The main legal mechanism for reducing damages is the doctrine of contributory
negligence66. It is a standard line of defence in many tort cases where an injured victim is claiming compensation. Where the ‘sole cause of damage’ is the claimant’s default, then they will recover nothing, but after the Law Reform (Contributory Negligence) Act 1945 damages can be apportioned according to the degree of fault. Up until 1945 it was an absolute defence to show any ‘contribution’ at all on the part of the claimant, and only subsequently was it possible to determine a case on the basis of a percentage liability: the damages ‘recoverable in respect thereof shall be reduced to such an extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’67. Note that this is not a share in the blame for the injury, but ‘share … in the damage’68. However, as stated in a classic judgment ‘one person being in fault will not dispense with another’s using ordinary care for himself’69.
Contributory negligence is not the only defence in this area, as the high watermark of this type of defence is to allege that the plaintiff ‘assumed a risk’ and was volenti non fit injuria (No injury is done to one who consents)70. In the volenti defence, the claimant is fully aware of the risk and has willingly accepted it. Lord Phillips of Worth Matravers MR in the recent case of Donoghue v Folkestone Properties had to deal with an expert diver who, after at least five pints of beer on Boxing Day, went for a midnight swim off the harbour slipway, diving into shallow water, and was rendered tetraplaegic. This near-suicidal behaviour led to a finding that no duty was owed to him, so the cases can be viewed either in the light of no duty owed, or of volenti71. Similarly a trespasser who intentionally crosses over barricades and locked gates must be taken to assume the full ‘normal’ risks, and be the ‘author of his own misfortune’72.
In the USA some helmet cases are met with this ‘assumption of risk’ defence73, and in the UK it seems to be proposed from time to time in respect of negligent drivers; however in modern circumstances the volenti rule only operates when there is near-suicidal risk-taking, and has also been excluded from passenger cases by legislation. On the historical side, Lord Denning for example in Nettleship v Weston indicated that ‘In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited.’74 Knowledge of a risk of injury is not enough, nor is a willingness to take that risk, so nothing short of an express intention to waive any rights would seem appropriate. For example, in Morris v Murray75 the Court of Appeal had to deal with some roistering friends on a pub crawl, followed by a ‘drunken escapade heavily fraught with danger’ in a light aircraft, on a day when flying lessons had been cancelled because of poor weather conditions. The flight was ‘short and chaotic’ and the inevitable disaster occurred. But a personal injuries claim by the passenger was eventually thrown out because he had consented to go on this crazed flight with the drunken pilot. The judge at first instance, Judge Rice, adopted the more merciful course of determining 50 per cent contributory negligence for the claimant, but the Court of Appeal overturned that decision and said that the passenger was volenti; he had known that the pilot was drunk. Mr Murray had a blood alcohol content equivalent to 17 whiskies, and that concentration of alcohol was more than three times the limit permitted for a car driver. Other near-suicidal volenti cases include not retiring a safe distance in a quarry when passing electricity through detonators76; suggesting someone ‘have a go’ with a sledgehammer when confronted with a live shell left over from the war77; and clambering over a cliff-top fence outside a social club at a seaside leisure camp78. There are many such cases in the USA, but perhaps one of the most comprehensive demonstrations of an ‘assumption of risk’ is the Federal case of Gard v. U.S., where three Californian students, returning home from a trip to Nevada, saw the remains of an old mine approximately 200 yards from the highway. Descending a horizontal shaft with one flashlight between them, the claimant fell into a vertical shaft and became tetraplaegic79.
The position on travelling with a drunk driver has changed since the famous case
of Dann v Hamilton80, where a passenger took a lift with the driver of a car who was obviously under the influence, to see the Coronation decorations in 1937. Asquith J held that the maxim volenti non fit injuria had no application to the case; and he gave judgment in favour of the injured passenger81. Subsequently section 149 of the Road Traffic Act 197282 prevents the defence of volenti whatever the ‘antecedent agreement’ between passenger and driver.
The second line of defence behind the volenti rule is the doctrine of contributory negligence. As we have seen in Morris v Murray, a judge originally reduced the damages for the injured passenger by 50 per cent, but the Court of Appeal then extinguished the damages altogether. Although judges have complete discretion on the amount of reduction, adopting the time-honoured formula that the reduction must be ‘according to the circumstances of each cases’, there is often a tariff approach. This going-rate reduction can sometimes be laid down in an appeal decision, as it was with the issue of safety belts in cases. Well before the wearing of seat belts became compulsory in 1983, the Court of Appeal in 1975 laid down a yardstick of a 25 per cent reduction. It is this figure that is now increasingly being used in cycling cases. And when there is a fatality, the reduction still applies, to the detriment of the bereaved family83. However, this practice is highly questionable.
A close analysis of the Froom v Butcher shows that the Court of Appeal had in mind three separate scenarios, which were laid out by Lord Denning:
Where failure to wear a seat belt made absolutely no difference, there should
be no reduction in damages at all. Where injuries might have been less severe if a seat belt had been worn, then damages could be reduced by 15 per cent. And only if ‘damage would have been prevented altogether’ should a reduction of 25 per cent be contemplated.
The ‘rolling’ historical position of seat belts litigation is instructive. First, with front seat belts, from 1967, all new cars and those manufactured since 1st January 1965, were required to be fitted with front seat belts. Then in the 1970s national advertising campaigns were conducted to encourage people to wear seat belts voluntarily – the ‘clunk click’ TV commercials in particular – which cost £ 2.5 million between 1972 and 1974. Consequently the wearing rate rose to about 33 per cent. Initial proposals for the compulsory wearing of seat belts were made in 1973. But it was not until 31st January 1983 that the use of seat belts in the front of cars became compulsory. Originally, this was for a trial period of three years, but compulsory wearing of front seat belts became permanent in 1986. With rear seat belts there was a similar history: starting 20 years later, when new cars had to be fitted with rear seat belts after April 1987, then there was then a more truncated development, with compulsory restraints for children under 14 from 1989, and an extension to adults in 1991. The use of seat belts by drivers and front seat passengers is now very high, with over 90 per cent of people in the front of cars wearing seat belts, but there is a much lower rate for the use of seat belts in the rear of cars, and a substantial proportion of children are still transported without restraint84. On the twentieth anniversary of compulsory seat belts legislation it was estimated by the Parliamentary Advisory Council for Transport Safety that this law had saved at least 7,400 and 140,000 serious injuries in the UK85. There was of course furious opposition to this requirement, and many, such as the plaintiff Harold Froom, had their non-scientific responses: he claimed his reason for not wearing a seat belt in 1972 was that ‘I do not personally like wearing seat belts. I have seen so many accidents on the road where, if seat belts are worn, then the said driver would never have got out of the vehicle that had been in the smash’. That argument was given short shrift by Lord Denning: The plaintiff had been injured as a result of a head-on collision with another car, which was the sole fault of that driver, Mr Butcher, overtaking; he pleaded guilty to a driving offence. Mr Froom suffered injuries to the head and chest which would have been avoided if he had been wearing his seat belt; he also suffered a broken finger which would not have been avoided. Until Froom v Butcher there had been over a dozen cases in the lower courts, with variable results on the issue of contributory negligence. In some instances it was clear that seat belts played no part as a feature in the level of damages, for example in Challoner v Williams Shaw J found on the evidence that the plaintiff was in fact wearing a seat belt, and also that even if he had not been wearing it, his injuries of a broken neck would have been just the same. Obiter he nevertheless indicated that a failure to wear a seat belt was not contributory negligence86. In other cases reviewed by Froom v Butcher there had been a determination that a seat belt would have reduced or prevented damage, and the level of deduction ranged from several cases where there was no reduction, despite evidence that the absence of a seat belt had contributed to additional injury87 to a reduction of one third88. The Court of Appeal reviewed the judgements and the scientific literature, and Lord Denning pointed out that ‘In these seat belt cases, the injured plaintiff is in no way to blame for the accident itself89. However, in considering a reduction for contributory negligence ‘The question is not what was the cause of the accident. It is rather what was the cause of the damage’90. In a typical sub-heading, Lord Denning then went on to consider ‘The sensible practice’ in the context of it being ‘compulsory for every motor car to be fitted with seat belts for the front seats’ so that ‘Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seat belt. Everyone is free to wear it or not, as he pleases. Free in this sense, that if he does not wear it, he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do.’91 The scientific estimate at the time, indicated by the Minister of Transport, was that ‘the risk of death or injury is reduced by 50 per cent if a seat belt is worn’92. The Highway Code too contained the advice: ‘Fit seat belts in your car and make sure they are always used, which had been there since 1968, and should have been known to Mr Froom in 1972. The legal position of the Highway Code is that, although a failure to observe ‘does not render a person liable to criminal proceedings of any kind’, the Highway Code ‘can be relied on in civil proceedings as tending to establish or negative liability’93. Lord Denning then indicated the legal requirement of exercising ‘all such precautions as a man of ordinary prudence would observe’94 and indicated his tariff reductions of 25 per cent; 15 per cent; and zero deduction where the ‘evidence will show that the failure made no difference’95.
In respect of riding a motorcycle without wearing a helmet, the leading case is
O’Connell v Jackson96 in 1971, which is about an injured claimant on a moped, technically a motorised pedal-cycle and therefore in law not very different from a bicycle. This decision was in the era before compulsory helmet wear97. The Court of Appeal came to a view that a motor cyclist who fails to wear a crash helmet in circumstances where a prudent road-user would do so and who is injured in an accident, may be held in part responsible for the injuries which he would not have received if he had been wearing a helmet, even though he was in no way to blame for the occurrence of the accident. At first instance Payne J held that the defendant motorist was solely to blame for the collision and that the plaintiff was not guilty of any contributory negligence. However, Edmund Davies LJ delivering the judgment of the Court of Appeal said that the failure of the plaintiff to wear a crash helmet should, in all the circumstances, have been held to constitute contributory negligence and ought accordingly to have led to a reduction in compensation. The evidence, which was not challenged, was that, while wearing a crash helmet would not have prevented or diminished the risk of the collision occurring, it ‘would probably have reduced the gravity of his head injuries’. A key point was that in paragraph 24 of the latest edition of the Highway Code at that time was the suggestion that ‘When on a motor cycle, scooter or moped, always wear a safety helmet,’ although it was ‘seriously open to doubt whether a copy was available to the plaintiff before he sustained his accident in the following month’. He said he was unaware of the existence of this advice in the Code. The earlier edition restricted itself to the advice (printed on the cover and not as part of the Code) that, ‘Motor Cyclists should always wear properly fitted protective helmets’, and made no reference to moped riders. The Court noted that in Hilder v Associated Portland Cement Manufacturers where a motor cyclist was killed as a result of being hit by a ball kicked by a boy playing in a field adjoining the highway, Ashworth J declined to hold that the failure of the motor cyclist to wear a crash helmet constituted contributory negligence on his part, pointing out that no advice on the matter appeared in the Highway Code and the absence of statutory regulations making compulsory the wearing of helmets98. Another critical matter in O’Connell was the transcript, as the claimant admitted he had been considering obtaining a crash helmet99. The defendants relied very heavily on the evidence of the claimant to suggest that he was an ‘experienced road-user of mature years [who] realised that the prudent user of a moped would wear a crash helmet for his own safety’s sake’, although they did not attempt to say that there should be a general proposition that failure to wear a helmet must in all circumstances lead to contributory negligence. The Court therefore held that he was ‘alive to this risk’ and had only himself to blame for failing to remedy the omission, so that his damages would be reduced 15 per cent.
It is therefore very important when applying these important precedents to the issue of cycle helmets, to note that these civil cases relied very considerably on the current Highway Code, introduced in 1999. That must be the inevitable civil yardstick for what the ‘prudent cyclist’ would consider as appropriate road behaviour. One key change in the latest edition has been to add provisions about ‘vulnerable road users’, indicating to drivers that ‘The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders’100. But in the section entitled ‘Rules for Cyclists’ there is now a blunt statement under ‘Clothing’: You should wear a cycle helmet which conforms to current regulations’101. In addition the Highway Code indicates that cyclists ‘should wear … light-coloured or fluorescent clothing which helps other road users to see you in daylight and poor light [and] reflective clothing and/or accessories (belt, arm or ankle bands) in the dark’102. An associated pictogram reinforces the message on helmets and fluorescent clothing. ‘Should’ is not a mandatory word, and can be contrasted with the ‘must’ in respect of ‘must have front and rear lights lit … must also be fitted with a red rear reflector’103 which denote the provisions of the Road Traffic Act and regulations. Nevertheless these rules in the Highway Code are very salient points about what may be judged about ‘the reasonably prudent cyclist’ coming before the civil courts.
Another related issue was raised in Capps v Miller104, which is the self-evident point that when a helmet is worn, but the chin strap is left unfastened, the trial judge held that injuries had been increased by ‘some incalculable degree’105. The defendant in that case was a drunk driver, who ran into the moped which was stationary just prior to the plaintiff turning right into the driveway of his home. Various theories were put forward as to the fastenings of the helmet, which had ended up in the lap of the car passenger, but the trial judge determined that it had been unfastened at the outset and adopted the view of a neurosurgeon that the plaintiff’s ‘brain injuries were a good deal more serious than they might have been had his helmet stayed on until his head made contact with the road inside it’. However, in considering the ‘factors of causative potency and blameworthiness’ Henry J considered that the collision ‘catastrophic in its consequences … was 100 per cent the defendant’s fault’ and refused to reduce the award of damages. The Court of Appeal reviewed the 1945 Act and came to a view that ‘the judge fell into error’ in eliding blame for the incident itself and blame for the severity of injuries. They felt that ‘apportionment’ in damages was appropriate. Croom-Johnson LJ indicated that although Froom v Butcher was a seat belt case as opposed to the pre-compulsion crash helmet case of O’Connell v Jackson ‘now that both have been put on a statutory basis I see no reason to distinguish between seat belt cases and crash helmet cases and I would apply the dictum of Lord Denning MR to crash helmets just as he spoke of it in relation to seat belts. Just as the unfastened seat belt is not a way of wearing a seat belt, so an unfastened helmet will not be a way of wearing the statutory helmet’106. The correct approach therefore would be that in future ‘If the presence of the helmet would have made no difference at all, then the damages should not be reduced. If it would have prevented his injuries altogether, they should be reduced by 25 per cent. If the presence of the helmet on his head would have caused a less severe degree of injury, then the damages ought to be reduced by 15 per cent’107. However, the other two judges, Glidewell and May LJJ, had come to a view that there should be a reduction of 10 per cent in this case, in that ‘the degree of blameworthiness of a plaintiff, who puts on a crash helmet but fails to fasten it properly or at all, is less than that of one who does not put on his helmet at all’108.
It would therefore seem that the Froom v Butcher triple yardstick is the critical test for helmet cases, following the elucidation in O’Connell v Jackson before protective headgear was made mandatory for motorcyclists, and Capps v Miller after the compulsion. Of course not all the factors are the same: motorcyclists travel at far greater speeds, the cycle helmet is a relatively flimsy cover compared to the all-round motorcycle helmet, and the fact that bicycles, mopeds and motorcycles have the same number of wheels is not necessarily a reason for the same rules to apply. However, there are many very familiar matters in the cases. For example, in Owens v Brimmell, a first instance decision in Cardiff in 1977, Tasker Watkins J had to deal with a passenger, not wearing a seat belt, driven by someone he knew to have drunk nine pints of beer. The evidence was not entirely clear whether injuries would have been reduced by wearing a seat belt, so there was no reduction on that account, but having regard to the inebriation, there was ‘widespread and weighty authority abroad for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver’s capacity to drive properly and safely’109. The judge therefore reduced damages by 20 per cent and there was no appeal. In another drink motorcycling case, the Court of Appeal had to review a finding of 100 per cent contributory negligence, which Beldam LJ found to be ‘logically unsupportable’; however, the court upheld the decision of Judge Fallon that a pillion rider who had spent the evening drinking with a motorcyclist, knowing him to be unlicensed and uninsured, and who also encouraged him to go faster and behave ‘in a reckless, irresponsible and idiotic way’, weaving on a major road, was engaged on a joint illegal enterprise. Although as we have see volenti is no longer available as a defence on the roads, this was judged to be such reprehensible behaviour as to be within the maxim ex turpi causa non oritur actio (no right of action arises from a base cause)110. Beldam LJ indicated that if he had had to assess contributory negligence, he would have adjudged this to be 50 per cent111. In an earlier case on contributory negligence, Dawrant v Nutt112 Stable J had to deal with a motor-cycle combination, driven by the plaintiff’s husband with the plaintiff as passenger, which collided at night with the defendant’s motor car, injuring the plaintiff and killing her husband. Before the accident occurred the front lights of the motor-cycle, to the knowledge of the plaintiff and her husband, had failed. The judgment was that both the husband and the defendant were equally to blame, so damages were reduced by a half. Stable J made the point that ‘I have come to the conclusion that, in relation to the highway, it does not matter whether one is in a motor car or a dog-cart, whether one is on a bicycle or whether one is a pedestrian. Whether one is a passenger or a driver, one owes the same duty to other users of the highway to take reasonable care of oneself.’113
66 See the American Law Institute Restatement of the Law of Torts, where it is stated that a plaintiff’s contributory negligence may consist in an intentional and unreasonable exposure of himself to danger created by the defendant’s negligence, of which danger the plaintiff knows or has reason to know; American Law Institute, Restatement of the Law, Second, Torts (1965) vol 2, s 466.
67 Section 1 (1) Law Reform (Contributory Negligence) Act 1945.
69 per Ellenborough CJ in Butterfield v Forrester (1809) 11 East 60. See generally Glanville Williams, Joint Torts and Contributory Negligence (London: Stevens, 1951); the sub-title denotes it as a ‘study of concurrent fault’.
70 ‘The maxim cannot be taken literally, and like other Latin maxims is apt to mislead. It represents the selfevident axiom that one who consents to injury cannot be heard to complain of it thereafter’; Clerk & Lindsell Torts (London: Sweet & Maxwell, 16th edition 1989) 1-159.
71 That case was in the discrete area of Occupiers’ Liability, which preserves a volenti defence for lawful visitors in section 2(5) OLA 1957, that ‘The common duty of care does not impose upon an occupier any obligation willingly accepted as his by the visitor’. See also Tomlinson v Congleton BC  3 All ER 1122,  1 AC 46 where the House of Lords dismissed a claim from a claimant who had dived into a lake in a country park, and was held to be a trespasser to whom no duty of care was owed under the OLA 1984, but see the dissenting speech of Lord Scott of Foscote that Mr Tomlinson was still a lawful visitor but that volenti applied.
72 Ratcliff v McConnell  1 WLR 670. Lord Hoffmann indicates approval for Ratcliff v McConnell in Tomlinson v Congleton BC, although he makes an important distinction: Mr Tomlinson’s ‘dive’ off the beach at Congleton was a ‘relatively minor act of carelessness. It came nowhere near the stupidity of Luke Ratcliff,’ at 1140.
73 See for some interesting observations on helmets and US sports cases, Stephen D. Sugarman, ‘Assumption of Risk’, (The Monsanto Lecture), 31 Valparaiso University Law Review 833 (1997).
74 Nettleship v Weston  2 QB 691,  3 All ER 581,  3 WLR 370,  RTR 425.
75  2 QB 6,  3 All ER 801,  2 WLR 195.
76 Imperial Chemical Industries Ltd v Shatwell  AC 656,  2 All ER 999,  3 WLR 329.When asked why he did not wait 10 minutes for further wire to be brought by the assistant, George Shatwell said his ‘only excuse was that he could not be bothered to wait’; per Lord Reid.
77 O’Reilly v National Rail and Tramway Applicances  1 All ER 499, although the case actually turned on the related issue of vicarious liability, with Nield J holding that the claimant was on a ‘frolic of his own’ outside the course of employment for vicarious liability.
78 Munro v Porthkerry Park Holiday Estates Lt, The Times (9 March 1984).
79 420 F. Sup 300 (1976), affirmed 594 F. 2d 1230 (1979).
80  1 All ER 59,  1 KB 509, 108 LJKB 255, 160 LT 433,
81 See also the note by Lord Asquith in the Law Quarterly Review for July, 1953, vol. 69, at p. 317, which dealt with criticisms, which ‘were to the effect that even if the volenti doctrine did not apply, there was here a cast iron defence on the ground of contributory negligence. I have since had the pleadings and my notes exhumed, and they very clearly confirm my recollection that contributory negligence was not pleaded. Not merely so, but my notes show that I encouraged counsel for the defence to ask for leave to amend by adding this plea, but he would not be drawn: why, I have no idea.’
82 Now section 149 RTA 1988.
83 See for a classic instance the 80 per cent reduction of damages to a widow approved by the House of Lords, for disobeying an order although under the imperative of ‘piece rate’; Stapley v Gypsum Mines,  AC 663,  2 All ER 478,  3 WLR 279, (100 LQR 629).
84 There seem to be many cultural factors: according to research, men are the worst offenders at failing to strap in, as 15 per cent of them fail to use a seat belt; drivers in the 17 to 29 age group are the least likely to strap themselves in. Kevin Delaney, road safety manager at the RAC Foundation, hypothesises that it is a matter of image: ‘because it is not seen to be cool’; Evening Standard (30 August 2002).
85 Evening Standard (7 February 2003).
86  RTR 221. A similar finding in Smith v Blackburn  RTR 533, where O’Connor J found that the injuries would have been just the same, even if they had been wearing seat belts, but said that, even if a seat belt would have prevented some injury, he would ‘unhesitatingly have held that failure to wear seat belts did not amount to contributory negligence’. Other instances where a seat belt would not causally have made a difference, but where the judge postulated a reduction for contributory negligence if it had, were Freeborn v Thomas  RTR 16 (Sir George Baker P, ‘not be more than ten per cent’) and Froom v Butcher  3 All ER 517,  1 WLR 1297 (Nield J, 20 per cent).
87 Nield J at first instance in Froom v Butcher; see also Geier v Kujawa  1 Lloyd’s Rep 264 (German female passenger who had never before seen seat belts); Lertora v Finzi  RTR 161 (Judge Edgar Fay held that failure to wear a seat belt could be contributory negligence, but it had not been established in that case, and, in any event, that it would not have saved the injuries); Chapman v Ward  RTR 7 (Stocker J found that some of her injuries would have been reduced if she had worn a seat belt, but not guilty of contributory negligence, and no reduction); James v Parsons  RTR 20 (Kilner Brown J found the passenger’s facial injuries would have been prevented when he was flung from a sports car but ‘neither of these young men gave seat belts a single thought’, so no contributory negligence). In Timms v Biernacki (20th March 1975, unreported, Phillips J thought that failure to wear a seat belt was not contributory negligence).
88 Toperoff v Mor  RTR 419 (flung out of car, 25 per cent); Pasternack v Poulton  2 All ER 74,  1 WLR 476 (Kenneth Jones J held that if the plaintiff had worn a seat belt she would have been saved from her serious injuries, so reduced damages by 5 per cent); Parnell v Shields  RTR 414 (driver of a van thrown out and killed, would have been saved if he had worn a seat belt, Wien J reduced the damages to the widow by 20 per cent); McGee v Francis Shaw & Co Ltd  RTR 409 (passenger of ample girth and found seat belt ‘uncomfortable’, would have been saved if he had worn the seat belt, Kilner Brown J reduced his damages by fully one-third; Drage v Sith  RTR 1 (Judge Stabb held plaintiff might not have been injured at all if she had worn a seat belt, deduction of 15 per cent).
89 At 525.
91 Ibid. Judges do not always seem to have followed Lord Denning’s tariff approach slavishly, nor the settlement process either; see for example Hibbert v Money (QBD transcript 1980 H No 4412, 18 January 1984) where Mann J notes the agreed discount for a failure to wear a seat belt of 5 per cent, but indicated that ‘Having regard to the severity of the injuries caused by catching her face on the windscreen, which could in my judgment have been prevented by the wearing of a belt, I would have assessed the contributory percentage against Miss Patten at 20 per cent.’
92 Hansard, House of Commons (15 November 1974), quoted by Lord Denning at 526.
93 Note section 37(5) of the Road Traffic 1972.
94 Vaughan v Menlove (1837) 3 Bing NC 468, [1935-42] All ER Rep 156, Glasgow Corporation v Muir  2 All ER 44 at 48,  AC 448 at 457 per Lord Macmillan.
95 At 528.
96  1 QB 270,  3 All ER 129,  3 WLR 463, 2 Lloyd’s Rep 354,  RTR 51.
97 See section 16 Road Traffic Act 1988. s. 16(2) indicates that this shall not apply to any follower of the Sikh religion while he is wearing a turban. See also The Motor Cycle (Protective Helmets) Regulations 1998 (S.I. 1998 No. 1807), and generally Wilkinson’s Road Traffic Offences (London: Sweet & Maxwell, 20th edition 2001 and annual updates). In the USA nearly all 50 states passed laws requiring motorcycle helmets in the mid-1960s, and then in 1976 almost half of the states repealed their laws, resulting in increases from 25 per cent to 40 per cent in motorcycle fatalities; see Insurance Institute for Highway Safety, Status Report, Vol. 37, No. 1, January 12, 2002 for a full discussion of the variables.
98 Hilder v Associated Portland Cement Manufacturers Ltd.  3 All ER 709,  1 WLR 1434, 179 EG 445. Note the judge’s finding of fact at 1436: ‘… having regard to [the plaintiff’s] slow speed and relatively low height off the ground, I am by no means certain that, if he had been wearing a helmet, his skull would not have been fractured. Accordingly, if the claim succeeds, it succeeds in full.’ The finding in O’Connell v Jackson was of course to the opposite effect.
99 ‘Q Did you not think about getting a crash helmet? A I did do, yes.
‘Q Why did you not get one? A I don’t know really, I aimed to get one.
‘Q You knew that you ought to wear a helmet? A Yes.
‘Q You knew that the Highway Code says you should wear one, did you not? A I didn’t know that.
100 Rules 180-200, current Highway Code approved by Parliament in June 1998, issued in February 1999.
101 Rule 45.
102 Ibid. See the comment in Sunday Times (21 February 1999): ‘It will warn motorists that they must stay clear of bicycles. Conversely, cyclists will be warned to wear bright clothing and protective helmets and install good lighting.’
103 Rule 46. Bicycles must also be fitted with amber pedal reflectors, when manufactured after1985. These are all of course mandatory legal requirements under the Road Vehicles Lighting Regulations (S.I. No. 1796) 1989.
104  2 All ER 333,  1 WLR 839,  RTR 312. Rule 67 for motorcyclists also points the contrast when it states that ‘On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet.
105 regulation 4 of the Motor Cycles (Protective Helmets) Regulations 1980. reg 4(3) defines protective headgear’ as headgear which is securely fastened to the head of the wearer by means of the straps provided for that purpose. Rule 67 of the Highway Code also states for motorcyclists that ‘Helmets MUST comply with the Regulations and they MUST be fastened securely’.
106 At 339.
107 At 341.
108 Per Glidewell LJ at 343. May LJ agreed with 10 per cent, on the basis that a judge would ‘merely give the best consideration that I can to the facts and circumstances of the instant case’.
109  3 All ER 765,  QB 859,  2 WLR 943,  RTR 82, at 771.
110 ‘this is a maxim of uncertain ambit’; Clerk & Lindsell on Torts (London: Sweet & Maxwell, 16th edition 1989): an example given that the ‘mere fact that the plaintiff was committing a crime at the time of his injury does not deprive him of an action’ is ‘dropping a brick on the head of a cyclist riding without lights or on the wrong side of the road’; 1-138.
111 At 357.
112  3 All ER 681,  1 WLR 253.
113  3 All ER 681 at 682,  1 WLR 253 at 255.