The use of cycling helmets is frequently a contentious topic. In the UK, the Highway Code and frequent safety campaigns promote their use as almost a necessity but there is no legislation in place to require use as yet. On the continent, however, the norm appears to be to cycle without a helmet.

From a legal perspective, the UK courts view cyclists who were not wearing helmets when suffering injury in an accident as being partly to blame in instances where their injuries would have been avoided or reduced if they had been wearing one. A recent decision of Germany’s highest court, however, has ruled that it is not negligent to ride without a helmet, prompting the Penningtons Manches’ personal injury and clinical negligence team to review the situation in the UK.

Contributory negligence is a principle under which a claimant’s damages may be reduced to take into account any responsibility on their part for the injuries they have suffered. A typical example is where a passenger injured in a car accident was not wearing a seatbelt at the time of the accident. The level of contributory negligence is for the courts to decide on what is “just and equitable”. They will calculate a percentage figure for contributory negligence and the damages will be reduced by that figure. For example, if the courts find that someone is 75%  responsible for their injuries, they will receive 25% of their damages.

Whether the failure to wear a cycling helmet amounts to contributory negligence has been discussed by the courts on a number of occasions yet, surprisingly, there is very little case law on the point - little of which shows any consistency. To date, there has only been one case where a claimant has actually been found at fault for not wearing a helmet and the failure of which resulted in more significant injury. The case of Reynolds v Strutt & Parker LLP involved a collision between two cyclists during a closed road bike race organised by their employer. Mr Reynolds was involved in a collision with a fellow competitor and suffered a head injury, which was aggravated as a result of his failure to wear a helmet. The employer argued contributory negligence on the basis that Mr Reynolds failed to wear a helmet but he argued that he should have been provided with one for the event.

The courts accepted that, while the employer did not provide helmets, competitors were advised they were available when given their bikes. The competitors were, however, neither encouraged nor required to wear helmets. It turned out that only one in 12 competitors chose to do so. Witness evidence, however, showed that Mr Reynolds was cycling in an aggressive manner and may have been to blame for the accident in any event.

Based on the information available, the courts found in favour of Mr Reynolds, deciding that there was insufficient risk assessment and failure to encourage or require competitors to wear a helmet. The court also held that Mr Reynolds was in part responsible for both the accident, due to his riding style, and the extent of his injuries, due to his failure to wear a helmet. The court decided to apportion 66% of the blame to Mr Reynolds, reducing his damages to 34%. This is the only case where wearing a helmet has resulted in a finding against a cyclist. Arguments were raised in the case of Smith v Finch, where a cyclist was run down by a motorcyclist, and Phethean-Hubble v Coles, where a cyclist was struck by a motorist yet, in both cases, while contributory negligence was considered, the expert evidence showed that a helmet would not, in fact, have made any difference to the injuries sustained. It is frequently noted that the speeds at which these accidents occur exceed those to which a helmet is tested.

Based on the UK case law to date, it would appear that, in the right set of circumstances, the failure to wear a helmet would result in a finding of contributory negligence. This is at odds with the apparent views in Germany. Until the courts make a decision solely on the point, however, this will remain untested.

William Broadbent, personal injury and clinical negligence solicitor, commented: “It will be interesting to see if decision of the German Supreme Court  will become a more widely accepted view in the future. “There is significant evidence that, for low speed impacts, cycling helmets do make a difference but whether they make a difference in a higher speed collision is less clear. The expert evidence used in case law to date would appear to suggest that it would not.

“There is divided opinion on the use of helmets between the UK and mainland Europe and the case law suggest that there is also a division on the level of obligation to use a helmet use. Until a case is decided directly on the point or a law is introduced in the UK to make helmet use compulsory for cyclists, the threat of contributory negligence remains over the head of cyclist claimants involved in an accident if they do not wear a helmet.”