Smith v Finch Reasoning

The Smith v Finch reasoning

The kernel of Griffith Williams J’s Judgment in respect of fault is expressed thus:

“In my judgment the observations of Lord Denning MR in Froom and others v.Butcher above should apply to the wearing of helmets by cyclists. It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be “a sensible thing to do” and so, subject to issues of causation, any injury sustained may be the cyclist’s own fault and “he has only himself to thank for the consequences”.”

The contrary arguments on fault

(a) The virtues of cycling

The underlying premise to most of what follows is that cycling is a good thing. The public policy interest in encouraging and promoting cycling is widely recognised and the subject of much public expenditure. Cycling increases levels of fitness and longevity and decreases obesity, healthcare costs, traffic congestion, pollution and the burning of fossil fuels.

(b) The Efficacy of Cycle Helmets

In contrast to the position with seat-belts and motorcycle helmets, the evidence as to the efficacy of helmets is hugely controversial. Cycle helmets are not designed to protect the wearer from impact with a moving motor vehicle. There has to be a compromise between protection and usability. The ‘current regulations’ referred to in the Highway Code are BS EN 1078:1997 (British and European Standards are now the same). The requirements involve a freefall drop from 1.5 metres onto a flat and a kerb shaped anvil at an impact speed of 5.42 m/s (12.1 mph). Such a helmet will comply with the advice in the Highway Code so there can be no realistic argument that a more robust helmet should be worn.

Griffith Williams J in Smith v Finch found that the impact speed exceeded 12.3 mph and so he could not be satisfied that a helmet would have made any difference. This is a common theme in that no court has yet found that a helmet would have made a difference in any particular case. This is not surprising since the high value claims worth litigating are likely to involve serious injury following high impact. The type of incident most likely to give a Defendant an argument on causative contributory negligence might be the car door opening into the path of a slow moving cyclist who suffers a scalp laceration – hardly worth litigating. The lack of protection in the type of incident which results in the most serious injuries must also be relevant to the question whether the cyclist is at fault in not choosing to wear a helmet.

Published literature in this field needs to be treated with extreme caution. Much of the literature simply reviews other literature. There is a need to be cautious about possible author bias and there is a clear problem in hospital based studies with finding a suitable control group; those who choose to wear helmets may differ in all sorts of ways from those who do not choose to wear helmets. Mandating the use of cycle helmets in Australia did not reduce the rate of head injuries sustained by cyclists. This may be because helmets do not work and/or because mandating helmets reduced the number of cyclists and/or because of risk compensation. There is further said to be no correlation in this country between rates of helmet use and rates of head injury. Yet the BMA states a belief that cycle helmets do reduce the risk of head injury. The literature has been reviewed twice in the last decade at the behest of the government.

The first such report was commissioned by the Department for Transport in November 2002: “Bicycle Helmets: Review of effectiveness (No 30)” (now archived). This report accepted that cycle helmets reduced the risk of head injury but formed no conclusions on the effects that promoting cycle helmet use would have on levels of cycling or on behaviour. Like the BMA this paper accepted the oft-criticised Thompson papers as demonstrating lower head injury rates among helmet users.

The Department for Transport commissioned a further report in 2009 from the Transport Research Laboratory “The Potential for Cycle Helmets to Prevent Injury: A Review of the Evidence”. This time the findings were rather less certain. The report accepts that population studies do not show the benefits said to be apparent from hospital admission studies (which sought to compare injuries to helmeted and non-helmeted cyclists admitted to hospitals). It concluded that the effectiveness of helmets could not be established from a literature review alone. The report’s authors then considered the descriptions of head injury in police reports relating to fatalities and in hospital admission descriptions of head injuries and formed a biomechanical assessment of the proportion of these injuries that might have been prevented by a helmet.

From this, the TRL report concluded that helmets ‘would be expected to be effective’ in a range of incident conditions particularly those that do not involve a collision with another vehicle or when another vehicle glances the cyclist tipping them over. They further concluded that helmets ‘would be expected to be particularly effective’ for children as their heads are less than 1.5 metres from the ground (the relevant standard). The report did not express a view on the effects of promoting helmets on cycling numbers or on risk compensation.

The efficacy of a cycle helmet in reducing the risks of injury is not as clear cut as that of a seatbelt or motorcycle helmet. The individual should be free to decide what he makes of this. There is no authority for a general proposition that a road user who does not comply with advice in the Highway Code is automatically at fault (for example, reflective clothing or accessories advised for cyclists and pedestrians).

The Government advice in the 1970s in relation to seat-belt use was much stronger than that currently given to cyclists in relation to helmets. The 1970s Highway Code stated “Fit seats belts in your car and make sure they are always used.”. By July 1976 when Froom v Butcher reached the Court of Appeal, legislation was in prospect to make seat-belt use compulsory. Lord Denning referred to the delayed legislation and the Court of Appeal in Stanton v Collinson [2010] EWCA Civ 81referred to ‘the anticipation of modern public attitudes which underlay Froom v Butcher.’ There is a clear implication that the degree of fault in (criminally) not wearing a seat-belt is no greater now than it was in 1976. It would be quite wrong to anticipate any future public attitudes mandating cycle helmet use.

Read next section ‘The Safety of Cycling’

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