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Robert Smith v. Michael Finch - 22nd January 2009
The High Court was recently asked to consider whether a cyclist should be found to have contributed to his injuries because he failed to wear a helmet.
In a road traffic accident Mr Smith had sustained severe head injuries, including left extradural haematoma and left occipital fracture, traumatic subarachnoid haemorrhage and multiple cerebral haemorrhages. Due to his head injuries he was left with cognitive and behavioural problems which affected his speech, concentration and memory. He now needs assistance with everyday tasks and has developed post traumatic epilepsy.
The motorist argued that there should be a finding of contributory negligence for the following reasons:-
1. The 2004 edition of the Highway Code provides guidance to cyclists, "you should wear a cycle helmet which conforms to current regulations".
2. A motorist or a passenger can be guilty of contributory negligence for his/her failure to wear a seatbelt so a cyclist should be in the same position for failing to wear a safety helmet. He relied upon the decision of the Court of Appeal in Froom v. Butcher (1976) 1QB286.
Counsel for the cyclist argued:-
1. The burden of proof was on the motorist to prove that the cyclist had failed to take "all such precautions as a man of ordinary prudence would observe" and that his failure was a contributory cause of his injuries.
2. The Court of Appeal decision of Froom v. Butcher should not be applied to cycle helmets. In 1976 Parliament intended to introduce the compulsory wearing of seatbelts whereas there is no such intention with regard to cycle helmets.
3. He placed reliance on a study undertaken by the Department of Transport "Cycle Helmet Wearing in 2004" by Inwood, Whitley and Sexton which showed that the overall percentage of adult male cyclists wearing helmets on major built up roads was only 28.7% and that on minor roads the percentage was only 9%.
The judge held:-
1. The study by Inwood, Whitley and Sexton does not support an argument that as the majority in 2004 were not wearing helmets it would be wrong to impose a requirement that they should be worn.
2. The wearing of helmets may afford protection in some circumstances and it must therefore follow that a cyclist of ordinary prudence should wear one.
3. Froom v. Butcher should apply to the wearing of cycle helmets "it matters not that there is no legal compulsion for cyclists to wear helmets"…. “because there can be no doubt that the failure to wear a helmet may expose the cyclist to the greater risk of injury; such failure would not be a sensible thing to do and so, subject to the issues of causation, any injury sustained may be the cyclist’s own fault and he only has himself to thank for the consequences".
4. He held that on the balance of probabilities a cyclist who does not wear a helmet runs the risk of contributing to his/her injuries. In addition he observed that if there was a repeat of the study in 2008 this would show a much greater use of cycle helmets.
5. On the evidence in the facts of this case, the Judge was satisfied on the balance of probabilities that the impact speed was faster than 12 miles per hour. He held that he was not satisfied on the balance of probabilities that the cyclist’s head struck the ground at sufficiently low speed for an approved helmet to have protected him from the severe head injuries. "My conclusion is that the speed was in excess of 12 miles per hour so the wearing of a helmet would have made no difference". Furthermore, he held that the design of the helmet would have exposed the back of the Claimant’s head and that there is a real possibility that his head came into contact with the raised kerb of the driveway and that the helmet would not on that scenario have protected the back of the head.
6. Furthermore, the judge pointed out that if a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that issue. The motorist failed to call any evidence on this and therefore he failed to make out his case on contributory negligence.
What does this decision tell us at Paradise?
This judgment should not come as a surprise. Given the recent inclusion into the Highway Code of the rule that cyclists should wear a helmet and the increasing number of cyclists who in fact wear them, it was always the likelihood that a Judge would find that failure to wear a helmet could result in a finding of contributory negligence. This case is a reminder that the burden of proof is on the Defendants to prove that the wearing of a helmet would have prevented or reduced the severity of the injuries sustained by the Claimant. Helmets are only designed to afford protection for relatively low impact collisions. The Defendants must seek medical evidence to prove their case on causation.
The wearing of helmets is a hot topic and is a bit like Marmite – you may just hate them. I have got so used to wearing a helmet that when I don’t it is a bit like not wearing a seatbelt in a car – it feels strange. I used to ride a motorbike and have seen the damage that sliding along a road surface can do to your skin. If my head hit the road and I was not wearing a helmet I suspect that it would hurt or do damage at almost any speed. I accept that at high speed a helmet may not prevent any injury at all, but in most cases it would reduce the injury and damage. I saw what happened to a helmet in the Tour de France a while ago when Cadel Evans came off. The helmet was trashed, but the wearer was able to get up and put a new helmet on and ride away – without the helmet I suspect he would have needed a few aspirin at least and would have been picking grit out of his scalp for days.
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