Head case

Every summer thousands of people take to their bicycles. Many wear helmets and reflective clothing to protect themselves from injury and ensure increased visibility. Many don't. Consumer Reports June 2006 tested cycle helmets for impact safety and found that two failed the tests, prompting a recall of one brand. This article looks at whether or not helmets affect the outcome of accidents and whether failing to use one should be an issue of contributory negligence. The evidence is conflicting. The courts must consider causation in terms of whether helmets should be worn by 'reasonably prudent cyclists' to prevent injury and understand what helmets are designed to guard against when arguments on contributory negligence are presented.

How effective are helmets?

When New South Wales legalised the wearing of helmets, the use by adults increased from 26 per cent in 1990 to 85 per cent in 1992, yet the rate of decline of head injuries did not change. In Australia, Canada and America cycle helmets are compulsory. In England, the Highway Code recommends using helmets and reflective clothing. In 2002, 130 pedal cyclists were killed and 2,320 seriously injured. Any form of helmet and clothing must surely help to protect against injury.

The current standard for helmet design, European EN 1078, is meant to protect against fatal head injury when a cyclist falls on a flat surface at no more than 15mph. Any faster or when hitting anything else (such as a car), the helmet provides little protection. Determining whether, on impact, the force is linear or rotational is important. Diffuse injuries, which are more common and more serious for brain injuries, result from rotational stresses on the brain. Spherically shaped helmets are more likely to minimise the rotational effect than the trendy duck-shape aerodynamic helmets.

Understanding the circumstances of the accident and mechanism of the injury sustained are therefore vitally important in establishing causation. If the helmet would not have prevented the injury, there can be no contributory negligence. Cycle helmets seem to provide comprehensive protection in few circumstances.

Contributory negligence

It cannot be assumed that, if a cyclist fails to wear a helmet, they are contributorily negligent. This is primarily an issue of causation. What was the injury sustained? Could it have been avoided or minimised by wearing a helmet? It must be remembered that helmet use can only prevent an upper or mid-facial injury and then only injuries the helmet is designed to protect.

Comparisons have been made to Froom v Butcher [1976] QB 286. Here the court determined that, if a seatbelt is not worn and wearing one would have prevented the injuries altogether, a 20 -25 per cent reduction on liability should be applied. If the evidence is that the injuries would have been substantially less had a seatbelt been worn then there is a 15 per cent reduction. If wearing a seatbelt made no difference to the injuries sustained, then there is no reduction.

One may suggest a deduction of 25 per cent as a starting point for negotiations. It may, however, prove difficult to sustain unless there is clear factual and medical evidence relating to causation. The injury must be one which the helmet (if worn) would have prevented and the contribution only affects that part of the general damages relating to the head injury.

Reported cases are rare. Drinkall v Woodhall [2003] EWCA Civ 1547 considered whether 20 per cent or higher was an appropriate reduction for contributory negligence against a 14-year-old. A 20 per cent reduction had been agreed between the parties, but the defendant attempted to resile on that agreement and argue for a 25 per cent reduction. While the court ruled on an 80-20 liability split, it is not clear if this represents the contributory negligence argument.

In Swinton v Annabel's (Unreported, 8 July 2004) the claimant was an experienced cyclist who was riding in a park where using a helmet would have been over cautious (the outcome may have been different if he had been on the road). In addition, as contributory negligence would only affect damages relating to a head injury, which was only worth a few hundred pounds, any deduction for contributory negligence of 10-15 per cent would have reduced damages by £20-30 and, as a de minimis reduction, the court would have refused to make it in any event.

In A (a child) v Shorrock [2001] 10 CL 386 QBD, the court was clear that the failure to wear a helmet did not amount to contributory negligence. The court heard scientific evidence that the performance of a cycle helmet was much too complex for a sweeping deduction to be made.

Reasonably prudent cyclist

The common consensus is that there is a duty to protect oneself from potential injury as a reasonably prudent cyclist and to follow the Highway Code's recommendations to do so. Clearly there are issues surrounding helmet design and manufacture since current helmets protect against very specific types of injury. Until the public campaign for wearing helmets reaches a level comparable to that for the wearing of seat belts when Froom was decided, Froom will be distinguished when arguments are raised on contributory negligence. At present there is no plan to make helmets compulsory and, although they are recommended by the Highway Code, it is not a legal requirement and each case will continue to be decided on its merits.

Victoria Handley is a solicitor in the Injury Risk Group at national commercial law firm, Beachcroft LLP

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