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Personalised helmets illustrating the impact of not wearing a cycle helmet

With cycling fatalities on the rise in 2021 against 2020 (Guardian, June 2021)1 you may be surprised to learn that wearing a cycle helmet in England & Wales is still not (at the time of writing in October 2021) a legal requirement, though it is encouraged by the Highway Code. In this article, I will consider the legal position around helmets and their use.

The starting point is actually found in the issue of seatbelts. In the 1976 case of Froom v Butcher, the court held that someone who doesn’t wear a seatbelt will likely see a reduction in their damages to reflect contributory negligence in the amount of 25%. Seatbelts, at this time, were not a legal requirement, but were encouraged by the highway code, similar to cycling helmets now. But is 25% in all cases realistic?

The principle of contributory negligence can be summarised as follows: if you suffer damage by the fault of another, but you are also partly to blame for this damage, any compensation awarded will be reduced in proportion for your responsibility for the damages on a percentage basis.

So with this in mind, the question we have to ask is whether not wearing a cycle helmet has caused the damage or injuries? If, for example, a cyclist sustains only a broken leg and broken ribs, it is clear that wearing a helmet would not have prevented these injuries. It would surely therefore be unjust to reduce that cyclist’s compensation award. So how have the courts applied this?

In Smith v Finch [2009], the court held that if a Claimant fails to wear a helmet, a court will likely find that they failed to take reasonable care for your own safety, and that the highway code recommendation should be taken seriously. In this case however, there was no reduction as the court found that wearing a helmet would not have made a difference to the injuries sustained.

In Reynolds v Strutt & Parker LLP [2011] the court followed the approach in Smith and held that a cyclist who did not wear a helmet was not taking care for his own safety. The court reduced the award of damages by two thirds. It is important to note that in that case, the reduction was also representative of the Claimant’s reckless cycling when involved in a cycling race, so in a case involving a typical collision on the road, such a dramatic reduction is perhaps unlikely. That said, this does nonetheless serve as an example of what a court may find if a Claimant does not wear a helmet.

In Capps v Miller [1989], the Claimant was wearing a helmet but it was unfastened. He sustained a very severe head injury when involved in a collision. The court held that even though the medical evidence could not show that his injuries had been made worse by the failure to fasten the helmet, a 10% reduction would be appropriate to take the failure into account.

To conclude, it is clear to see that if a Claimant is involved in a collision and is not wearing a helmet, and their injuries were caused or made worse by not wearing a helmet, there is going to be reduction in their damages, potentially by a significant amount.

Produced by Jack Lloyd, Irwin Mitchell

Jack Lloyd is a Chartered Legal Executive lawyer in the Serious Injury team at Irwin Mitchell’s Southampton office. His practice includes acting for clients involved in road traffic collisions, accidents at work or accidents in a public place, who have sustained orthopaedic injuries, internal trauma, brain injuries and spinal injuries. Jack is an accredited Litigator with APIL (Association of Personal Injury Lawyers) and is also the Chair of Trustees for Headway Southampton.

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References

1 www.theguardian.com/world/2021/jun/24/cyclists-killed-on-british-roads-rose-by-40-in-2020-official-figures-show

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