If running the contributory negligence argument as a Defendant, support may be taken from Royal Mail who since October 2003 have required their 37,000 cycling postmen and women to wear helmets. This move was called for following the deaths of 5 cycling post workers in the 3 years up to 2001. Research into the issue was commissioned from the Transport Research Laboratory. Although the report was never published, some of the conclusions are published on the Communication Workers Union website. The primary conclusion appears to be “For most of the accidents which result in more serious head injuries, it is concluded that wearing of a cycle helmet would have a beneficial effect. Furthermore, cycle helmets have the potential for preventing fatal head injury. Hence, the wearing of cycle helmets by Postal Workers during their normal Delivery duties may be appropriate” It also notes that “A good Cycle Helmet would be expected to prevent fatal head injuries in accidents in which a Cyclist, travelling at speed of up to 15 mph falls from his/her bicycle and impacts against a road surface or kerb”

However, some of the research studies upon which the TRL conclusions are based are strongly criticised by the “non-helmet” lobby, most cogently on the extensive website www.cyclehelmets.org. Further, assessments of risk to cyclists are often based on risk per kilometre of travel. Given the short distances cyclists tend to travel, this assessment can provide a distorted result. If accidents over time spent carrying out the activity are examined, cyclists are no more likely to suffer injury than drivers, and rather less likely than pedestrians ⁽¹⁾. When the fact that the Health & Safety Executive does not require its employees to wear cycle helmets is thrown into the mix, plus the fact that a cycle helmet is not personal protective equipment within the PPE Regulations ⁽²⁾, perhaps the litigator is tempted to throw his or her hands into the air and mutter the words “Disraeli, lies, statistics…..”

What should the litigator do when faced with a claim involving a cyclist not wearing a cycle helmet? Firstly the issue of causation of harm is all important. What was the injury suffered? Even the reports supporting helmet use in preventing head and facial injury refer only to the prevention of upper and mid-facial injury – what about the chin ⁽³⁾?

The current standard for cycle helmets, the European EN 1078, is meant to provide protection from a fatal head injury when the cyclist falls onto a flat surface at no more than 15 mph. Therefore, as soon as an accident involves a cyclist travelling at a greater speed than 15mph at the time of impact, or colliding with something other than a flat surface (be it a moving vehicle or a lamp post) then it may be that even a correctly worn and correctly adjusted cycle helmet can provide limited protection. The circumstances of the accident are vital for a proper consideration of causation. The actions of any other party to the accident must also be borne in mind.

Next, the nature of the injury needs to be considered. As noted, a flat impact is the type of impact against which cycle helmets are measured. Many severe head injuries are caused by rotational injury and it may be that helmets not only provide little protection for a head which is being rotated, the additional weight on the head may make things worse. Some evidence also suggests that there is an increase in number of head impacts amongst those wearing helmets ⁽⁴⁾, perhaps because the head surface area is enlarged when the helmet is added.

Careful analysis of the facts and, quite possibly, expert evidence from a cycle helmet specialist and/or a medical expert will be required to consider the issues of causation involving cyclist and helmet. Froom v Butcher did not advocate a set percentage reduction to reflect the contributory negligence of the non-seatbelt wearing passenger. Litigants would do well to remember this. Causation must always be shown and for a 25% reduction to be appropriate must show that injury would have been avoided altogether. In the case of Froom the reduction was 20%. Consideration was given to the extent injury would have been prevented. Medical evidence was required.

Further, the Froom argument was predicated on an acceptance that passengers ought to be wearing a seat belt - that it was negligent not to do so. Cyclists have powerful arguments to support a challenge to this initial assumption.

The problems arise because so few cyclists have insurance and so have limited access to legal advice. Many of the claims are relatively low in overall value. The pressure is therefore on to achieve a swift settlement at a low cost – the only chance of keeping the litigation cost effective. Such constraints inevitably lead to a measure of rough justice. A reduction in liability to reflect litigation risk and failure to wear a cycle helmet must often be taken to prevent the lengthy costly research required or the instruction of experts. The views of the experts are polarised. Studies support and condemn cycle helmets. Such conflicts lead to lengthy and expensive litigation. Each settlement reached in a low level case is then fed into the insurance industry statistics and over time an “industry standard” reduction arises. It is only in the very largest cases that a challenge to this standard can be raised. Yet it is these very cases when the argument in favour of wearing a cycle helmet is likely to be weakest.

Reported cases dealing with cycle helmets are few and far between. Drinkall v Woodhall [2003] EWCA Civ 1547 while dealing with procedure, arose from an issue of whether 20% or higher was an appropriate reduction for contributory negligence against a then 14 year old girl injured while cycling and not wearing a cycle helmet. It should, however, be noted that the Judgment only refers to an 80:20 liability split and the Defendant’s wish to argue for a higher degree of contributory negligence because the claimant had not been wearing a helmet (paragraph 3). It is not clear if the 20% reduction originally agreed was on the basis of the failure to wear a helmet or for other reasons. No further facts of the accident are given. One should therefore be wary of drawing any conclusions on likely awards of contributory negligence from this case.

So, should you or shouldn’t you? Wearing a cycle helmet must remain a matter of personal choice. As a litigator, however, you should not assume that failure to wear a helmet will carry with it a finding of contributory negligence.

Emily Formby

Hardwicke Building

Sue Bence

Leigh Day & Co

References

1. Assessing the Actual Risks faced by cyclists. Malcolm Wardlow BSc MBA; Traffic & Engineering Control December 2002 p352 - 356

2. Regulation 3(2)(d) of Personal Protective Equipment at Work Regulation 1992

3. Helmets for preventing head & facial injuries in bicyclists – Thompson DC, Rivara FP, Thompson R; Cochrane Database of Systematic Reviews, The Cochrane Library, Issue 4, 2002

4. Bicyclists, helmets and head injuries: a rider-based study of helmet use and effectiveness Wasserman RC, Waller JA, Monty MJ, Emery AB, Robinson DR 1988. American Journal of Public Health: 1988 Sep;78(9):1220-1