"Mr Justice Griffith Williams' comments in the recent case of
Smith v Finch, has led to concern amongst the cycling community. In this
case, Mr Smith, a cyclist, was hit by a motorbike ridden by Mr
Finch. Mr Smith suffered a serious brain injury. He was not wearing
a helmet.
The Judge accepted that the
collision was caused by Mr Finch who had been riding his motorbike
at excessive speed and had
collided with Mr Smith whilst trying to overtake
him.
The Judge then turned to Mr Smith's
failure to wear a helmet. Such an issue is hardly new, indeed it is
an issue that divides public opinion quite markedly, frequently
comes up in cases involving cycling accidents and is something that is
commonly discussed in the press.
Mr
Finch argued that Mr Smith's brain injury was caused by
Mr Smith's failure to wear a helmet.
Mr
finch was unable to persuade the Judge that Mr Smith's
failure to wear a helmet had made any difference to his injuries
and therefore the argument that his injuries were in any way self
inflicted was rejected.
Mr Finch was found to be liable for
Mr Smith's injuries and unable to prove that Mr Smith was in any
way contributory negligent for his injuries. So far so
good...
Mr
Finch however also argued that the 2004 edition of the
Highway Code stated that "you should wear...a cycling helmet
which conforms to current regulations" and that the Highway
Code could be used in Court proceedings to decide issues of
liability. Just as a
motorist or passenger can be partly at fault ("contributory
negligent") for not wearing
a seatbelt, a cyclist can be contributory negligent for failing to
wear a helmet.
The Judge stated that it did not
matter that there was no legal compulsion to wear a helmet,
because:
"there can be no doubt
that the failure to wear a helmet may expose a cyclist to the risk
of greater injury...and he has only himself to thank for
the consequences....I am satisfied...that the cyclist who
does not wear a helmet runs the risk of contributing to his/her own
injuries."
As a result of the above, failure to wear a helmet may
result in a reduction in damages. Cyclists will though still be glad to know
that the burden of proof that the cyclist's
failure to wear a helmet contributed to his injuries still rests,
as it should, on the Defendant.
In view of the
established medical evidence that currently exists it seems
unlikely that a Defendant will be able to satisfy such a
burden of proof in the majority of accidents involving cyclists and
other vehicles.
As
many cyclists know, medical evidence has
consistently shown that the wearing of a cycle helmet would make no
difference to the injuries sustained by them when involved in
collisions with other
road users. Indeed cycling helmets are only designed and
tested to withstand impact equivalent to an average weight rider
travelling at 12 mph and falling onto
a stationary curb
from a height of 1 metre - hardly the same type of impact as is
involved following a high speed collision with another
vehicle.
Cyclists should however be aware
that their failure to wear a helmet whilst cycling may lead
to a reduction in their damages if it contributed to their
injuries even though it is not a legal requirement to wear a
helmet.
For further advice on road traffic
collisions involving cyclists, please contact
Mark Bowman on 0207 861 4043