Phethean- Hubble v Coles

In a road traffic claim, a driver who exceeds a residential speed limit may bear primary liability where a reasonably prudent driver should anticipate that a cyclist using a footpath may enter the carriageway. The court must assess the whole evidential picture when reconstructing speed; a formula based on throw distance is inappropriate where the cyclist may have been carried by the vehicle after impact. Contributory negligence requires proof that the claimant was at fault, that the fault caused the injury, and that a reduction is just and equitable under the Law Reform (Contributory Negligence) Act 1945. A failure to wear a cycle helmet does not justify a reduction without evidence that helmet use would probably have prevented a significant part of the injury. The claimant’s damages were reduced by one third for entering the road, leaving the defendant with two thirds liability.

The claimant, aged 16, suffered catastrophic head injuries when he rode a bicycle from a footpath into the path of the defendant’s car. The defendant was travelling on a well-lit residential road subject to a 30 mph limit. The principal issues were the defendant’s speed, whether the claimant’s entry into the road constituted contributory negligence, and whether failure to wear a cycle helmet contributed causatively to his injuries.

The court considered competing accident-reconstruction evidence, including the use of the Searle formula and evidence concerning post-impact carrying. It also considered the legal and evidential requirements for reducing damages for contributory negligence.

1. Liability and speed. The Searle formula was unsuitable where there may have been carrying of the cyclist by the vehicle after impact. Carrying was distinct from mere contact and could occur even where braking was applied. The court therefore assessed the total evidential picture rather than treating any single strand of evidence as determinative ([67]-[83]).
2. The defendant was travelling at about 35 mph on a residential road with a 30 mph limit. A prudent motorist should have anticipated that a cyclist using the footpath might enter the carriageway. The defendant’s speed was excessive and materially reduced the margin of safety and available reaction time. Primary liability rested with the defendant ([112]-[124]).
3. Contributory negligence. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the defendant had to prove, on the balance of probabilities, that the claimant was at fault, that the fault was causative of the injury, and that a reduction would be just and equitable having regard to the parties’ respective responsibility ([125]-[126]).
4. The claimant created an emergency by riding from the pavement into the road at an angle. His contribution to the collision was assessed at 50%, but his age and limited maturity were relevant to the just and equitable assessment ([127]-[132], [141]-[143]).
5. The court accepted the approach in Smith v Finch as the appropriate starting point for helmet cases. However, the evidence did not establish that wearing a helmet would probably have prevented a significant part of the claimant’s complex injuries. No further reduction was made on that ground ([133]-[140]).
6. The damages recoverable were reduced by one third. The defendant was liable for two thirds of the claimant’s damages ([141]-[143]).