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Smith v Finch, High Court, 22 January 2009

9 February 2009
The issues

Road traffic – cyclist – whether obligation is on cyclist to wear helmet – whether failure to wear helmet is cause of contributory negligence.

The facts

On the 8th June 2005 at 7.40pm the Claimant was riding his bicycle on Samson’s Road, Brightlingsea in Essex when he was involved with a collision with a motorcycle ridden by Mr Finch, the Defendant. The Claimant suffered serious head injuries and had no recollection of events. He was not wearing a cycle helmet. On the facts the Judge found that the Defendant was entirely to blame for the collision as a result of his excessive speed and the fact that he rode too close to the Claimant as he tried to overtake him. An issue arose as to the relevance of the fact that the Claimant had been riding a bicycle without a helmet.

The decision

(on the issue of the helmet)
The wearing of helmets by a cyclist may afford protection in some circumstances. It must follow that a cyclist of ordinary prudence would wear a helmet, no matter on a long or a short trip or whether on quiet suburban roads or a busy main road. The introduction to the Highway Code stated that:-

“Knowing and applying the rules contained in the Highway Code could significantly reduce road accident casualties. Cutting the number of deaths and injuries that occur on our roads every day is the responsibility we all share.”

The observations of Lord Denning in Froom v Butcher should apply to the wearing of helmets by cyclists. It did not matter that there was no legal compulsion for cyclists to wear helmets and that a cyclist was free to choose whether or not to wear one because there was no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury.

On the balance of probabilities a cyclist who did not wear a helmet ran a risk of contributing to her or his injuries.

The burden was however on the Defendant to prove that the Claimant failed to take ordinary care of himself or, in other words, to take such case as a reasonable man would take for his own safety by not wearing a helmet and, secondly, that his failure was a contributory cause of the damage.

On the facts and also bearing in mind that the Defendant had adduced no medical evidence to support his case that the Claimant’s injuries would have been reduced or prevented by his wearing a helmet, the Defendant had failed to discharge the burden of proving contributory negligence.

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