Finding of contributory negligence can be made for failing to wear a cycle helmet; defendant must show failure was a contributory cause of the accident.
Mr Smith, who was riding a bicycle, was involved in a collision with a motorcycle ridden by Mr Finch. Mr Smith sustained serious head injuries. The Judge found that Mr Finch was entirely at fault for the collision. Mr Finch alleged that a finding of contributory negligence should be made on the basis that Mr Smith should have been wearing a cycle helmet. He relied on the Highway Code, which provides the following guidance: “you should wear a cycle helmet which conforms to current regulations.” Mr Finch also relied on the observations of Lord Denning in the case of Froom v Butcher , where a finding of contributory negligence was made for failure to wear a seatbelt.
Held: Lord Denning’s observations in Froom v Butcher should apply to the wearing of cycle helmets. It does not matter that there is no legal compulsion for cyclists to wear helmets. The cyclist who does not wear a helmet runs the risk of contributing to his/her injuries. However, the burden is on the defendant to prove that the claimant failed to take ordinary care of himself and that this failure was a contributory cause of the accident. Mr Finch had failed to show that an approved helmet would have prevented the head injuries or made them less severe. Accordingly no finding of contributory negligence was made.
Comment: Although Mr Finch was unsuccessful in arguing contributory negligence, this judgment provides an authority for arguing contributory negligence in other cases. However, claimants are still likely to defend such allegations. It should be noted that the wearing of cycle helmets is not compulsory and there is conflicting evidence as to the benefits to be gained. Whether to wear a helmet remains a personal choice.
In any event, being able to show that the claimant failed to wear a helmet is not enough in itself. The burden of proof is on the defendant to show that wearing a helmet would have prevented the injury or made it less severe. If defendants wish to argue contributory negligence, they will need to ensure they have evidence addressing the design of the helmet, the speed and direction of impact and the injury sustained.