Contributory negligence?

Contributory negligence?

judge's gavel and documents
In an ongoing case, a Cycling UK member sustained a brain injury when he was involved in a collision with a motorist who failed to give way at a roundabout. The insurance company admit negligence on behalf of their insured driver. They are, however, arguing that the injured cyclist was partly responsible for his injuries due to not wearing a cycle helmet. Paul Kitson explains why Slater & Gordon are resisting the contributory negligence claim.

While Rule 59 of The Highway Code states that cyclists ‘should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened’, this is not a legal obligation. It is advisory.

Insurers have long sought to argue in cases involving head/brain injury that it is appropriate to reduce an injured person’s damages when they fail to wear a cycle helmet. They argue that there are parallels to be drawn with seatbelts. In Froom v Butcher (1975), Lord Denning MR held that, if a negligent defendant can prove that the wearing of a seatbelt would have avoided the injuries altogether, then the finding of contributory negligence should be 25% and, if the injuries would have been less severe, a 15% reduction of damages would be appropriate. Lord Denning delivered this judgement before it was compulsory to wear a seatbelt.

There is no clear judicial authority on whether or not it is appropriate to make a finding of contributory negligence against a helmetless cyclist. The only High Court authority is the case of Smith v Finch (2009). In 2005, Robert Smith was riding his bicycle in Brightlingsea, Essex when he was involved in a collision with a motorcycle ridden by Michael Finch. Mr Smith sustained serious head injuries and had no recollection of the events. He was not wearing a cycle helmet. The defendants argued that he was partly responsible for his injuries.

In his judgement, Mr Justice Griffith Williams held that Froom v Butcher should apply to the wearing of helmets by cyclists, and that, subject to issues of causation, any injury sustained may be the cyclist’s own fault. However, the trial judge did not make a finding of contributory negligence on the part of Mr Smith because the defendants failed to prove, on the balance of probabilities, that any of the injuries may have been reduced or prevented by the wearing of a helmet.

Cycle helmets manufactured in accordance with EU regulations are designed to provide protection at impact speeds of about 12mph or less. The trial judge preferred the opinion of the claimant’s engineer, Dr Chinn, who opined that the impact speed was in excess of 12mph and therefore the wearing of a helmet would not have made a difference. Accordingly, there was no finding of contributory negligence against Mr Smith.

In cases involving serious injuries or fatalities, it is often difficult for defendants to prove that the wearing of a helmet would have prevented or reduced the severity of the injuries sustained. This is why there is scant judicial guidance on the appropriateness to make findings of contributory negligence against a helmetless cyclist.

I am of the opinion that it is wrong to put any blame on a cyclist for not wearing a helmet. In most European countries, a motorist who injures a cyclist must prove they were not at fault. It is not possible in mainland Europe to argue that a helmetless cyclist was partly at fault for their injuries.

In relation to the injured Cycling UK member referred to in the question, we will resist the arguments being put forward by the defendants both in relation to the general legal principle and in relation to ‘causation’. We are adducing evidence to prove that, even if he was wearing a helmet, it is likely it would not have prevented the injuries sustained.

For Cycling UK’s policy on helmets, see cyclinguk.org/helmets.

Paul Kitson

​Partner from Slater and Gordon Lawyers

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