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On Your Own Head Be It

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.

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