Monday, 26 March 2012

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.


  1. Really Good Post!!

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  2. Would you say this reversal of the burden of responsibility (ie, where in breach of a duty of care the D must prove the Claimant to be negligent) moves us closer to the 'stricter liability' system that campaigners often claim will make a huge difference to driver behaviour?

    Personally I'm not convinced it will make a difference, but obviously it is of value from an equity point of view.

    I've imagined that a degree of 'stricter liability' can be achieved through case law alone and there is no need for primary legislation - would you say that is the case?

  3. I am happy to accept that the driver was speeding, and therefore has some contribution to the accident of someone improvidently leaving the footway. What I find hard to accept is that a driver must anticipate the possibility of people improvidently leaving the footway, and thus lower their speed still further, and that moreover that will reduce the likelihood of collision. How am I to proceed along any street with an occupied footway at a normal speed in that case, as the possibility of improvident people leaving the footway is always present? It seems to me that the improvident must take their own chances given the expected speed of the traffic. As it happens, as a cyclist regularly using the streets of London, I tend to have frequent encounters with improvident pedestrians, including about 3 actual collisions only recently. In each case I was proceding well below my typical speed, and had further given audible warning once the improvidence became evident. Low speed and audible presence do not seem to be sufficient to avoid collisions with the improvident.

    The fact of a street being well-lit does not seem, on its own, to make it likely that a cyclist is visible. I traverse the well-lit streets of London at night frequently, and unlit cyclists and pedestrians are often not visible, especially when wearing "camouflage", ie black or grey coats.

  4. Three collisions? I suspect you need to slow down or otherwise alter your riding style. If you had time to give warning you should have been braking hard.

    "How am I to proceed along any street with an occupied footway at a normal speed"

    Slow down and ride further away from the kerb.

  5. On strict (civi) liability, why not simply impose it in all cases where a motor vehicle hits a cyclist or pedestrian? Not as a rebuttable presumption, but in all cases. And I mean every case. And no reductions for contributory negligence, however daft or drunk the victim. None. Ever.

    Why? Not really to change driver behaviour (I doubt it would). Not to make vulnerable victims feel safer (II'd rather not be hit). Partly because of ''fairness" (though we can disagree over what is "fair"). Largely to save motorists money.

    First, if someone is injured (particularly if badly injured) do we really want to worry about whose fault it was, rather than seeing them compensated? It's likely (particularly for serious injuries) that society will pick up the tab anyway, so that might as well be through motor insurance premiums as through taxes. That's what put the risk on the roads (see Atiyah - it's not an original argument of mine).

    Second, does the current system really save motorists/insurers any money? As this case shows, the driver of a motorist who hits a vulnerable victim will nearly always have to pay something in damages. But currently there is a vast outlay in legal fees, adjusters' fees, crash reconstruction experts' fees, fees for experts on the benefit (if any) of cycle helmets etc. And we haven't started on insurers' own admin internal fees.

    Under my system, the insurer has to: 1. Get out Kemp& Kemp [standard text on compensation]; 2. Pay. Job done. Victim compensated. Minimal costs involved. Insurer saves money (over a book of business, if not a particular claim, though it might have saved money in this case). Less overall claims costs = lower premiums. Everyone's a winner.

    OK I don't have hard (or any) figures to back this up, but can anyone prove I'm wrong?

    Possible downsides? Fraud I think is a pretty minimal risk. Are people really going to throw themselves under cars for the compo? I am guessing (though don't know) that it's difficult to fake being hit by a car. Possibly if the level of damages is the only thing to argue about, both sides will just spend more time and money arguing about that. Any New Zealanders reading might help.

    PS I have left out car passenger/drivers for now because there is a risk of dodgy whiplash claims. And this is for civil liability only - we still have to prove guilt before locking people up or taking their licences away.

  6. Sorry, typo in the above. 4th paragraph, 2nd line should read "the insurer of a motorist",not " the driver of a motorist"

  7. Luke: Possible downsides?
    Are you really asking a lawyer the downside of cutting out legal expenses ?

  8. "Slow down and ride further away from the kerb."
    My observations were intended to apply to all vehicle drivers alike, and it is not practical for car drivers to drive further from the kerb in many cases. Car drivers typically proceed at 30mph in 30mph areas, 50mph in 50mph areas, regardless of the occupation of the footway. This ruling seems to suggest that is negligent. I was suggesting that is somewhat ridiculous. Pedestrians in the presence of motor traffic routinely proceeding at a gievn speed should take care to keep to the footway unless they have checked it is safe to leave it.

    My recent collisions with pedestrians:
    (1) In the centre of the carriageway of a 1-way street, proceeding at about 2mph, not braking, as any slower I'd fall off, proceeding very slowly/carefully as a result of multiple pedestrians being in the carriageway, yet said pedestrian walked straight into me completely disregarding my presence, with a determination that I could not avoid it.
    (2) In the centre of the carriageway of a 2-way street, at about 7mph, pedestrian determinedly walked out without checking for on-coming traffic, rather concentrating on not dropping her cup of tea. I was turning right at the time and could not brake as to do so would expose me to collision with on-coming traffic. Sufficiently in her dreams, she walked into the rear end of my bicycle despite my bright orange-clad body moving right across her field of vision the preceding instant.
    (3) At about 8mph, braking on observing pedestrian running off the footway into the street, at a crossing when I had a green light albeit that the motorised traffic was not moving owing to a queue. That pedestrian apologised profusely to me, even though I landed on top of her.

  9. Ivan, I'm curious as to how you know all these "invisible" cyclists and pedestrians are there. Is your bike equipped with radar? Do you wear infra-red nightsights? Or are you endowed with the hearing of a bat, able to isolate from the clamour of the City, the squeaking of their chains and clicking of their shoes?