Cycle helmets and contributory negligence - a case review of Smith v. Finch, Jorgensen v. Moore
Smith v. Finch
This High Court case concerned the liability for the serious injuries suffered by Robert Smith, a cyclist, following a collision with a motorbike ridden by Michael Finch.
The judge ruled that Finch was liable for the injuries sustained by Smith. He also ruled against an award of “contributory negligence” against Smith, as claimed by Finch, (which could have led to a reduction in the compensation award to Smith by up to 15%) on the grounds that Smith had not been wearing a cycle helmet acknowledging that a helmet worn by Smith could not have been expected to prevent the particular injuries he suffered.
However in making this ruling, Mr Justice Griffith also commented that cyclists who are not wearing helmets when they suffer head injuries should in principle be held liable for those injuries if it can be shown (on the balance of probabilities) that a helmet would have prevented them.
These comments were “obiter dicta”, i.e. they were made in passing to support his conclusions, rather than themselves being findings on a contested point of fact or law. Nonetheless the Cyclists’ Defence Fund is concerned that, despite being based neither on evidence of the effectiveness (or otherwise) of cycle helmets, they may be legally prejudicial against cyclists. In all previous cases where a “contributory negligence” claim has been brought against a cyclist who was not wearing a helmet when head-injuries occured, the courts have concluded that a helmet would not have prevented the injuries suffered.
More information on the arguments concerning helmets are on the websites of the Bicycle Hemmet Research Foundation (www.cyclehelmets.org) and on the CTC website (www.ctc.org.uk/DesktopDefault.aspx?TabID=4688).
Mr Justice Griffith Williams ruled on an ‘injury by dangerous driving’ case brought by Robert Smith (the claimant), who was cycling in Brightlingsea, Essex in 2005 when a motorcycle ridden by Michael Finch (the defendant) collided with his bicycle. As a consequence, Smith sustained serious brain injuries. Smith sued Finch for ‘injury by dangerous driving’. Finch counter sued Smith for ‘contributory negligence’, claiming that the compensation for Finch’s negligence should have been reduced on the basis that Smith was also partly to blame for his injuries, as he was not wearing a helmet at the time of the incident.
The judge accepted Smith’s case that he was close to the centre of the road preparing to turn right when the motorcyclist, travelling at excessive speed in the same direction, tried to overtake him on the offside. Smith’s head hit the ground at more than 12mph, the speed at which cycling helmets cease to be effective as a form of head protection.
However, when ruling on the case Justice Williams expressed the view that not wearing a helmet could put a cyclist at fault and make them partly responsible for their own brain damage. “There can be no doubt that the failure to wear a helmet may expose the cyclist to risk of greater injury,” he stated. Subject to limitations, “any injury sustained may be the cyclist’s own fault.” Although this ruling is not open to challenge, Paul Kitson (a partner at RJW Solicitors) believes the judge’s remarks will, in practice, have little if any effect on the legal position. His words are probably no more than an ‘obiter dicta’, i.e. comments made in passing, which could in principle influence future cases but are not binding.
Nonetheless CDF is concerned that Mr Justice Griffith Williams has in effect extended a legal principle – that not wearing a seat-belt could amount to ‘contributory negligence’ – to cyclists not wearing helmets. This particular principle is based on a 1976 ruling by Lord Denning in the case of Froom v Butcher, made at a time when seat-belt wearing was widely accepted as a safety mechanism and the Government intended to legislate to make it compulsory. In contrast, cycle helmet wearing rates remain low and the Government has publicly stated that it has no intention to pass such a law. The Judge also referred to the Highway Code’s (non-compulsory) advice that cyclists “should” (i.e. not “MUST”) wear helmets (rule 59).
By establishing the principle of ‘contributory negligence’ in cases involving helmetless cyclists, the ruling could open the door to attempts to reduce damages by insurers. In theory, the ruling could see damages for injuries cut by 15%.
Nevertheless Mr Justice Griffith Williams awarded cyclist Robert Smith full compensation, ruling that his particular injuries would not have been prevented by a helmet, as the impact speed was above 12mph and the blow was to the back of Smith’s head, an area not necessarily protected by a helmet.
Unfortunately these ‘obiter dicta’ comments may have set the tone for subsequent cases. Since the Smith v. Finch case there has been a further case relating to cyclists and helmet usage – albeit in the criminal courts – whose outcome appears to reflect Justice Williams’ comments. In the case of Jorgensen v. Moore, the claimant Jorgensen died from the injuries he sustained from the crash, yet the judge passed a suspended prison sentence on the defendant and stated that the fact that the cyclist was not wearing a helmet was a “mitigating factor”.
Jorgensen v. Moore
Denis Moore, 50 admitted causing death by dangerous driving when he collided with cyclist James Jorgensen, 55, in September 2008 on a roundabout in Seaham, County Durham. Jorgensen died eight days later of severe head injuries. Although the court was told that Moore was only driving at around 20mph, Moore’s solicitor acknowledged that his client had suffered a “momentary lapse of concentration”.
At Durham Crown Court last Friday, Judge Richard Lowden gave Moore a 24-week suspended prison sentence. He said the fact that Jorgensen had not been wearing a helmet was a “mitigating factor” and Moore’s sentence was reduced accordingly. The judge reached this decision without hearing any evidence about the effectiveness of helmets, or whether a helmet would have made any difference to Jorgensen’s injuries. The judge added: “No sentence I can pass can equate or is intended to equate to the worth of Mr Jorgensen’s life.”
Moore received 24 weeks in jail, suspended for 12 months, a three month electronic tagging order, and a two year driving ban, after which he must sit an extended test.
The Cyclists’s Defence Fund is concerned that the judge appears to have mis-applied the sentencing guidelines on bad driving offences involving death (see www.sentencing-guidelines.gov.uk/docs/causing_death_by_driving_definitiv…). These say that mitigating factors should relate to the commission of the offence, not its outcome. No evidence was presented to the court in this case to suggest that Mr Jorgenson’s lack of a helmet contributed to the commission of the offence of “causing death by dangerous driving”. (e.g. that the lack of a helmet was contributory factor to the causation of the “causing death” element of the offence).