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Phethean-Hubble v Coles, Court of Appeal, 21 March 2012

5 April 2012
The issues

Contributory negligence – causation – road traffic – cyclist – child

The facts

On the 28 November 2005 Tobias Phethean-Hubble, aged 16 was riding his bicycle near the Whitchurch Leisure Centre in Bristol when he collided with a car driven by the Defendant. Tobias suffered serious head injuries with consequential life long disabilities. He brought a claim for personal injuries. At trial he succeeded on liability subject to a reduction of one third for contributory negligence. The judge found Tobias causatively responsible to the extent that 50% would be substituted for one third.

The decision

Despite the short comings in terms of the judge’s reliance on the distance of travel, the point of impact as an indicator as to speed, the fact that he had not set out how he had done his calculation or sufficiently identified the assumptions on which he proceeded and the awkwardness of his formulation as to the test of causation, the judgment as to liability was upheld. As to contributory negligence, the authorities were clear that an appeal court should not interfere with the judge’s assessment of contributory negligence unless the conclusion was plainly wrong. In this case the starting point of 50% was one which was open to the judge on the facts of the case but the court would not uphold the judge’s conclusion that it would be just and equitable for the reduction in damages only to be by one third. There was no reason to treat the claimant as if he was anything other than adult in this respect and the judge had erred in his response.

Appeal to liability dismissed. Appeal allowed as to contributory negligence to the extent one third reduction would be substituted for 50%.

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