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Damages set after Court of Appeal found cyclist and motorist equally at fault for November 2005 incident

A Bristol cyclist left with life-changing injuries in 2005, when he was aged 16, after he was involved in a collision with a car driven by a fellow teenager has been awarded £5.3 million in compensation by the High Court in London. The award, which follows several years of legal wrangling, is based on a 50:50 apportionment of responsibility for the incident between the parties involved.

Toby Phethean-Hubble, now aged 24, sustained severe brain injuries that left him unable to move following the incident near Whitchurch in November 2005, when he was riding home and moved off the footway into the path of a car driven by Sam Coles, then aged 17, and who had recently passed his driving test.

Toby was not wearing a helmet and his bike was not displaying lights, and at the original trial, the judge found him one-third liable for his injuries. The motorist took the case to the Court of Appeal, which last year ruled that each party shared equal responsibility.

An analysis of that decision and the one in the original case last year by Martin Porter QC, who blogs as The Cycling Silk, highlights that Coles had been driving at 35mph in a 30mph area, and that the original trial judge had agreed that he should have anticipated the cyclist moving into his path and cut his speed accordingly to 26 or 27mph.

http://thecyclingsilk.blogspot.co.uk/2012/03/year-ago-i-commented-upon-d...

The Court of Appeal agreed with the original judgment on that point, albeit with “'considerable anxiety,” according to Porter.

However, it also held that despite Toby’s age at the time of the incident, the original trial judge was wrong to decrease the contributory negligence aspect to one third, saying instead that he should be treated as though he were an adult.

Porter also highlighted one aspect of the Court of Appeal’s ruling that he said was
“potentially a significant development of the law which may be of real assistance to cyclists (and other injured Claimants),” writing:

Perhaps the most important observation to be derived from this case is that the burden of proving that Tobias's injuries would have been of similar severity even had Sam been travelling at a safe speed rested on the Defendant. 

Once the Claimant had established that the Defendant was in breach of his duty of care and that the Claimant had sustained an injury of the kind likely to be caused by that breach then it is incumbent upon the Defendant to disprove causation.

In the years since suffering those life-changing injuries, Toby has staged what his father Bruce Phethean-Hubble described yesterday as a “truly remarkable" recovery which he attributed to Toby’s “amazing drive,” reports The Bristol Post.

He can now walk with the help of frame, and is also participating in shooting and plans to take up archery.

His mother, Shani Phethean-Hubble, said that the compensation would mean he could begin to lead an independent life, helping pay for his care as well as accommodation.

"I'm just glad it's all over. I hope now he can just get on with his life," she commented.

Lawyers on both sides of the case paid tribute to the youngster’s family in helping him overcome his injuries.

His own lawyer, Susan Rodway QC, said: "It is a testament to the rehabilitation he has had from the NHS, and the considerable support of his family, in very straitened circumstances, that Tobias is now able to walk and move around – although with help."

Defence lawyer Ben Browne QC added: "It is right to acknowledge that he has received ceaseless and devoted care from his family – particularly his mother and father, and in very difficult circumstances."

Born in Scotland, Simon moved to London aged seven and now lives in the Oxfordshire Cotswolds with his miniature schnauzer, Elodie. He fell in love with cycling one Saturday morning in 1994 while living in Italy when Milan-San Remo went past his front door. A daily cycle commuter in London back before riding to work started to boom, he's been news editor at road.cc since 2009. Handily for work, he speaks French and Italian. He doesn't get to ride his Colnago as often as he'd like, and freely admits he's much more adept at cooking than fettling with bikes.

13 comments

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Ush [584 posts] 2 years ago
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Toby was not wearing a helmet and his bike was not displaying lights, and at the original trial, the judge found him one-third liable for his injuries. The motorist took the case to the Court of Appeal, which last year ruled that each party shared equal responsibility.

Were either of those factors: 1) lack of helmet; 2) lack of lights cited in by the judge as contributory factors? The way this is written suggests that they may be, but does not state it clearly.

Also, what's a "footway"? I mean I can guess, but it's the first time I've heard this term.

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qwerky [184 posts] 2 years ago
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'footway' is the legal term for what most people know as the pavement. Remember reading a good blog post about how archaic the law is in this area. Will try and find it again to link it.

Edit: Here is the link http://ukcyclerules.com/2010/11/23/riding-on-footpaths-the-basics/

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fatbeggaronabike [754 posts] 2 years ago
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Toby was not wearing a helmet and his bike was not displaying lights, and at the original trial, the judge found him one-third liable for his injuries. The motorist took the case to the Court of Appeal, which last year ruled that each party shared equal responsibility.

This begs the question when did the incident happen was it after "lighting up" time?...unfortunately I could not find the original report.

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pmanc [194 posts] 2 years ago
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According to the cycling silk's linked blog post "Tobias (age 16) had been riding his bicycle at night without lights...".

But I think the point is that the driver was well aware of the cyclist's presence.

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eurotrash [88 posts] 2 years ago
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So did he just randomly drive off the pavement and into the path of the car or was it some sort of place where it would have naturally followed that he'd be riding off the pavement and onto the road? Either way this is yet again an incident caused by lack of shoulder check.

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Flippa [37 posts] 2 years ago
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I see this happen a lot in Luton. People riding bikes on the footpath just drop off the kerb and onto the road, sometimes into the bike lane without looking (I've had to stop or swerve several times) and sometimes in front of an unsuspecting driver.
When it's by the cycle lane I almost expect it now, but as a driver if I saw a pedestrian walking or someone cycling on the footpath I wouldn't expect them to just move into the road in front of me.
I guess what that teaches is be ready for the unexpected.

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Ush [584 posts] 2 years ago
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FATBEGGARONABIKE wrote:

Toby was not wearing a helmet and his bike was not displaying lights,

Right.

FATBEGGARONABIKE wrote:

and at the original trial, the judge found him one-third liable for his injuries.

What I'm looking for is a source which links the above two statements explicitly. Neither the road.cc, nor the cyclingsilk blog appear to do so. It's suggested but not stated.

I'm specifically interested in whether the ruling on the case provides precedent that not wearing a helmet diminishes liability of the other party.

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HKCambridge [215 posts] 2 years ago
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Flippa wrote:

I see this happen a lot in Luton. People riding bikes on the footpath just drop off the kerb and onto the road, sometimes into the bike lane without looking (I've had to stop or swerve several times) and sometimes in front of an unsuspecting driver.
When it's by the cycle lane I almost expect it now, but as a driver if I saw a pedestrian walking or someone cycling on the footpath I wouldn't expect them to just move into the road in front of me.
I guess what that teaches is be ready for the unexpected.

Well, being ready for the unexpected is exactly what good driving / cycling is about. There are some things which are completely unpredictable, but a pedestrian or cyclist doing something you don't want them to do isn't one of them.

It's one of the reasons cyclists shouldn't cycle in the gutter: I'm well aware the pedestrians jump off pavements without looking.

But I suppose the really significant point here is that while the cyclist certainly seems to have done something wrong, the injuries would not necessarily have been so life-changing if the driver had been keeping to the speed limit. I suppose the sad thing about this is that had the cyclist died there would be no civil case to bring for the loss of a life.

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Shani Phethean-... [5 posts] 2 years ago
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No they were not a factor in the judgement.

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Shani Phethean-... [5 posts] 2 years ago
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Toby did have lights on his bike. They were not to be found after the accident, along with quite a bit if the wreckage and personal items, some returned to us afterwards by members of the public.

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Shani Phethean-... [5 posts] 2 years ago
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It was the most logical place to leave the pavement. There was no cycle path and unfortunately a shoulder check may not have been able to judge the speed of the oncoming car, which expert reconstruction was considered to be travelling a lot faster than eventually conceded by the driver.

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Shani Phethean-... [5 posts] 2 years ago
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No it does not.

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Shani Phethean-... [5 posts] 2 years ago
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It was not clear the exact time due to conflicting statements of the driver and the 999 calls.