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It is national cycle week this week (18-26 June) and the benefits of cycling are being promoted across the country.  However, cyclists should be aware of the potential legal consequences if they fail to wear cycle helmets and are involved in a road accident.

Under the Highway Code, cyclists are advised to wear cycle helmets that conform to safety regulations, is the correct size and securely fastened.  However, it is not compulsory. 

Historically, the courts have been reluctant to allow any contributory negligence for the failure to wear cycle helmets and decided that, in certain circumstances, to wear a helmet would be seen as over cautious (Swinton v Annabel’s [2004]). In Re A (a child) v Shorrock [2001], Judge Brown said that there was “no statutory requirement for him to do so, and he was not engaged in any particularly hazardous kind of driving during which it might be thought prudent to wear a helmet.”

The leading case on whether the courts will reduce the damages awarded because a cyclist did not wear a helmet is Smith v Finch [2009].  In this, the claimant was cycling when he was involved in a collision with the defendant’s motorcycle.  He suffered severe brain injuries and sued the defendant for negligence.  The defendant, however, argued for a reduction in damages on the grounds that the claimant was not wearing a cycle helmet at the time of the accident and was therefore partly to blame for his injuries.  The judge, Mr Justice Griffith Williams, accepted the evidence that the claimant’s head hit the ground at more than 12mph – the speed at which it is believed that helmets no longer offer protection. The judge also accepted that impact was at the back of the claimant’s head, so a helmet would not have made any difference.  He therefore refused to accept that this was a significant factor in the claimant’s injury.

However, when ruling on the case, the judge also expressed the view that not wearing cycle helmets could put cyclists at fault and make them partly responsible for their own injuries.  He said: “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 […] There can be no doubt that the failure to wear a helmet may expose a cyclist to a greater risk of injury […] and so subject to issues of causation any injury sustained may be the cyclists own fault and ‘he has only himself to thank for the consequences’ […] That said, the burden is on the Defendant to prove (i) that the Claimant failed to take ordinary care of himself, or in other words, to take such care as a reasonable man would take for his own safety by not wearing a helmet and (ii) that his failure was a contributory cause of the damage.”

In this case, the judge found that the failure to wear a helmet had not contributed to the injury, but he clearly took the view that he would have been willing to make such a finding if the defendant had been able to prove it.

The issue was revisited again earlier this year in Phethean-Hubble v Coles [2011].  In this, the claimant cyclist was hit by the defendants’ motor vehicle and one of the allegations of contributory negligence made by the defendants was that the cyclist was not wearing a helmet.  The judge in this case found that the driver was primarily liable for the accident and then dealt with the contributory negligence points.  He reiterated the comments made by the judge in Smith v Finch, and stated that he accepted this approach was the appropriate starting point.  Both the neurosurgeon and neurologist who gave evidence concluded that, from a medical point of view, the literature establishes that cycle helmets are generally beneficial in head injury cases.  The judge went on to say it is clear that a properly designed helmet worn by a cyclist who falls 1.5 meters at speeds of up to 12mph and hits their head on the pavement is afforded a high level of protection.

However, the judge then went on to state that the head injuries in this case were severe and there was more than one impact causing injury. He was not satisfied that wearing a helmet would have anything but the most minimal effect in this case. Therefore, he found that the defendant had not discharged the burden of proof of showing that it is more likely than not that a significant (albeit small) part of the complex pattern of injury would have been prevented.

Defendants will always argue a reduction in damages for claimants failure to wear cycle helmets, as was the case in Froom v Butcher.  However, the courts are not willing for this to be an automatic right.  The burden of proof rests with defendants and there appear to be many hurdles to overcome.  Currently, Smith v Finch allows for injuries sustained in accidents under 12mph to potentially be reduced in damages.  However, as the case of Phethean reflects, for this to succeed the medical evidence needs to support the view that a cycle helmet would have made a material difference to the injuries sustained by the claimant.

Wearing cycle helmets is still not a legal requirement in the UK (as it is in a number of other countries), and whether to wear a helmet remains a matter of personal choice.  However, you should be aware that if you choose not to wear one and have the misfortune to be involved in an accident through no fault of your own then – depending on the circumstances – if you are not wearing a helmet you run the risk of any compensation being reduced.

For more information, contact Lyons Davidson’s Head Injury team.