For those who attended our recent webinar presented by Dr John Camplin from Hawkins on "Head Trauma & The Helmet", you will know that the failure to wear a helmet can have significant consequences. This is also true in relation to legal claims – specifically in the area of contributory negligence. But, while wearing or not wearing a helmet is likely to have a significant bearing on a claim, the individual circumstances of each case could negate such consequences.
The legal effects of wearing or not wearing a helmet are most often considered by the courts in cases involving cyclists who have been injured in accidents. For a cyclist not wearing a helmet, any claim they make is likely to be met with allegations of contributory negligence. An interesting dynamic to such allegations is that the wearing of helmets while cycling is not mandatory in the UK, merely recommended in the Highway Code. But, as Lord Denning said in Froom v Butcher [1976] 1 QB 286, not being mandated to use safety equipment makes us: ‘Free in the sense that everyone is free to run his head against a brick wall, if he pleases…If he does it, it is his own fault; and he has only himself to thank for the consequences’.
The impact of not wearing a helmet
There are many cases where damages have been reduced for contributory negligence for the failure to wear a helmet. An often quoted case is that of Reynolds v Strutt and Parker [2011] EWHC 2263 (QB) where a cyclist competing in a cycle race had his damages significantly reduced (by two thirds) for not wearing a helmet where one was available to be worn.
When helmets don't help
Although deductions can be achieved it must be shown that the wearing of a helmet would (on the balance of probabilities) have prevented or reduced the injuries sustained. In Smith v Finch [2009] EWHC 53 (QB) the judge accepted that a cyclist who did not wear a helmet was knowingly putting himself at a greater risk of injury. However, evidence showed that the impact had taken place at over 12mph, the speed of collision to which bicycle helmets had to be tested to. No finding of contributory negligence was made as the wearing of a helmet would have made no difference to the injuries sustained.
When wearing a helmet doesn't soften the blow
It must also be borne in mind that a helmet must be worn effectively. In Capps v Miller [1989] 1 WLR 839, the pursuer wore an unfastened helmet and suffered severe head injuries in a collision. In that case, the medical evidence could not point to any worsening of his injuries by the failure to fasten; however, the court determined that a 10% reduction in damages would be appropriate in the circumstances.
What does all of this mean?
It is well established in the law of contributory negligence that a cyclist should wear a helmet, even though not legally mandated to do so. Nevertheless, as in all claims of contributory negligence, it must be proven that the wearing of a helmet would have lessened or prevented the injuries sustained. In practice this means seeking input from experts, medical and otherwise, to determine the causative effect the wearing of a helmet would likely have made. As was discussed in the aforementioned webinar, this is often likely to come down to whether the speed of impact was below or above that which helmets are required to be tested to.
