Should you wear a helmet every time you cycle?

March 31, 2009

accident, Negligence

Source: http://www.independent.co.uk/news/uk/home-news/outrage-at-ruling-on-helmets-for-cyclists-1645736.html; http://news.bbc.co.uk/1/hi/uk_politics/3563671.stm; http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-law; http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492

 

Read the full case report of Smith v. Finch [2009] EWHC 53 (QB) here: (http://www.ctc.org.uk/resources/Campaigns/0902_Smith-v-Finch-judgment_brf.pdf)

 

 The case of Smith concerns a cyclist (Robert Smith) who was struck and knocked off his bike by a motorcyclist (Michael Finch), while making a turn at a junction. At face value, this seems simply a run-of-the-mill traffic collision case, indeed the exact facts of the incident were disputed and the defendant argued that it was the claimant who was responsible for causing the collision by pulling out as he did. The case is important however because the defendant also argued that in the event that he should be found liable, the claimant should have his damages reduced for being contributory negligent for not wearing a cycle helmet and it is this part of the decision that has provoked the most controversy.

 

After listening to various witnesses give evidence, the court found in favour of the claimant, stating that in all likelihood, the defendant had been driving at an excessive speed and had ridden much too close to the claimant as he tried to overtake him [38]. Ultimately, the claimant also succeeded in rejecting any allegations of contributory negligence as the court found that the mechanics of his head injury would not have been reduced or prevented by a helmet [56]. The court did however suggest that in other cases, a deduction could be made.

 

In particular, the court at [43] stated that: “as it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road.”

 

The court concluded that given the concern of the government and road safety campaigners was to reduce road accident casualties, “the cyclist who does not wear a helmet runs the risk of contributing to his / her injuries” [45] even if the initial cause of the collision was not their fault.

 

Although roundly criticised in the press, at face value, the approach of the court does seem to agree with Dr Julian Fulbrook’s 2004 article on “Cycle helmets and contributory negligence” published in 3 JPI Law 171-191. The article suggests that an automatic 25% deduction for not wearing a cycling helmet was wholly unjustified. Dr Fulbrook did however suggest that there were limited instances where a helmet could have prevented an injury and on these occasions, damages could be reduced by 10-15%.

  

Note the comments though of Martin Porter QC (http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492 /159 New Law Journal (2009) 337) Who argues that Smith departs from the previous High Court case of A (a child) v Shorrock [2001] All ER (D) 140 (Oct) where Judge Brown stated that if he had found liability against the defendant, he would have made no deduction for contributory negligence for failing to wear a cycle helmet as there was no fault: the use of a helmet not being mandatory and the type of cycling by the claimant not being unusually hazardous.

 

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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2 Comments on “Should you wear a helmet every time you cycle?”

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