A cyclist, who was not wearing a helmet, suffered serious
injuries when he rode off the pavement onto the road and was hit by
a car. Does any of this constitute contributory negligence?
The case
Phethean-Hubble v Coles [2011] EWHC 363
The issue
It is not unusual to see cyclists on the roads without cycling
helmets. Indeed, there is no legal requirement to wear a helmet,
and some have argued that doing so can give a rider false
confidence, which can in turn lead them into dangerous situations.
Nonetheless, the Highway Code recommends that one should be worn.
Paragraph 59 of the revised 2007 edition states: "You should wear a
cycle helmet which conforms to current regulations, is the correct
size and securely fastened." A common question for the courts is
whether failure to adhere to this recommendation should result in a
finding of contributory negligence on the part of the cyclist.
The facts
This case involved a nasty collision in Bristol between a
16-year-old cyclist and a car being driven by a 17-year-old man.
The basic circumstances of the accidentwere established without
difficulty. The claimant had been at a friend's house and had
decided to return home for his dinner - "a strong imperative for a
healthy, growing young man," as Judge Wilcox observed in his
judgement. He was on his bicycle and, choosing the shortest route
home, rode off the pavement at an angle onto the road. As he did
so, he was struck by the defendant's vehicle, which was said to be
speeding. The claimant was not wearing a helmet, and suffered
severe injuries as a result of the collision. There were two
questions for the court. Firstly, was the defendant speeding?
Secondly, was there any contributory negligence by the claimant
based on his riding straight into the road and/or due to the fact
that he was not wearing a helmet?
The decision
There was a dispute between experts regarding the question of
whether the defendant was speeding but, after considering the
evidence, the court found that he was. That left open the question
of contributory negligence. With regard to the failure to wear a
cycle helmet, the judgement of Mr Justice Griffith Williams in
Smith v Finch was referred to with approval when Judge Wilcox
stated: "In my judgement the observation of Lord Denning in Froom
and Others v Butcher above should apply to the wearing of helmets
by cyclists. It matters not that there is no legal compulsion for
cyclists to wear helmets and so a cyclist is free to choose whether
or not to wear one, because there can be no doubt that the failure
to wear a helmet may expose the cyclist to the risk of greater
injury; such a failure would not be "a sensible thing to do" and
so, subject to issues of causation, any injury sustained may be the
cyclist's own fault and he has only himself to thank for the
consequences... I am satisfied on the balance of probabilities,
that the cyclist who does not wear a helmet runs the risk of
contributing to his/her injuries." This was accepted as the
appropriate starting point, though Judge Wilcox did acknowledge the
school of thought that the wearing of a helmet can give a rider
false confidence. However, in this case, both the neurosurgeon and
neurologist who gave evidence concluded: "In head injury cases
there is a potential benefit in protection, and the literature
establishes that cycle helmets are generally beneficial." They also
noted that this does not merely apply in cases of mild injury. In
the circumstances of this case, however, Judge Wilcox said: "I am
not satisfied that the wearing of a helmet ... would have had other
than a minimal effect." He therefore held that the defendant had
not successfully shown there was contributory negligence for the
failure to wear a helmet. That left the issue of the way the
claimant had ridden onto the road. It was held that in 'bunny
hopping' his bike onto the road in the way that he had, the
claimant had created an emergency situation, and in light of that
his degree of contribution was held by Judge Wilcox to
be 50%. Given that he did not have the maturity and
judgment of an adult, and given that this was a momentary lapse of
judgement, the judge reduced the damages recoverable by
one-third.
Marco Rinaldi
This case demonstrates that while there is no legal
requirement on cyclists to wear a helmet, the courts will take a
common sense approach to the question of contributory negligence.
It is clear that defenders will be able to argue that failure to
wear a helmet was a contributing factor. However, as this case also
demonstrates, the circumstances of the accident and the causal
effect of the wearing of a helmet on any injury will probably
colour a court's point of view in deciding whether to make any
reduction.
