rather than 45 mph. The starting point was at the moment when the bicycle suddenly turned right, at which point the vehicles were 18 metres apart. Mr Sorton gave evidence about appropriate reaction times in the circumstances (see above at §39). A reaction time of one second was taken for the sake of illustration, but Mr Sorton's evidence was that if the defendant had taken his foot off the accelerator earlier, it would have been only half a second. In the passage of cross-examination upon which Mr Browne relied, Mr Sorton accepted that it would not be unreasonable for a driver proceeding at 30 mph to swerve just as the defendant did in fact do. The bicycle would meanwhile have moved towards the centre of the road and, assuming that both vehicles maintained a constant speed, they would have collided. In re-examination, however, Mr Sorton said that at 30 mph, the defendant would have had the opportunity for pre-impact braking which would have brought down the speed of the car whilst the bicycle was travelling further, thus lengthening the distance between them, and there would have come a time when the speeds of the two vehicles had equalised without them making contact. Furthermore, he pointed out that it was somewhat artificial to commence consideration of the issue with the vehicles only 18 metres apart because, had the defendant been travelling at 30 mph along the road from the junction where he had turned into Bamfield, the paths of the vehicles would not have coincided at all.
  88. It can be seen from this that Mr Sorton's acceptance that the collision would have occurred even at 30 mph if the defendant had swerved without braking was by no means the whole story. Although the judge's finding was that when travelling at 35 mph the defendant had not braked until after the impact, we can see from §122 that he went on to consider how the defendant's actions might have differed if he had been going more slowly. He was undoubtedly correct to say that the defendant would have had a longer time to react in the sense that if the claimant had hopped his bicycle down from the kerb at precisely the same chronological moment as he actually did, but the defendant had been proceeding along Bamfield more slowly, the defendant would have been further back from the claimant than 18 metres when the incident began. He would also have covered the distance between himself and the claimant more slowly, 27 mph equating to approximately 3.5 metres per second slower than 35 mph.
  89. The judge was also entitled, I think, to take into account that at a slower speed the defendant (who the experts agreed had not been slow to react) may have been able to brake thus improving matters further. Mr Sorton thought he would have had an opportunity for pre-impact braking at 30 mph and the position would have been at least as good at 27 mph.
  90. For these reasons, the judge was entitled to say that the defendant would have had more time to react and take evasive action avoiding the accident or lessening its severity.
  91. (c) Injuries would have been less severe

  92. The defendant argued that the judge had no basis upon which to say that the injuries might have been less severe had the defendant been going at 27 mph. Ms Rodway relied upon Mr Porter's evidence as establishing that as the speed at impact would have been significantly lower, so the claimant's injuries would have been less severe. The defendant submitted that his evidence did not support that conclusion.
  93. In his report of September 2008, Mr Porter reviewed several studies about speed and injury and said that there was strong evidence that the severity of injury is increased by increase in vehicle speed. He acknowledged that fatal and incapacitating injuries do occur in impacts at 30 mph but expressed the view (trial bundle page 279) that there was a strong body of evidence to suggest that in such impacts they were likely to do so less than 50% of the time. In his oral evidence, Mr Porter was clear that what mattered was the differential speed between the car and the cyclist at the point of impact (transcript 1/126 and 129). That would not, of course, have been 30 mph in the present case if the car had been travelling at 27 mph and the bicycle at 8 or 10 mph.
  94. Mr Browne submitted that the burden of proof was on the claimant to establish that on the balance of probabilities the injury here would have been less severe at a lower speed and that it had not been discharged. He argued that it was important that the studies on which Mr Porter relied were concerned with impacts between pedestrians and cars and there were no statistics available in relation to bicycles where, he argued, the outcome may well be different. He also pointed out that the evidence was that very severe injuries can occur at almost any speed (transcript 1/122). The judge reflected that evidence in his §93 where he says:
  95. "Mr Porter the Neurosurgeon accepted that it was possible to sustain very serious injury even at speeds that were very low. At 30 mph 40% of pedestrians would be likely to be killed and more than 10% would be seriously injured."
  96. Having considered all the material available, I have concluded that the judge was entitled to reach the conclusion that had the car been travelling at 27 mph, the injuries would on the balance of probabilities have been less severe.
  97. Granted Mr Porter did not deal with the chances of injury at the precise speeds that the judge found the vehicles to have been travelling, and he was not able to produce any studies concerned with bicycle accidents, but it does seem to me nevertheless that his evidence served as a foundation for the judge, doing his best with the material with which he was provided, to conclude that had the defendant been travelling more slowly, the injuries would have been less severe either purely because the differential speed between the vehicles would have been reduced or because of a combination of that and the greater chance for avoiding action, notably for the defendant to slow by braking even if he was not able to slow sufficiently to avoid a collision entirely.
  98. Conclusion on causation

  99. For all the various reasons I have set out, I would therefore uphold the judge's conclusion on causation.
  100. Contributory negligence

  101. The only respect in which the judge found the claimant to have contributed to the accident was by leaving the pavement in such a way that he was bound to come into the path of an oncoming vehicle driving in the centre of the carriageway. He did not find the absence of a rear light on the bicycle and the claimant's failure to wear a cycle helmet had contributed to the situation.
  102. The central finding in relation to the claimant's negligence is at §130 to which I have already referred but which I will now reproduce in full:
  103. "The likelihood is that this careful cyclist went into the road way in all probability having seen and heard the oncoming car. It is likely that in the artificial light he misjudged the speed of the oncoming vehicle when he commenced his manoeuvre of 'bunny hopping' the trail bicycle from the pavement into the road. There was no cycle path along Bamfield. Strictly he should not have been cycling the pavement."
  104. The judge found the degree of contribution to the collision in fact made by the claimant to be 50%. However, section 1(1) Law Reform (Contributory Negligence) Act 1945 provides that the damage recoverable shall be reduced "to such an extent as the court thinks just and equitable, having regard to the Claimant's share in the responsibility for the damage". The judge considered that at 16 years of age, the claimant did not have the maturity and judgment of an adult, even though he was normally a prudent careful cyclist (§142). He therefore considered it just and equitable to reduce the claimant's damages only by one third.
  105. The defendant contended that contributory negligence should have been assessed at about 75%. He argued that the judge was wrong to conclude that the claimant's contribution to the cause of the accident was only 50% as the judge found that the claimant had created an emergency situation (§132) and that he was bound to come into the path of an oncoming vehicle (§131). Particular reliance was placed on what Hale LJ (as she then was) said in Eagle v Chambers [2003] EWCA Civ 1107 at paragraph 16 and on the decision in this court in Lamoon v Fry [2004] EWCA Civ 591.
  106. We were reminded that the defendant had kept a proper lookout and reacted properly to the emergency and was only at fault with regard to his speed which was, as Mr Browne put it, "a little over the speed limit" when it should have been "a little under it". Compared with that, the major fault was the claimant's for riding into the road.
  107. The defendant also argued that the claimant's age should not have mitigated the reduction for contributory negligence. It would only have been relevant, it was submitted, if the degree of care to be expected of the claimant was reduced as a result of his age. There was no evidence that that was so, it was said, and there was in fact a substantial body of evidence which established that the claimant was a mature, sensible and experienced cyclist.
  108. The claimant argued that the judge was entitled to reach the conclusion that he did, having correctly directed himself as to causative effect and relative blameworthiness; if anything, the apportionment was over-generous to the defendant. On the judge's findings, it was submitted, the defendant saw the claimant and should have anticipated a move by him into the road and he had "ample time" to moderate his speed and avoid a collision or serious injury to the claimant and the claimant made a misjudgement as to the speed of the car rather than taking a deliberate risk. Certainly, it was argued, this court should not interfere with the judge's assessment as it was not plainly wrong to have found the parties equally responsible.
  109. A considerable number of the authorities that are relevant to this issue of contributory negligence can be found collected helpfully together in Toropdar v D [2009] EWHC 2997. In considering authorities in this context, however, it is important to remember that every case depends upon its own facts and their usefulness is accordingly limited, although they can be a helpful guide in certain respects.
  110. Eagle v Chambers concerned a collision between a pedestrian aged 17 and a car. I do not need to set out the facts. Mr Browne invited our attention particularly to paragraph 16 of the decision. There Hale LJ acknowledged that the Court of Appeal was always reluctant to interfere with a trial judge's judgment of what apportionment between the parties is just and equitable but said that a finding as to which of the parties is the more responsible for the damage is different from a finding as to the precise extent of a contribution. There is, she said, a qualitative difference between a finding of 60% contribution and a finding of 40% contribution which is not so apparent between 40% and 20%. She then said:
  111. "It is rare indeed for a pedestrian to be found more responsible than a driver unless the pedestrian has moved into the path of an oncoming vehicle."
  112. Mr Browne relied upon this passage as offering support for a finding of more than 50% responsibility in our case because the claimant had moved into the path of the defendant.
  113. Lamoon v Fry involved a collision between a car and an 18 year old cyclist. The cyclist was on the wrong side of the road cutting the corner and the car driver was driving at about 40 mph which the judge found was too fast. The cyclist was found to be 60% to blame for the accident. The Court of Appeal declined to interfere with that although agreeing with a concession made by counsel for the cyclist that it appeared to have been generous so far as the cyclist was concerned. Mr Browne relied upon that as support for the 75% for which he contended here.
  114. Neither of these two cases especially assisted, in my view. I cannot read what Hale LJ said in Eagle v Chambers as establishing a principle which in any way overrides the normal approach of evaluating the facts of the individual case. Lamoon v Fry is little more than an example of how the issue of contributory negligence was decided on a particular set of facts.
  115. Neither side took us to any authorities in which there was any examination of how, in principle, one should approach a young adult of 16 such as the claimant when it comes to contributory negligence although a number of the authorities in the bundle did concern teenagers.
  116. The authorities are clear that we should not interfere with the judge's assessment of contributory negligence unless his conclusion is plainly wrong (see, for example, Lunt v Khelifa [2002] EWCA Civ 80; Eagle v Chambers (supra); Lamoon v Fry (supra)). Reminding myself that I am not making the decision from scratch but reviewing the judge's decision, I conclude that his starting finding of 50% was one which was open to him on the facts of the case. I cannot, however, sustain his conclusion that it would be just and equitable for the reduction in damages only to be by one third. I am persuaded by the defendant's submissions that there was no reason to treat the claimant as if he were anything other than an adult in this respect and that the judge erred in his approach to this. It follows that for the judge's one third reduction in damages, there should be substituted a 50% reduction.
  117. Overall conclusions

  118. Save for that adjustment in relation to contributory negligence, I would therefore dismiss the appeal.
  119. Lord Justice Tomlinson :

  120. I agree with both judgments.
  121. My Lady records at paragraph 46 of her judgment the anxiety to which the judge's finding that an appropriate speed would have been 26/27 mph has given rise. I share that anxiety. I cannot readily understand on what principled basis the judge reached this conclusion. I do not understand how he was able to draw a distinction for these purposes between 30 mph and 26/27 mph. The judge's conclusion in this regard has also I think contributed to the difficulty in understanding his process of reasoning on causation. However, the fact remains that the judge has made an unassailable finding that the Defendant was travelling at an unsafe speed. The judge was entitled to conclude and did conclude that at that speed a collision was inevitable. The material before the judge did not persuade him, the burden being on the Defendant, that the Claimant's conduct was such that he would have sustained injuries of similar severity even had the Defendant been driving at a safe speed.
  122. Lord Justice Longmore:

  123. Like my Lady, I have not found the causation question easy. But it seems to me that it was open to the judge to find that causation had been proved. The critical facts were (1) that the defendant was travelling at 35 mph, a speed which was not just in excess of the speed limit but also in excess of what has been held to be the safe speed in the circumstances of 26/27 mph and (2) that the accident occurred while the defendant was travelling at that excessive speed. The injury which occurred was injury of a kind likely to have been caused by that breach see Clerk & Lindsell, Torts 20th ed. Para 2-07. In these circumstances I do not consider that it is necessary for the claimant to prove positively the negative proposition that the accident would not have occurred if the defendant had been going at a safe speed; realistically it should be for the defendant (who has already been found to be in breach of duty) to show that even if he had been driving at a non-negligent speed, the accident would still have occurred. The judge was not satisfied that that was the position and neither am I. The claimant should succeed.
  124. On all other matters I have nothing to add to what my Lady has said, so the appeal will be dismissed subject to the contributory negligence adjustment.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/349.html