Cycle helmets and contributory negligence revisited

Despite the increasing availability of cycle helmets and publicity as to their protective benefits, the percentage of cyclists wearing a helmet is…

The popularity of cycling in the UK continues to rise, particularly in urban areas. Despite the increasing availability of cycle helmets and long standing publicity as to their protective benefits, in the absence of a statutory requirement to wear a cycle helmet, the percentage of cyclists wearing a helmet is modest and remains a matter of personal choice. The Highway Code recognises cyclists as vulnerable road users and states that cyclists ‘should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened’.

A cyclist’s failure to wear a cycle helmet may lead to a finding of contributory negligence and a consequent deduction in damages for personal injury. For a deduction to be made, the defendant must plead the allegation and thereafter establish that the cyclist was at fault for not wearing a helmet (followers of the Sikh religion are exempted by Section 16 (2) of the Road Traffic Act 1988 from wearing protective headgear whilst wearing a turban) and that this failure and was causative of greater injuries. Once the above two limbs have been satisfied, the court will then apply a ‘just and equitable’ deduction to the claimant’s damages, by reference to the parties’ respective blameworthiness and the causative potency of each of their actions. The degree of reasonable care expected of a child cyclist will be determined by reference to the degree of care which may reasonably be expected of a child of the claimant’s age at the date of the accident.

Research suggests that when settling a case, parties routinely apply a discount of around 25% to claims concerning the non-use of a cycle helmet by an injured cyclist.

As to the potential negligence of an unhelmeted cyclist, consideration should be given at an early stage to the type of protection that a cycle helmet affords, the particularity of the accident circumstances and the location and severity of the head injuries sustained.

Cycle helmets sold in the UK are required to comply with the relevant European Standard and are designed to provide effective protection from rider impact when falling from a stationary riding height of 1 metre onto a stationary kerb shaped object, at an impact speed of no more than 12 mph. Helmets offer protection by distributing the impact force over a larger surface area and by absorbing some of the impact energy. They are not designed nor tested to offer effective protection to cyclists who collide with a moving vehicle or otherwise suffer a glancing blow.

Many severe head injuries result from rotational injury. It has been opined that cycle helmets offer little effective protection to a rapidly rotating skull and that the wearing of a helmet could worsen the severity of head and neck injuries as it increases the head impact surface area, adds additional weight to the skull and may convert a direct force into a rotational force.

Expert evidence from cycle helmet experts and medical experts will be required in order to investigate causative fault. It will address the design of the cycle helmet and its protective benefits, the speed, type and direction of the impact force, the injury sustained and whether the use of a properly fitted helmet would have avoided or lessened the injuries sustained.

Case law on contributory negligence in relation to the non-use of a cycle helmet provides helpful guidance as to the evolving judicial approach to the issue.

In Williams v Ashby (1999) (Unreported)the main allegations of contributory negligence related to the claimant’s failure to wear a cycle helmet and his failure to wear fluorescent or otherwise conspicuous clothing. The claimant’s cycle helmet expert, Dr Nigel Mills, concluded that helmets are less effective when a cyclist hits a vehicle as opposed to the road surface, a serious brain injury is quite common when cyclists suffer a glancing blow from a vehicle as distinct from a direct collision, and a helmet would not have afforded any protection to the claimant in this case as the head injury resulted from the right hand side of the face colliding with the road surface. The defendant’s expert, Mr Kevin Clinton supported the contention that the claimant had been negligent in failing to wear a helmet. The defendant abandoned the above allegations of contributory negligence on the morning of the trial.

HHJ Brown in A (A Child) v Shorrock (2001) (Unreported) dismissed the claim of a 14 year old cyclist who had collided with a car and held that if liability had been established, a deduction for contributory negligence would not have been made given the absence of a statutory requirement to wear a cycle helmet.

The defendant in Drinkall v Woodhall [2003] EWCA Civ 1547 successfully sought permission to resile from a liability agreement which had been made on an 80/20 basis in the claimant’s favour for the non-use of a cycle helmet. It was argued that a higher discount of 25%, was achievable. It is unclear from the judgment whether the original deduction was confined to the cycle helmet issue only.

In Smith v Finch [2009] EWHC 53 (QB) it was argued that a deduction of 15% for failing to wear a cycle helmet should be made in a case involving a cyclist who had sustained a serious brain injury following a collision with a motorcyclist, further to the guidance provided by the Highway Code and the observations of Lord Denning MR in Froom v Butcher, where a finding of contributory negligence for a failure to wear a seatbelt was made, despite the absence of a legal compulsion to wear one.

In Smith, the allegation of contributory fault failed on causation given the finding that the claimant’s head had struck the ground at more than 12mph, the speed at which cycling helmets cease to be an effective form of protective headgear. In his judgment, Mr Justice Griffith commented, “…there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury…” and “…subject to issues to issues of causation, any injury sustained may be the cyclist’s own fault…”. In arguing fault as to the non-use of a cycle helmet defendants have often relied on the above comments of Mr Justice Griffith.

Reynolds v Strutt and Parker [2011] EWHC 2263 (QB) concerned a cyclist who, whilst participating in a cycling race organised by his employers, sustained a head injury following a collision with another competitor. The claimant was not wearing a cycle helmet, despite the availability of helmets, and the impact speed was found to be below 12 mph. HHJ Jones found that the employer had failed to properly assess the need to recommend and require the participants to wear cycle helmets and had been negligent in failing to communicate information regarding the wearing of helmets. A finding of two-thirds contributory negligence was made on the basis of the claimant’s reckless actions in the race and his failure to wear a cycle helmet.

Phethean-Hubble v Coles [2012] EWCA Civ 349 involved a 16 year old cyclist who was riding his bicycle at night, without a helmet and without lights, on a pavement. He was struck by the defendant’s vehicle, which was travelling in excess of 30mph and sustained a severe brain injury. HHJ Wilcox commented that although there was no legal compulsion to wear a helmet, the starting point was to accept that a cyclist who failed to wear a helmet ran the risk of contributing to his injuries. The court found that the use of a helmet and lights would have made no difference to the claimant’s injuries and the allegations of contributory negligence were accordingly dismissed.

In Sinclair v Joyner [2015] EWHC 1800 (QB) Mrs Justice Cox refused to make a finding of contributory negligence in relation to the cycle helmet issue as medical evidence had not been adduced to show that the failure had made the claimant’s injuries worse. Findings of contributory negligence were however made on other grounds.

Capps v Miller [1989] 2 All ER 333 involved an injured motorcyclist but provides useful guidance to cycling cases involving an unfastened helmet. In Capps, the claimant sustained severe head injuries whilst wearing an unfastened helmet. The Court of Appeal held that this had contributed to the seriousness of his injury. Whilst medical evidence did not allow a finding to be made as to extent to which injuries had been made worse by the failure, a reduction of 10 % was however applied.

Of interest is the approach followed by a German Federal Court of Justice in relation to the non-use of a cycle helmet in 2014 (reference VI ZR 281/13). The Federal Court overturned a lower court’s contributory negligence discount of 20% and ruled that no such deduction should apply. In reaching a decision as to the standard of care that a prudent and sensible cyclist was required to exercise, the Federal Court appears to have been influenced by research which indicated that only 11 % of urban cyclists in Germany wear a cycle helmet.

There remains some uncertainty as to whether a cyclist in the UK will be found to be at fault when a finding is made that the wearing of a cycle helmet would have prevented or lessened the injuries. The extent of the contributory negligence discount to be applied when the sole causative fault relates to the absence of a cycle helmet remains unclear. Each case is fact specific and will be determined on this basis.

When considering the actions of the cyclist, it is important to give consideration to other potential issues such as the cyclist’s compliance with the rules of the road, recklessness, visibility to other road users, positioning on the road and use of a phone or headphones whilst riding. The totality of the actions of the defendant will also require proper analysis in order to form an educated view as to the likelihood of, and extent of any, contributory negligence discount.

From a case handling perspective, the importance of carrying out an early thorough investigation in order to preserve the evidence and establish the facts and thereafter appointing suitable experts to investigate the causative effect of the accident is vital. An allegation of contributory negligence should be pleaded at the earliest opportunity.

For further information please contact Christina McDonald, Associate on 0151 242 6928 or email christina.mcdonald@weightmans.com.

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