Conclusion

The simplistic mantra that absence of a cycle helmet equals culpability in the civil courts is wholly unacceptable. And yet this unjust formula appears to be in the mindset, and computer system, of motor vehicle insurers when dealing with a claim from an injured cyclist. There needs to be a much more sophisticated appreciation both of the scientific evidence on cycle helmets and of the law on contributory negligence. Froom v Butcher was a critical decision on seat belts before they were mandatory, so that is a useful starting point. However, it has never been a proposition for the contention that 25 per cent of damages should be deducted, but indicates three possibilities of 25 per cent, 15 per cent, and zero deduction. Together with O’Connell v Jackson on motor cycle helmets before they were mandatory, and Capps v Miller after they became mandatory, it is possible to see the basic features of the law on contributory negligence was extended to helmets. Even here the parallels are not entirely precise, but if anything lower percentages may be in order for the distinctions in speed, licensing and insurance arrangements.

What is clear is that there are many cycle injuries which cannot possibly be ascribed to the use or non-use of a cycle helmet. These are likely to be the vast majority coming before the civil courts. There should therefore be no deduction for any contributory negligence, as no causal link is possible. Perhaps 10 per cent or so of cycle injuries are in the classic ‘swallow dive over the handlebars’ category where a helmet may possibly diminish or save injury to the crown of the head. But the scientific research shows that there are many other factors here, and a blow to the face or the side of the head will not be protected by current headgear. In those circumstances a court might possibly consider the 10 to 15 per cent banding, but it would be extremely difficult to think of any circumstance justifying Lord Denning’s upper band of 25 per cent where ‘damage would have been prevented altogether if a [cycle helmet] had been worn.’114

fn114. Froom v Butcher [1975] 3 All ER 520, at 528.

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