A 16-year-old cyclist was riding along the pavement came into the road and was hit by a car travelling in the same direction.
The accident occurred at about 8 p.m. The claimant had been to fetch his bicycle from a friend’s house. The road was a long straight road with one carriageway in each direction and with a speed limit of 30 mph. For some of the way a footpath runs beside the road and the claimant was riding along that footpath.
It was dark, but there was street lighting, so the lack of lights on the bicycle was not a factor.
The 17-year-old Defendant was driving a car along the road next to the footpath, and in the same direction as the bicycle.
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 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 seriously injured.
The case was decided by a Judge in the Claimant’s favour, subject to a finding of 50 per cent contributory negligence, which was reduced to one third to take account of the cyclist being 16 years of age. The decision was appealed by the driver’s insurance company. They thought the cyclist was wholly to blame, and if not then the cyclist’s contributory negligence should have been higher.
The issue for the Judge was the speed of the car. The appropriate speed is not the speed limit, which was 30 mph on this road, it is a speed which allows you to safely react to the hazards which are likely.
The Judge decided the cyclist was riding on the path as he had no lights. As the path did not run on much further the cyclist must have decided to switch pavements, and rode across the road at an angle. He must have seen and heard the car, but misjudged its speed. So the cyclist made a mistake by coming off the kerb in front of a car.
The driver was thought to be above the speed limit, and his own statement put him at 35 mph. Accident reconstruction experts are used in cases like this, particularly where a cyclist suffers a serious head injury and has no memory of the incident. One expert put the speed at 45mph, but the Judge concluded 35 mph was about right.
Next the Judge found that even travelling at the speed limit would have been too fast in the circumstances. The driver, who was local, should have been aware the path was coming to an end, so should have anticipated the cyclist coming into the road. Had he been travelling more slowly he could have stopped in time, or avoided the collision.
The cyclist was found to be partially to blame to the tune of 50 per cent, which was reduced to one third to take account of his youth, 16 years of age at the time of the accident. The appeal court thought a 16-year-old ought to be treated as an adult so adjusted the figure for contributory negligence back to 50 per cent.
What must always be remembered in any appeal case is that an appeal is not a rehearing. The Judge has to be wrong in law or fact for the decision to be changed. The appeal court changed the contributory negligence figure as the Judge was wrong in law to make a reduction on grounds of youth for a 16-year-old.
The case is called Phethean-Hubble v Coles and can be read in full by clicking here.
For more information about contributory negligence please click here.