Members of
British Cycling and the British Triathlon Federation will be interested to note that the High Court has recently looked again at the vexed question of whether an injured cyclist's compensation should be reduced simply because the cyclist failed to wear a cycle helmet.
There is no legal obligation on a cyclist to wear a helmet. It is a recommendation in the Highway Code but no more than that. However liability insurers are continually seeking to enforce a blanket 25% deduction for failure to wear a helmet where the injured cyclist has sustained some form of head injury.
In the recent case of Robert Smith -v- Michael Finch before Griffith Williams J on 22 January 2009, Mr Smith suffered serious head injuries when his bicycle collided with Mr Finch's motorcycle. The circumstances of the collision were in dispute but the Court found that the collision had occurred because Mr Finch was travelling over the speed limit of 30 mph and had attempted to overtake Mr Smith when there was insufficient room. Mr Finch's insurers then argued that Mr Smith's compensation should be reduced because he had failed to wear a cycle helmet.
Griffith Williams J held that there was no doubt that the failure to wear a helmet might expose a cyclist to a risk of greater injury. However, in raising the argument that Mr Smith had been negligent himself in failing to wear a helmet, Mr Finch's insurers were obliged to show that it was more likely than not that Mr Smith's injuries would have been less severe if he had been. They did not produce any evidence to support this argument. The Judge concluded on the evidence available it was likely that Mr Smith hit the ground at a speed more than 12mph and so wearing a helmet would have made no difference to the injuries he sustained. In the circumstances, therefore, although there was an argument that Mr Smith's failure to wear a helmet exposed him to a greater risk of injury there was no evidence that it actually had done so. Therefore his compensation should not be reduced.
Penny Knight, head of Leigh Day's cycling and sports injury team, comments:
Although at first this case looks as though it gives the upper hand to liability insurers in relation to the issue of contributory negligence related to the non-wearing of a cycle helmet, in fact it re-affirms the point that if the insurer wants to raise such an argument then they must have the evidence to back it up. This remains a question of fact in each case as there is no clear cut medical opinion to show that wearing a helmet will always reduce or eliminate injury. Liability insurers need to get their evidence in order to succeed with this and until they do cyclists should not feel forced into accepting a reduction in compensation simply because they chose not to wear a helmet.
Penny Knight is head of the cycling and sports injuries team at law firm Leigh Day & Co who represent members of British Cycling and the British Triathlon Federation who are injured in road traffic crashes and other incidents.
Information was correct at time of publishing. See terms and conditions for further details.