Phethean-Hubble v Coles

Compliance with a speed limit does not necessarily discharge the duty of care. Circumstances may require a driver to travel below the maximum permitted speed. Causation is assessed on the balance of probabilities by comparing actual events with the likely consequences of driving at a safe speed. That comparison may include altered conduct, a longer opportunity to react or brake, and less severe injury. Appellate courts should not substitute their own view of fact-sensitive speed findings or contributory-negligence apportionment unless the decision lacks foundation or is plainly wrong. Under the Law Reform (Contributory Negligence) Act 1945, the reduction must be just and equitable.

A 16-year-old cyclist suffered very serious head injuries and lifelong disabilities when he rode from a pavement into the path of a car driven by a 17-year-old. On 24 February 2011, HHJ Wilcox, sitting as a High Court judge, found the driver primarily liable, assessing his speed at 35 mph although the appropriate speed was 26/27 mph, and reduced damages by one third for contributory negligence. The driver appealed liability, causation and apportionment. The claimant filed a respondent’s notice and cross-appeal. The central issues were whether the findings on speed and causation were sustainable and whether the reduction was just and equitable.

Disposition. The appeal was dismissed as to primary liability and causation. The order was varied so that damages were reduced by 50%, rather than one third, for contributory negligence. The claimant’s respondent’s notice and cross-appeal did not justify a different result.

1. Speed and breach. Lady Justice Black upheld the finding that the defendant’s actual speed was 35 mph. Although his estimates varied, the trial judge was entitled, having seen him give evidence, to treat his first estimate as candid and reliable. The stopping-distance cross-check was treated cautiously because the judgment did not identify when braking began or its assumptions about reaction time. Nevertheless, the finding had an evidential foundation. The trial judge was also entitled to find that the safe speed was 26/27 mph. The cyclist’s presence on a footpath, absence of lights and the absence of a cycle path created a foreseeable risk requiring a speed below the 30 mph limit.
2. Causation. The finding that the collision could not have been avoided at 35 mph did not itself resolve causation. The proper question remained whether, on the balance of probabilities, excessive speed caused the accident or made the damage worse. The trial judge’s imperfect wording nevertheless showed a traditional counterfactual inquiry. A slower car would have given the claimant more time to assess its progress and might have changed his manoeuvre. It would also have given the defendant more time to react or brake. Expert evidence entitled the judge to find that the injuries would probably have been less severe at the lower differential speed. Dr Searle’s inevitability analysis addressed the claimant’s actual manoeuvre and did not exclude a different counterfactual in which his conduct changed.
3. Contributory negligence. The absence of a rear light and a helmet was not found causative. The claimant’s departure from the pavement contributed 50% to the collision. Eagle v Chambers [2003] EWCA Civ 1107, Lamoon v Fry [2004] EWCA Civ 591, Toropdar v D [2009] EWHC 2997 and Lunt v Khelifa [2002] EWCA Civ 80 supplied guidance but no fixed apportionment. Under section 1(1) of the Law Reform (Contributory Negligence) Act 1945, the reduction had to be just and equitable having regard to the claimant’s share of responsibility. The finding of 50% responsibility was open to the judge, but the claimant’s age supplied no sufficient basis for reducing the award to one third. Lord Justice Longmore additionally considered that the claimant need not positively prove that the accident would have been avoided at a safe speed; realistically, the defendant should show that it would have occurred anyway. Lord Justice Tomlinson agreed with both judgments.

• Court of Appeal (Civil Division) — On 21 March 2012, the court dismissed the appeal on liability and causation but varied the contributory-negligence reduction from one third to 50%: [2012] EWCA Civ 349.
• High Court (Queen’s Bench Division) — 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 one-third reduction for contributory negligence.