Phethean-Hubble v Coles
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Tomlinson,Lord Justice Longmore,and |
| Judgment Date | 21 March 2012 |
| Neutral Citation | [2012] EWCA Civ 349 |
| Docket Number | Case No: B3/2011/0647 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 2012 |
[2012] EWCA Civ 349
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
Lord Justice Longmore
Lady Justice Black
and
Lord Justice Tomlinson
Case No: B3/2011/0647
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
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.
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.
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.
The witnesses at trial
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.
The basic facts
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.
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.
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.
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.
The central issues for the judge
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):
"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
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).
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).
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).
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).
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).
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):
"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
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...
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