When Not Wearing a Cycle Helmet Makes No Difference To The Injury

In the case of Smith v Finch, in the High Court, the Claimant, a pedal cyclist was riding his bicycle when he was involved in a collision with a Yamaha 600cc motorcycle ridden by the Defendant.  The pedal cyclist sustained serious head injuries.

The pedal cyclist was not was not wearing a cycle helmet.

The Defendant, who was the only witness to the accident and who suffered a fractured left forearm.  The Defendant contends that the Claimant emerged from a Road to his left and diagonally opposite the driveway and pedalled into the Road at a time when it was too late for the Defendant to avoid the collision.

The High Court referred to the judgement of Froom v Butcher 1976, the following passage was quoted from the judgment of Lord Denning MR:-

“It is compulsory for every motorcar to be fitted with seatbelts for the front seats… Seeing that it is compulsory to fit seatbelts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seatbelt. Everyone is free to wear it or not as he pleases. Free in this sense, that if he does not wear it he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.

Much material has been put before us about the of wearing a seatbelt. It shows quite plainly that everyone in the front seats of a car should wear a seatbelt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads… the provision of the Highway Code which contains this advice”; Fit seat belts in your car and make sure they are always used”. This advice has been in the Highway Code since 1968, and should have been known to the plaintiff at the time of his accident in November 1972.”

“In determining responsibility, the law eliminates the personal equation. It takes no notice of the of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.”

“Whenever there is an accident, the negligent driver must bear by far the greatest share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seatbelt was entirely inexcusable or almost forgivable? …

The Judges View on Helmets

The Court exclaimed that we live in a practical world. In most of these cases, the liability of the driver is admitted, the failure to wear a seatbelt is admitted, and the only question is: what damages should be payable?

This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.

Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seatbelt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seatbelt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damage is attributable to the failure to wear a seatbelt should be reduced by 15%.”

Claimant’s argument wearing a helmet was not compulsory

In this case the Claimant submitted that burden of proof is on the Defendant to prove that the Claimant 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. He submitted the decision and the reasoning behind the decision in Froom v Butcher.

The Claimant went further and said that Froom v Butcher should not be applied so as to equate the guidance to wear safety helmets with the requirement to wear seat belts. He submitted that whereas Parliament intended in 1976 that the use of seat belts should be compulsory, there is no intention to make the wearing of safety helmets compulsory.  Reference was made to study; “Cycle helmet wearing in 2004″ by Inwood, Whitley and Sexton, which showed that the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘major built up roads’ was 28.7% and that this was much higher than the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘minor built up roads’ which was only 9.0%”. The Government then decided there should be no compulsion.

However the Court in this case dismissed this argument, compulsory or not, if a cyclist does not wear a helmet there is a possibility of a finding of contributory negligence.

Expert Cycle Helmet Evidence was called

Expert evidence on the protection of cycle helmets were called at court.  It was accepted that the wearing of helmets may afford protection in some circumstances and the court was of the view that no matter how long or short the journey or where it took place the application of the ratio of Froom v Butcher applied re the wearing of seatbelts to that of the wearing of cycle helmets.

But not using a cycle helmet would have made no difference

The expert evidence produced was such that the collision and consequential head injury was likely to have exceeded 12 mph.  Despite discussions on helmet safety standards and the specific dynamics of the collision, it was determined that the severity and specifics of the accident rendered the absence of a helmet less critical in this context.

The Defendant’s expert was of the view that when the claimant’s head struck the ground it lower than the speed at which helmets are tested in accordance with BSEN 1078, that a modern helmet would have provided protection to the occipital region because the design would have prevented the back of the head striking the ground and the thickness of the polystyrene foam in the helmet would have provided significant protection even though the protection at the edges of a helmet is reduced.

The Claimant’s expert on the other hand is that both this helmet and a modern helmet would have afforded the Claimant no protection from head injury because of the speed at which the Claimant hit the ground

Consequently, the defendant’s burden to prove contributory negligence by the claimant for not wearing a helmet was not met, especially given the evidence suggesting the collision’s force exceeded levels at which a helmet would provide effective protection. This case underscores the complexity of assessing contributory negligence in accidents where protective gear is involved but may not significantly alter the outcome due to the accident’s severe conditions.

Did the judge conclude that not wearing a helmet was tantamount to contributory negligence?

The judge decided on balance, that the evidence of the [Claimant’s expert] is to be preferred because I am not satisfied on the balance of probabilities that the Claimant struck the ground at the low speed necessary for an approved helmet to have protected him from the severe head injuries.

Was contributory negligence found against a cyclist for not wearing a helmet?

The judge concluded that the speed was in excess of 12 mph and so the wearing of a helmet would have made no difference.

The Defendant had not discharged the burden of proving contributory negligence on the part of the Claimant and for more fundamental reasons, the Defendant has failed to persuade the Judge that an approved helmet would have prevented or made less severe the head injuries sustained by the Claimant.

The judge further advised that,

‘I cannot exclude as a possibility even if the impact was low enough that the injuries responsible for the Claimant’s residual disabilities were caused by a contre-coup injury – an injury from which a helmet would not have protected the Claimant. Accordingly I make no finding of contributory negligence against the Claimant.’

Fact Sensitive on Helmet Use

The case illustrates the importance of obtained expert motorcycle compensation solicitors where a detailed analysis of the facts of the case.  Here not wearing a helmet was key to the amount of compensation the injured cyclist would have received.  Had the cyclist been found contributory negligence he could have lost say, 10% – 25% or more of his compensation.  This could be substantial particularly in severe head injury claims.

Expert evidence was key in this case.  The provision of expert evidence to assess the effectiveness and protection afforded by wearing a helmet and medical experts to advise upon the likely brain/skull injury had a helmet been warn.

See also Helmet and Head Injuries

Full Judgement of Smith v Finch