England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/02/2011

HHJ WILCOX:

1. This is a claim for damages for personal injuries and other losses arising out of a road traffic accident which occurred on 28 November 2005 when the 16 year old Claimant was riding his bicycle on Bamfield near the Whitchurch Leisure Centre in Bristol and collided with a Rover motorcar driven by the Defendant.
2. The Claimant had been visiting a friend of his in the house on Bamfield next to the vehicular entrance to the leisure centre, to recover his bicycle left there on the previous day. It was a Carrera Banshee trail bike and was maintained in excellent mechanical order by its conscientious rider.
3. The evidence of his parents and Mr Sully of Halfords who helped to maintain the bicycle presents a picture of a young cyclist who was normally a careful and responsible cyclist.
4. He was a young person who had part time work in a solicitor's office and his pursuits included cycling, sport and marshalling at vintage car rallies.
5. At about 20.00 hours on 28 November 2005 he was cycling along the footpath, 2.5 metres wide alongside the rear of the Whitchurch Leisure Centre on Bamfield. Some distance beyond the leisure centre the footpath ends where it meets with the junction formed by the entrance to a car park. It goes on beyond that junction.
6. The road way beside the footpath was a long straight road 7.3 metres wide comprising a single carriageway in each direction.
7. It was dark at 20.00 hours, but the footpath and roadway were illuminated by street lights.
8. The street lights gave reasonably good visibility to both the cyclist and the car driver.
9. Although the Claimant possessed LED lighting, purchased from Halfords, that could be fixed to the cycle or on the clothing I am satisfied that he was not using it that night. None was seen by the motorists and nothing was found following the exemplary examination of the scene after the accident.
10. The Defendant was driving his mother's Rover motor car north along the road. He had emerged on to Bamfield, making a left turn. He had not needed to stop before emerging from the junction. There were no physical obstructions to the Claimant's visibility. Had he looked for traffic before riding on to the roadway he would have been able to see that the Defendant's vehicle. There was no impediment to the Defendant's view ahead of both pavements and roadway.
11. The Claimant rode his bicycle off the nearside pavement into the road at an angle into the path of the Defendant's oncoming car.
12. The experts agree that he was struck on his rear offside by the nearside front corner of the car and from there passed over the bonnet and struck the nearside part of the windscreen, and his head struck the top of the windscreen and leading edge of the roof.
13. PC Paine of the Collision Investigation Unit attended the accident location later that evening and prepared a report and a plan and took photographs of the accident location.
14. The accident occurred 125 metres from the junction from which the Defendant emerged to the north of Paddock Gardens.
15. The car was fitted with ABS braking, in consequence in the event of severe braking the wheels would not have locked and thereby caused skid marking on the road surface. The evidence as to braking primarily comes from the Defendant.
16. There is evidence that the car swerved, it came to rest in the offside carriageway at Bamfield facing the direction of travel with its offside 1.4 metres from the kerb and parallel to the kerb.
17. Both the accident reconstruction experts agree that the bicycle was struck approximately 1.5 metres from the nearside kerb on its rear wheel near to the crank and that the bicycle was at an angle to the kerb when struck.
18. The impact between the offside of the bicycle and the front nearside of the car was in all probability at the point in the nearside carriageway 1.5 metres from the kerb where there was observed to be a scratch mark in a crescent shape in the road consistent with damage marks to the bicycle handle bars.
19. There were glass fragments mainly in the nearside carriageway which I am satisfied came from the shattering of the sun roof when the Claimant's head hit the top of the windscreen and the leading edge of the roof very close to the glass sun roof. It is more likely than not to be from the sun roof because of the type of glass used in the sun roof which readily fragments and disperses, rather than the laminated windscreen glass which does not. I accept the evidence of Dr Searle as to the probable origin of the bulk of the scattered glass on the carriageway.
20. The conjunction of the start of the fallen glass, the mark on the road and the final position of the car enables the inference to be drawn with reasonable certainty that the car travelled slightly more than 34 metres following the impact before coming to rest.
21. The Claimant finally came to rest in the gutter on the offside of the road face down with his head facing south and his legs in the direction north alongside the stationary car, 2.5 metres behind its front.
22. He suffered very severe head injuries and it is clear that had there not been what is described as aggressive medical and surgical management and superlative degrees of skill in his treatment that this strong young man would not have survived. He was and is unable to give any account of the accident.
23. He attended court in his wheelchair for part of the hearing and I observed him to be sitting upright and having warm communication with his father who was attending him.
24. Mr Porter a Consultant Neurosurgeon from the Frenchay Hospital in Bristol described his injuries in two medical reports. They are relevant both as to the probable mechanism and order whereby he sustained his injuries and secondly as to the allegation of contributory negligence arising out of his neglect to wear the crash helmet that he owned.
25. He was recorded as being Glasgow Coma Score 3 at the scene of the accident, and within 40 minutes after admission to the Frenchay Hospital was only Glasgow Score 6. These measures, of course connote very severe head injury.
26. Mr Porter said that there was very complex injury and that there was evidence of an impact to the left frontal region noted by the surgical team as having glass imbedded in it. I accept his evidence that the high probability is that this was not caused by falling on to glass already on the ground following the collision, but that it was caused when his head hit the leading edge of the roof, and the top of the windscreen which shattered at the same time as the sunroof. There is no evidence as to the type of glass that was imbedded in the wound observed by the surgical team.
27. There was at least one other severe impact to the head and there may have been more causing multiple contusions around the brain … "in typical position lateral temporal and they come on both sides of the brain", together with oedema and diffuse axonal injury.
28. The medical evidence is consistent with the first impact to the head having been on the left side and more likely than not in the light of the experts agreement causing the deformation of the leading edge of the roof where hair was found to be imbedded.

The Claimant's case

29. The Claimant contends that the Defendant is wholly to blame for the accident with no deduction for contributory negligence.
30. The Defendant at the time of the accident was 17 years of age and had passed his test a matter of days before the accident on his second attempt.
31. The day of the accident was the first day that he had driven his mother's automatic car.
32. He familiarised himself with the car and automatic gear box that morning by going out supervised by his grandfather around Bristol for several hours. He did not come immediately from a manual car to an unfamiliar automatic car. There was some sensible transition doubtless at the insistence of his mother and grandfather. He gave an account to the police at the scene when he was asked to explain in his own words how the collision occurred:-

I was coming down Bamfield Road travelling at about 35mph. I was coming down, as I was coming down a bloke on a push bike was riding on the pavement to my left travelling in the same direction as me. When I got closer to him, he wheelied his bike off the kerb into the road. He did it diagonally across the road without looking at all. I immediately slammed on my brakes as soon as I saw what he was doing, but I could not avoid colliding with him. He hit my windscreen and ended up in the road on the right hand side of the car. I got out of the car and immediately phoned for an ambulance and the police. I don't think he had any lights on his bike at the time.

33. In a later interview on 25 January 2006 he confirmed that account confirming his speed as "… roughly around 30-35mph" and qualifying his description of the Claimant's departure from the pavement "…. not a full blown wheelie, like a bunny hop kind of jump off the kerb".
34. He was asked by the police officer what he did when he saw him come off the kerb and replied "well its almost as if he come off the kerb and its straight away, its instant, so I, as soon as I hit him I swerved and then braked straight away, it just all happened so fast".
35. The Defendant was clearly trying to recollect the best he could how the events had occurred.
36. His statement dated 26 January 2006 presented to the court is based upon questions put by an insurance investigator. At paragraphs 25/27 he reiterated the account above, implying that braking came after the impact.
37. A motorist's recollection and analysis of the sequence of precise actions taken in split seconds in moments of crisis is clearly not easy or necessarily reliable however honest the witness.
38. An account of speed however in my judgement in circumstances such as these may be more reliable particularly when reflected upon and confirmed afterwards.
39. The Defendant accepted from the outset that he was driving at or above the legal limit on the road and confirmed this to be the case in January 2006.
40. I formed the impression that he was a truthful witness.
41. The Defendant denied liability altogether.
42. The central issues for the court relate to the speed of the Defendant's car at the time of impact. Was the Defendant driving too fast, if he had been driving slower would he have been able to avoid the accident?
43. The Claimant's expert evidence is that the speed at impact was about 45mph. The collision occurred on a long straight well lit stretch of road and the Defendant accepts that he saw the Claimant cycling on the nearside footpath. A reasonable motorist therefore ought to have anticipated that the cyclist riding on the footpath would move into the road and a prudent motorist should have been prepared for such a cyclist on the footpath to be about to cross into the road and driven accordingly.
44. The speed limit for Bamfield was 30mph. The basis upon which the Claimant's expert concludes the Defendant's speed was so high is the method of calculation he used to measure speed.
45. It is the method based upon a calculation created by Dr Searle and his collaborator Mrs Angela Searle and contained in their paper The Trajectories of Pedestrians, Motorcycles.
46. Its application to the assessment of pre-impact speed of the motorcar in this case is the subject of sharp disagreement between the experts.
47. Mr Peter Sorton gave evidence in support of the Claimant's case and has impressive qualifications and long experience in the reconstruction of collisions. Dr Searle who gave evidence on behalf of the Defendant has similar impressive qualifications and long experience with the Motor Industry Association advising on safety issues in relation to the design of motor cars and later in research in relation to accident investigation and reconstruction.
48. They cannot agree either as to the method of determining the speed of the car at impact or the speed of the vehicle.
49. Mr Peter Sorton's evidence is that the impact speed was between 41.5mph and 50mph. He used the Searle formula to establish the speed of the vehicle at the time of impact based upon the throw distance of the Claimant from the car following impact.
50. The formula for calculating impact speed applied by Sorton was conceived by the Searls in the 1980's and reviewed in or about 1996.
51. PC Paine the Police Investigation and Accident Reconstruction Officer applied the formula for calculation of speed in this case. Police accident reconstruction experts, it is said, routinely use the calculation and it's widely used by both police and public authorities and all of those needing to establish the speed of the vehicle at impact following collision with both pedestrians and cyclists. It is apparently adopted and taught in accident reconstruction courses in many parts of the world.
52. Dr Searle objects to the application of the Searle formula in this case for two reasons.
53. First he says that its use in factual circumstances such as these is not appropriate because this is not a throw case. Following the initial impact the Claimant's body not only hit the front near side of the windscreen causing it to splinter inwards, but was carried by the vehicle pocketed in the broken windscreen and carried on the roof for a significant period of time before parting from the vehicle and being thrown to the ground bouncing and/or skidding to rest.
54. Mr Sorton agrees that where there is, or there may have been significant carrying after the impact and before throw, the Searle formula cannot be relied upon.
55. He is adamant that there is no evidence of carrying in this case.
56. The second basis of objection derives from Mr Sorton's reliance upon a research paper by Haight and Eubanks in March 1990 entitled Trajectory Analysis for Collisions involving Bicycles and Automobiles.
57. The authors examined a number of simulated collisions between a cyclist and a motor car. The cyclist was represented by a dummy and the bicycle was stationary at impact. The car was driven at various speeds in to the mounted cycle, and the effects of the impact upon the cyclist's body and his movement thereafter were photographed.
58. The known speeds and measured distances of ride and throw were then correlated, and analysed. Various permutations were reduced to three working formulae.
59. The test cohort was small. There were nine simulations in all.
60. Mr Sorton produced this paper. It is one of a limited number of such papers dealing with the effect of cyclist collisions with motor cars. These differ from those involving pedestrians because a mounted cyclist has a higher centre of gravity than does a pedestrian. The collisions in Haight and Eubanks were collisions not unlike that in this case in so far as the rear of the bicycle was struck by the car. It was not a broad side collision wherein the whole length of the bicycle was hit by the front of the motor car as in the German analysis of cyclist collisions with cars collated and analysed by D Otte in his paper "Injury Mechanism and Crash Kinematic of Cyclists in Accidents – An Analysis of Real Accidents" a paper referred to by both experts in their report.
61. Mr Sorton commended the Haight and Eubanks paper to the court in these terms:-

"I am saying it is a useful paper … I think the general principles outlined there can be relied upon by the court".

62. Later in his evidence he substantially resiled from this position because he accepted that he had not worked through the various formulae in the paper which could be said to have application to this collision. Had he done so the Defendant's speed calculated from the distance between the point of impact to the Claimant's final resting place would have been either 29.7mph (variant 1); 25.7mph (variant 2); or 31.6mph (variant 3). Mr Sorton agreed these calculations. If applicable they would tend to support the Defendants case.
63. He said to the court

"I am sorry, I produced a paper to deal with the mechanics of cycle accidents. I regret not having worked through the formulae … I apologise if I misled the court in implying that the whole of the paper can be relied upon for the foundation of analysis in this case. I obviously don't believe it can be otherwise I would not have used the Searle formula".

64. The paper also indicated that the standard Searle formula for calculating velocity of thrown objects could be used, but only if a co-efficient friction of about the normal co-efficient friction for the road was taken.
65. Dr Searle did not cite the Haight and Eubanks paper in his report. He dealt with it in cross examination saying that he'd overlooked it and when taken to specific parts of it said that the standard Searle formula should not be used in cases of cyclist collisions when there was some carrying of the body on the vehicle.
66. He observed that where the standard Searle formula was used by Haight and Eubanks in their paper it could only be made to work fitting the known and measured speed prior to impact by halving the normal co-efficient of friction. A similar result could be achieved by halving the throw distance. Adjusting the Searle formula to the facts of this case produced an agreed speed for the Defendant of 32mph.
67. The Haight and Eubanks paper clearly affords some helpful insights into the behaviour of a cyclist body in relation to the colliding car after impact. It shows that even at modest speeds of 20-30mph in the limited number of trial runs investigated there may be carrying. Furthermore even where there is braking there is shown to be carrying nonetheless.
68. The authors of the paper doubtless mindful of the small cohort of tests expressed the view that there should be further research highlighting the need for caution in considering the conclusions to be drawn from this useful but limited piece of research.
69. The approach to the paper and degree of reliance placed upon it by Mr Sorton indicates that in relation to the analysis of speed using the Searle calculation he was less than conscientious.
70. Dr Searle has not published any papers dealing with cycle collision since the publication of the Searle formula. It is hard to escape the conclusion that he must have been aware that this formula was being widely applied, and possibly in inappropriate circumstances giving unjust results.
71. If the application of the Searle test to cyclists is unjustified in principle then it is hard to understand Dr Searle's reticence in making that known.
72. To be fair to him he does emphasise that most cycle collisions involve some carry although there are circumstances where carry is not involved and observed to be so. In which case doubtless the Searle formula would be appropriate in assessing the impact speed of the vehicle.
73. Both experts agree that where there is evidence of significant carry the Searle formula has no application.

Carrying: the evidence

74. Carrying must be distinguished from mere contact. Carrying connotes support for a time between the point of collision and the final resting point. It follows that for a significant time between the point of collision and the final resting point the body speed was essentially that in common with a motor car.
75. Mr Sorton in his evidence accepts that it is quite a common event for a cyclist to be carried by a car following a collision. He says in his evidence that following impact the cyclist's body would have rotated, going over the bonnet hitting and breaking the windscreen with his head hitting the leading edge of the roof and his legs carrying over and coming into contact with the back of the roof causing the cleaning mark prior to his being thrown off from the vehicle on the real offside. In these split seconds there will also have been rotation in other planes accounting for the impact to the left side of the head causing severe injury and gathering of the glass found in the wound, consistent with damage to the leading edge of the roof where hair was found. Dr Searle does not disagree as to the precise mechanics of the body movement in relation to the car save that he says that the Claimant's body must have pocketed into the broken windscreen before going on to the roof of the car causing the cleaning marks on the rear part of the roof before parting from the car at the rear offside.
76. Mr Sorton's main criticism of Dr Searle's evidence was that there could have been no carriage on the roof. He relied upon the cleaning mark and asserted that there was a broken rear window to support his contention that the body caused these in the course of being thrown from the car. Contact as opposed to carriage.
77. Mr Sorton was in error as to damage to the rear window. None was recorded and the photographs do not depict such damage. I do not accept that there was no carriage on the roof.
78. Mr Sorton did not adequately deal with the suggestion that such carriage as may have occurred was by pocketing at the level of the windscreen as well as from support derived from contact with the roof with the broken sunroof.
79. I was not assisted in the resolution of this issue by the evidence of Mr Porter. Because rotation can be in all planes the fact that the first head impact was to the left side is neutral in my view.
80. Mr Sorton also sought to support his contention that there was no carrying because the Defendant in his account spoke of braking after impact maintaining that braking and carrying were incompatible.
81. It is to be noted that in Haight and Eubanks in a number of those simulations there was braking and I accept the evidence of Dr Searle that there was also carrying. In Seven of the nine tests run the brakes were applied and in relation to two the brakes were applied before impact. In all of the Haight and Eubanks test runs the brakes were applied and there was substantial ride time. Ride time of course is not carry time, it is defined as that period of time starting when the bumper of the striking vehicle impacts the tyre of the bicycle and ends when the cyclist's body strikes the ground. But that time would include carry time when the cyclist's body is supported in part by the motor car.
82. I am driven to the conclusion that on the facts of this case there may have been some carrying as opposed to mere contact at the level of the windscreen and roof following impact and that Mr Sorton's assessment of speed by application of the Searle formula was not appropriate in this case.
83. The court must look at the total picture presented by the evidence in relation to speed. There is no single strand of mute evidence that can be considered determinative.
84. The pattern of damage to the car, not surprisingly is observed by Dr Searle to be similar to that seen in Haight and Eubanks where speeds of up to 32mph were measured in the relevant test runs. However the bicycle was stationary and the "body" a light weight dummy used to limit injury to the driver of the test car.
85. The Claimant in this case was a young man who was relatively tall and well built.
86. Dr Searle in his report and evidence placed reliance upon the position of the bicycle after the collision. He relied upon the Otte data.
87. The bicycle was removed by a member of the public who had driven over it, then replaced it some hours later in what he estimated was the correct position.
88. This was 18 metres from the first glass fragment found in the nearside carriageway.
89. The member of the public concerned did not provide a statement or give evidence and there was no basis for assessing either the accuracy or the reliability of his evidence as to the original position of the bicycle, let alone any reliable basis for the application of the Otte calculations. Dr Seale gave an undue emphasis to this tenuous support for his view
90. Mr Sorton also sought to rely upon the Otte paper and in particular upon diagram 14 based upon the throw distances of injured cyclists, to give indications of a pre-impact speed in excess of 40mph. That data is unlikely to give support because without accurate or reliable information it becomes an impossible task to ascertain pre-impact velocities for either the striking automobile or the cyclist as was observed by the authors of Haight and Eubanks. Furthermore in the examples sought to be relied upon it is not possible to know whether in any of those instances there was carry.
91. Dr Searle relied upon the survival of the Claimant as an indication that the Defendant was not travelling at 45mph as alleged at the time of the collision.
92. Statistically collisions between a motor car and a pedestrian or a cyclist suggests that fatalities would be in excess of 80%.
93. Mr Porter the Neurosurgeon accepted that it was possible to sustain very serious injury even at speeds that were very low. At 30mph 40% of pedestrians would be likely to be killed and more than 10% would be seriously injured.
94. The turning point in Mr Porter's impressive evidence was his characterisation of the Claimant as a young healthy man. Doubtless the excellence of care and the character of the Claimant would bear upon his ultimate outcome. Mr Porter observed that had this accident occurred to him at the age of 48 years there would be no question of survival.
95. In this case no inference can be drawn as to the probable pre-accident speed by virtue of the survival of the Claimant.
96. In this case the evidence of the experts was of limited assistance as to the assessment of impact speed. Both to a degree assumed the mantle of advocate. Dr. Searle by his initial emphatic rejection of the application of the Searle formula to cyclist collisions, and emphasis upon tenuous features of evidence such as the position of the bicycle and the ultimate destination of the cyclist; Mr. Sorton by reason of his failure to be impartial and rigorous in relation to the Haight and Eubanks report and the Otte data. Mr. Sorton closed his mind to the possibility that the Claimant may have been crossing the road to go onto the opposite pavement.
97. At the end of the day the court is left with the evidence of the Defendant as to his probable speed.
98. The experts agree that there was no indication that the Defendant was slow to respond to the emergency created by the cyclist riding out into the carriageway. The cyclist had ridden off the kerb at an angle to go into the path of the approaching car. He was still at an outward angle into the road when he was struck on the offside by the nearside front corner of the car.
99. There is a disagreement between the experts as to the angle between the cycle and the car at the moment of impact. Mr Sorton expresses a view that it was no more than 20º, Dr Searle believes the angle was greater than that perhaps around 35º.
100. The change of position of the motor car resulting in it ending up on the other carriageway shows that it was steered in that direction as described by the Defendant in his account of 25 January 2006.
101. Both experts speculated as to where the cyclist was going when he came off the footpath.
102. I accept his father's evidence based upon the conversation that he had with the Claimant shortly before he left his friend's house that he was going to come home to have supper. A strong imperative for a healthy growing young man.
103. The direction of home was either to continue down the footpath that he was originally on, or to go into the road and continue in the same direction or to cross the road to go on to the other footpath and continue in the same direction. There would have been no point in crossing the road and reversing in the opposite direction as posited by Dr Searle.
104. In my judgement, if he was going home he would have known that he had no rear lights and may well have been going over to the opposite pavement to ride in safety there towards his home. To get across the road could be a straight course or at an angle but in terms of continuing his journey the latter would be more logical.
105. In my judgement on the evidence the angle at impact would have been more than Mr Sorton's 20º estimate and less than Dr Searle's 35, of the order of 25/30º.
106. The bicycle was projected forward by the impact about 18 metres from the first of the glass particles on the road.

The angle

107. The position of the Claimant on the extreme eastern side of the carriageway it is agreed cannot have occurred purely on the basis of the cyclist's own momentum.
108. As observed by Dr Searle there was significant lateral movement of the cyclist and this would have given contact with the car during the time in which the car swerved to the right and is consistent with a degree of carry.
109. The angle at which the Claimant came into the road would of course bear upon the time and opportunity that the Defendant had to avoid a collision.
110. Likewise the speed of the cyclist. Mr Sorton postulates speeds of 12mph being a comfortable speed enabling a cyclist to go from a pavement down a kerb and into the road.
111. Dr Searle suggests a slower speed. Both experts are cyclists. Here we are dealing with a young man on a trail bike the description of the descent from the pavement is that of "bunny hop" by the Defendant and on the balance of probabilities his speed was in the order of 8-10mph.
112. The Defendant was driving an automatic car. He would not have had to change gear manually. He was already moving when he came round the corner into Bamfield. The area is a built up area and subject to a 30mph maximum speed limit. This limit reflects the fact that there are houses next to the sports centre and opposite in Paddock Gardens, and that both pedestrian and wheeled traffic is generated throughout the day time and evening by the sport centre.
113. I have no doubt that the Defendant was familiar with the road. Some times familiarity can reach the point of over familiarity and being too comfortable with the known leading to a failure to adequately concentrate on potential hazards ahead.
114. The Defendant would have known that there was no cycle path and that there was a real risk the cyclist could choose to come on to the road way rather than go down the footpath. He saw a cyclist who was not displaying lights and who therefore may not be so mindful to take such care of his own safety, that the motorist could rely upon his not coming into the road.
115. Even at the maximum permitted speed of 30mph he would have been at the limit of the margin of safety he ought to have afforded to other road users.
116. In this case there was a significant difference between the two road users. One a cyclist balanced on two wheels with little protection, the other a motorist in a stable enclosed vehicle that has fatal potential.
117. By virtue of his inexperience the Defendant permitted himself to drive the vehicle at 35mph which was considerably over the maximum permitted driving limit and safe limit for this residential road.
118. He was aware of speed limits on the road and the risk of a mobile speed camera some distance up the road. I do not think that he exceeded 35mph but was aware as he candidly admitted that he was driving at or near 35mph when the cyclist started to come across the road. The Defendant was in the middle of the nearside carriageway when the collision occurred. His avoidance strategy was to swerve then brake and the car came to rest 34 metres from the point of impact.
119. It is difficult to assess the speed of the bicycle as he came off the pavement to the point whereby its back wheel was 1.5 metres into the road or thereabouts. The description of him suddenly coming off the pavement and using a "bunny hop" is consistent with a young cyclist using the full capabilities of a trail bike. The speed in all probability was of the order of 8-10mph as he travelled into the road at an angle.
120. At the speed the Defendant was travelling there was no chance of avoiding the collision. The distance travelled after impact is consistent with the speed of 35mph given that the road was as described by PC Paine as a wet road and that the Defendant was relatively an inexperienced driver whose reaction time in an automatic car would in all probability be longer than that of a more experienced driver wholly familiar with the car.
121. The Defendant's speed ought to have been in the margin of 3/4 miles or so under the maximum speed limit of 30mph.
122. At such a speed there is a greater likelihood that the cyclist would have been aware of the oncoming vehicle and modified his behaviour, and that the Defendant would have had longer time in which to react and take such evasive action as might have avoided the accident or at least caused less severe injuries.
123. I do not accept the view expressed by Dr Searle that a collision was inevitable even at 5mph. That predicates the scenario whereby the cyclist came out from the footpath having no awareness whatsoever of the oncoming vehicle with engine noise and displaying lights over a comparatively long period of time.
124. I hold that the primary liability for this accident was that of the Defendant by virtue of the excessive speed at which he was travelling.
125. The next issue that I have to decide is that relating to the allegation of contributory negligence. The test of contributory negligence is set out in Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 which provides:-

"… where any person suffers damage as the result partly of his own fault and partly as the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damage is recoverable in respect thereof shall be reduced to such an extent as the court thinks just and equitable, having regard to the Claimant's share in the responsibility for the damage".

126. The burden of proof of contributory negligence is upon the Defendant who has to establish on a balance of probabilities that the Claimant was at fault and the fault was causative of the injury and that it will be just and equitable, once respective responsibility has been assessed, for the Claimant's damages to be reduced.
127. There are two bases relied upon by the Defendant to establish contributory negligence. Firstly riding into the road, and secondly the failure of the Claimant to wear a cycle helmet.

Riding into the road

128. The fact that the Claimant had no rear light has very limited relevance in this case since the road was well lit and the Defendant accepts that he saw the Claimant riding along the pavement in any event and had no difficulty in seeing him. The absence of a rear light might have explained why the Claimant initially preferred to ride on the pavement.
129. The Claimant's inability to give evidence puts him at a gross disadvantage particularly since there were no independent witnesses as to what occurred.
130. The likelihood is that this careful cyclist went into the road way in all probability having seen and heard the oncoming car. It is likely that in the artificial light he misjudged the speed of the oncoming vehicle when he commenced his manoeuvre of "bunny hopping" the trail bicycle from the pavement into the road. There was no cycle path along Bamfield. Strictly he should not have been cycling the pavement.
131. See paragraph 64 of the Highway Code revised 2007 edition. In leaving the pavement at the angle that he did he was bound to come into the path of an oncoming vehicle driving in the centre of the carriageway.
132. He created an emergency situation by so doing. In my judgement the degree of his contribution to the cause of this collision is 50%.
133. The second basis upon which it is contended that there should be a finding of contributory negligence arises out of the Claimant's failure to wear the cycle helmet that he owned.
134. It is generally accepted that the wearing of cycle helmets may afford protection in some circumstances. Paragraph 59 of the Highway Code revised 2007 edition it states:-

"… you should wear

A cycle helmet which conforms to current regulations, is the correct size and securely fastened".

135. Griffiths J in Smith -v- Finch (2009) EWHC at paragraphs 43-45 refers to the Highway Code and at paragraph 44 goes on to say:-

"44. In my judgement the observation of Lord Denning MR in Froom and Others –v- Butcher above should apply to the wearing of helmets by cyclists. It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be "a sensible thing to do" and so, subject to issues of causation any injury sustained may be the cyclists own fault and "he has only himself to thank for the consequences".

I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries".

136. I accept that this approach is the appropriate starting point. No engineering evidence was available to the court as to the types and effectiveness of cycle helmets. They vary considerably in strength, design and effectiveness. There is a school of thought that thinks that the wearing of them gives a rider a false confidence that can lead him or her into dangerous situations. The wearing of a helmet in some circumstances may increase or cause injury.
137. Both Mr Porter the very experienced Neurosurgeon who gave evidence and Dr Ferguson a Consultant Neurologist concluded from a medical point of view that in head injury cases there is a potential benefit in protection and that the literature establishes that cycle helmets are generally beneficial in head injury cases. It is clear that a properly designed helmet worn by a cyclist at speeds of up to 12mph who falls 1.5 metres and hits his head on the pavement is afforded a high level of protection.
138. Dr Ferguson pointed out that the potential benefit of helmets is not limited simply to cases of mild injury but may include cases of severe head injury and referred to the Thompson 1996 study.
139. The head injuries in this case were severe and there was more than one impact causing severe injury as well as the rotational as injuries and oedemas. I am not satisfied that the wearing of a helmet by the Claimant in this case would have had other than the most minimal effect.
140. The Defendant has not discharged the burden of proof of showing that it is more likely than not that a significant albeit small part of the complex pattern of injury would have been prevented.
141. The final matter that I must decide is whether the damages recoverable should be reduced "to such an extent as the court thinks just and equitable, having regard to the Claimant's share in the responsibility for the damage".
142. The Claimant was only 16 years of age when he misjudged the speed of the oncoming vehicle. Although normally a prudent careful cyclist he did not have the maturity and judgement of an adult. The consequences to him of what may have been, a momentary lapse had catastrophic consequences for him when he removed himself from the pavement where he should not have been onto the road.
143. It is just and equitable to reduce the damages recoverable by the Claimant by one-third, the liability of the Defendants being two thirds.