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In the Queens Bench Division on 22 January 2009 Griffith Williams J found that in circumstances where a Defendant had adduced no medical evidence to support his case that another party’s injuries would have been reduced or prevented by wearing a helmet he had failed to discharge the burden of proving contributory negligence.

 

The case involved a cyclist and a motorcyclist. The Claimant, Smith, was a cyclist; the Defendant, Finch, was a motorcyclist. Smith had sustained serious head injuries when his bicycle was in collision with Finch’s motorcycle. Finch was the only witness as Smith had no memory of the event. The area was covered by a speed limit of 30 miles an hour. Smith’s case was that Finch had driven at excessive speed, failed to keep a proper lookout and failed to see Smith who was driving on the appropriate side of the road. However Finch had made a Part 20 claim against Smith for personal injury contending that Smith had come out of a side road into his path and given him no reasonable opportunity to avoid the collision. Furthermore Finch claimed that Smith’s injuries were sustained wholly or partly because he had not been wearing a helmet.

 

The Court gave Judgment for the Claimant, Smith, on the basis that Finch had been travelling at a speed in excess of the 30 miles per hour restriction and that the collision occurred as he tried to overtake Smith. He was found entirely to blame and was said to have ridden too close to Smith as he tried to overtake. The Court also found that Finch’s account was designed to shift the blame.

 

Interestingly no contributory negligence was found either. It was not seen as determinative that there was no legal duty for cyclists to wear safety helmets because that the failure to wear such a helmet obviously exposed the cyclist to a greater risk of injury; such failure is like the failure of the car user to wear a seatbelt and the Court referred to the leading case of Froom v Butcher [1976] QB 286 CA (Civ Div) in this regard. Froom’s guidance of a 25% reduction where a seatbelt would have prevented the injury, and 15% where it would have reduced the severity of the injuries remains good law.

 

It was found on the balance of probabilities that Smith had hit the ground at a speed greater than 12 miles an hour. At this speed, it was concluded that the wearing of a helmet would have made no difference to the injuries sustained. The medical evidence was that if a helmet in good condition which satisfied EU regulations had been worn, it would have given effective protection if the Claimant's head had struck the ground at a speed of about 12 mph or less, provided the head impact location was above the "test" area. However, in addition the injuries to Smith’s head were at the back of the head and so the shape of most modern helmets (described as “scalloped”) would probably not have prevented the injuries. However, even if the impact speed had been low enough for a helmet to have afforded protection, Finch had adduced no medical evidence to support his case that Smith’s injuries would have been reduced or prevented by his wearing a helmet.  Thus Finch had failed to discharge the burden of proof of contributory negligence which clearly lies upon the Defendant.

 

Consequently, in any road traffic collision that involves an argument as to “protective equipment”, whether that be a seatbelt in relation to a car or helmets in respect of cyclists or motorcyclists, what is clear from this case is that it is vital to obtain appropriate medical evidence to support contentions that the injuries would have been totally prevented or reduced in severity by the wearing of the “protective equipment”.

 

Nick Thomas Symonds