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On your head be it? Bicycle helmets and recent legal cases.

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Many cyclists were seriously concerned when a High Court Judge recently remarked that un-helmeted cyclists who suffer head injuries may not be entitled to full compensation if it can be shown that a helmet would have reduced or prevented their injuries.

After all, it is not compulsory to wear a helmet whilst cycling and there is no clear or conclusive evidence to support the view that compulsory wearing would either advance the cause of cycling, or necessarily improve cyclists’ safety on the road.

Although not open to challenge, Paul Kitson (the partner at RJW Solicitors who run CTC’s legal service) believes the judge’s remarks will, in practice, have little if any effect on the legal position. His words are probably no more than an “obiter dicta”, ie comments made in passing, which could in principle influence future cases but are not binding.  In practice, any case serious enough to come to court is almost bound to involve impact forces greater than cycle helmets are designed to cope with. That was certainly the judge’s conclusion in this and all other such cases which the courts have decided on so far, and it is hard to imagine a case where the opposite conclusion is reached.

However it is still alarming that the Judge concluded that, in general, a cyclist's decision not to wear a helmet may be regarded as "contributory negligence" (i.e. compensation for someone else's negligence should be reduced on the basis that the cyclist was also partly to blame for their own injuries), in cases where the helmet would have made a difference.  Moreover, Mr Justice Griffith Williams reached his conclusion without hearing any of the contested evidence over the overall effectiveness of helmets. 

We believe that Mr Justice Griffith Williams was wrong to extend a legal principle - that not wearing a seat-belt could amount to "contributory negligence" -  to cyclists not wearing helmets.  This particular principle is based on a 1976 ruling by Lord Denning in the case of Froom v Butcher, made at a time when seat-belt wearing was widely accepted and the Government intended to legislate to make it compulsory. In contrast, cycle helmet wearing rates remain low (particularly for children) and the Government is still saying it has no such intention pass laws. 

The Judge also referred to the Highway Code's (non-compulsory) advice that cyclists "should" (i.e. not "MUST") wear helmets (rule 59).  However, the Highway Code also advises pedestrians to wear bright or fluorescent clothing in poor daylight and reflective materials at night (rule 3), yet a court would be unlikely to reach a finding of "contributory negligence" against an injured pedestrian who hadn't done so.

The good news, though, is that Mr Justice Griffith Williams did award cyclist Robert Smith full compensation, ruling that his particular injuries would not have been prevented by a helmet: the impact speed was above 12mph and the blow was to the back of Smith's head, an area not necessarily protected by a helmet.

The collision with motorcyclist Michael Finch has left Smith with cognitive and behavioural problems which have affected his speech, concentration and memory. He needs assistance with everyday tasks and has developed post traumatic epilepsy. See the judgment in full, or a note on the case from Paul Kitson, Partner at CTC's solicitors Russell Jones and Walker.

For more information on the contested evidence on helmets follow CTC's helmet campaigning and the Bicycle Helmet Research Foundation: www.cyclehelmets.org.

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