Drinkall v Whitwood and the other recent cycle helmet cases

Kerry Drinkall’s case is a procedural skirmish based on the Civil Procedure Rules, which stipulate that a settlement involving a minor must be made ‘with the approval of the court’16. Cycling home from school in 1998, aged 14, the claimant was in collision with a motor vehicle driven by the defendant, Dean Whitwood. She was left with some permanent brain damage. Before proceedings were issued, the claimant’s solicitors, acting for her mother as litigation friend, made an offer to settle the case on the basis of a 20 per cent reduction for contributory negligence. It is therefore very important to note that these solicitors, acting on behalf of the claimant, in common with many others, routinely proposed a discount for a failure to wear a cycle helmet, in this case a figure of 20 per cent. While it is not possible to have a full survey of all such non-litigated cases in the settlement process, it would appear that defendants and their insurers respond, as they did in thiscase, with a semi-automatic deduction of 25 per cent. The reason for litigation here was that claimant’s offer in Drinkall v Whitwood was accepted immediately by the defendant’s insurers in April 2000, but 18 months later, just 22 days short of the claimant attaining her age of majority on her 18th birthday, the defendant withdrew from the settlement, with the express aim, as Simon Brown LJ noted, of ‘contending for a higher degree of contributory negligence because the claimant had not been wearing a cyclist’s helmet’17. The issue as to whether there had been a valid agreement was then tried as a preliminary issue, so the cycle helmet matter forms the background context, but is not part of the decision. Judge Glentworth decided that the 80:20 agreement was valid, and that what the defendant was seeking to do was to ‘use the protection given to minors to resile from an agreement’. However, the Court of Appeal looked at an earlier decision of the House of Lords in Dietz v Lennig Chemicals Ltd18 which was on materially identical rules19, and held that this precedent was decisive on Drinkall v Whitwood. Simon Brown LJ commented that, ‘regrettable though it might seem, the defendants here were entitled to renege on their agreement as they did, for good reason or none.’20 The ‘good reason’ was of course an attempt to go up above the 20 per cent reduction already agreed for the absence of a cycle helmet.

Very few tort cases are litigated, so that the settlement process is determinative of 99 per cent of personal injury cases. Much in the twilight world of settlement negotiation is unclear, but it would appear that the defendant’s insurers, AGF Limited, came to a view that a discount of 20 per cent was too low for failure to wear a cycle helmet and countermanded their solicitors21. Research suggests that, routinely, there has been a tendency to reduce damages by a quarter when a cyclist was not wearing a helmet. It is suggested that this cannot be right or just, as so much depends on the circumstances. However, in analysing the settlement process, and cases in coroner’s courts, it would appear that cycle helmet wear is also becoming a kind of preliminary legal litmus test in cycle compensation cases. Such a view wholly ignores the critical issue of causation. For example, in Greater London, over 50 per cent of cycling fatalities are caused by large vehicles turning left at junctions; no cycle helmet could possibly assist when being run over by a juggernaut failing to see a cyclist on the inside22. An automated response that the absence of a cycle helmet might be a causative factor ignores reality on the roads.

It would appear that many personal injury lawyers, insurers and coroners are focussing on the peripheral question of helmet wear, rather than examining the cause of the vast majority of accidents involving cyclists – the negligent driving of a motor vehicle. Further research indicates, for example, that Mr Whitworth, aged 21, was sentenced at Scunthorpe Magistrates Court for driving with an illegal tyre, and fined £30, having his licence endorsed with three penalty points in 199823. Without examining the full circumstances of that collision it would not be possible to ascribe sole fault to the vehicle driver on that occasion, but in the vast majority of road collisions world-wide the literature notes that ‘driver error’ is the key component. Drivers can become distracted, fatigued and overstressed, and so can cyclists. But the consequences are often very different. The estimate in countless studies is the ‘90 per cent rule’, in that poor driving habits account for 90 percent of all collisions on the road. Police investigators no longer use the term ‘accident’ in connection with road offences, because the causes are so familiar and are not ‘accidental’. They prefer the word ‘collision’ or perhaps, ‘incident’. It is also clear that ‘crashes’, another somewhat loaded word, are usually the result of a driver taking a decision to break the law, for example by overtaking at a dangerous place such as at a junction or on the brow of a hill, crossing double lines, speeding, jumping red traffic lights, using a mobile phone while driving, and a catalogue of other road traffic offences. Not far from Scunthorpe was the scene of the Selby rail disaster, actually the largest claim for motor negligence ever, where Gary Hart was jailed for five years for causing the deaths of ten people on the London-bound express train in 2001, after falling asleep at the wheel. Mackay J told Hart that because of his arrogance in setting off on a long journey without sleep, he had caused ‘the worst driving-related accident in the UK in recent years’24. Alcohol is another straightforward factor, estimated to be the cause of nearly 2,000 road deaths in Britain every year, or 40 per cent of all road fatalities. 8,000 drivers each month are convicted of drink driving, with increasingly stringent sentencing on drunk drivers25. One notorious case was that of Peter Noble, described by Judge Goldsack as having been on a ‘motorised pub crawl’, who had been seen driving at speeds up to 80mph moments before a fatal accident and then fled the scene after being cut from the wreckage. He had three previous bans for drink driving offences. He showed no remorse in court, initially identified one of his dead passengers as the driver and denied the six charges of causing death by dangerous driving. He also claimed that the amount of alcohol he had drunk had nothing to do with the crash and blamed water on the road for causing his vehicle to skid. Keene LJ indicated in the Court of Appeal that ‘So far as this court can discover, this case involves the highest number of deaths that have arisen from a single piece of dangerous driving … It is difficult realistically, in our judgment, to imagine a worse case.’26 Most cases relate of course to carelessness’ or negligence, equivalent to the tort standard enunciated by the Court of Appeal in Nettleship v Weston27. But there can still be tragic results from momentary inattention, such as the case of Dr. Thomas Munch-Petersen, the UCL lecturer who was sentenced to 90 days imprisonment after a conviction for causing death by dangerous driving, when he leaned over to get a mint from his jacket while overtaking on the M1 at 70mph, and killed three people28. This context of ‘90 per cent driver error’ is therefore the backdrop for the vast majority of injuries on the roads. In any collision with a motor vehicle, it is quite clear that pedestrians and cyclists are susceptible to serious injury. As the Department for Transport points out in their advice note Drive Safe, Cycle Safe in 2003: ‘Cyclists are more vulnerable than motorists – drivers have the major responsibility to take care’. The Department’s latest figures, for 2002, show that 130 pedal cyclists were killed, and 2,320 were seriously injured on the roads in the UK29. But as Mayer Hillman points out: ‘the safest forms of travel are walking and cycling …cycling isn’t dangerous, cyclists are vulnerable’30.

When the civil courts come to deal with any road injuries, the settlement process is greatly more important than the court decision-making. To get to grips with this highly secretive and ‘intuitive’ process is also difficult. The Royal Commission chaired by Lord Pearson estimated from various surveys that 86 per cent of cases are settled without the launch of proceedings, 11 per cent before the case is set down, and 2 per cent at the ‘door of the court’, leaving just 1 per cent to be disposed of by trial31. Many other surveys confirm this general pattern. While the decided cases are the ‘tip of an iceberg’, their findings are fed back into the settlement process, which has become an administrative factory, now moving more to computer systems such as ‘Colossus’ where data input is handled by relatively low-level clerical officers in insurance firms, rather than being analysed by lawyers32. It is here that the ‘quarter deduction’ appears to have become a standard for any claimant not wearing a cycle helmet, and without a considered appellate decision to the contrary, there will continue to be an habitual reduction of damages for failure to wear a helmet. The settlement process of course adjusts occasionally when there is a contested case which brings an issue momentarily into the public arena, but insurance companies are very adept at keeping such issues away from courtrooms, particularly if they feel they have a serious adversary or the circumstances are likely to produce an unfavourable finding from their perspective; they are of course organisations that are in business to make a profit.

Some instances of unreported cases other than Drinkall v Whitwood have also ‘lifted the veil’ on contributory negligence and cycle helmets, and it is only a matter of time before a full pronouncement on this issue. The first unreported case to see the light of day can be seen in the somewhat unusual source of a press release from a set of barristers’ chambers in Liverpool. In Williams v Ashley the insurers abandoned their claim for contributory negligence, for failure to wear a cycle helmet, just moments before trial. Counsel involved included Bill Braithwaite QC, consultant editor of Kemp & Kemp33. A very interesting obiter point is that this particular judge subsequently remarked that ‘it was not surprising that those allegations should be abandoned’, suggesting that had that not been the case, the judge may well have ruled in the cyclist’s favour34. Another very interesting factor was the intervention of the Royal Society for the Prevention of Accidents (RoSPA), who produced a detailed report for the defendants. RoSPA has a policy to recommend that all cyclists wear a helmet, because in their view ‘cycle helmets, when correctly worn, are effective in reducing the risk of receiving major head or brain injuries in an accident’; however, they do also make the countervailing point that ‘The most effective ways of reducing cyclist accidents and casualties are to improve the behaviour of drivers, improve the behaviour of cyclists and to provide safer cycling environments.’35 Brian Williams, the claimant in this case, was seriously injured in 1996, and his case came on for trial of liability in 1999. He had been cycling along a minor country road in North Wales when Ms Ashley drove her car up to a junction, and then drove straight out without stopping. The claimant had no recollection of the accident, and suffered brain damage, but an independent witness disputed the defendant’s denial of careless driving, although coupled with an accusation that the claimant was himself negligent by riding too fast, with his head down, and not looking where he was going. However, the two major allegations of contributory negligence were that the claimant failed to wear a cycle helmet, and failed to wear fluorescent or conspicuous clothing. The claimant’s expert witness, Dr Nigel Mills, formerly chaired the British Standards Institution committee for motorcycle helmets in January 1994, and has been a member of the umbrella committee which oversees all helmet committees. His conclusions are very noteworthy: helmets are less effective when a cyclist hits a vehicle than when they simply hit the road; helmets do not eliminate injury; serious brain injury is quite common when cyclists are hit a glancing blow by a vehicle, as distinct from a direct collision; the site of the impact on the right side of the face would not have been protected by a helmet; and the claimant’s head injury was due to the right side of his face hitting the road, so a helmet would not have reduced his injuries36. The defendant’s 26 page report from RoSPA appeared to support the proposition that in 1996 it was negligent not to wear a helmet when cycling, and that it was also negligent to wear inconspicuous clothing. An offer was made to settle at 80 per cent of full liability, but that was rejected. There was then a further Part 36 offer for 90 per cent, and that too was rejected. Inevitably, many cyclists would be under great pressure to settle on this discount basis, lacking serious legal assistance. However, with just two days to go, the defendant abandoned the allegation of failure to wear conspicuous clothing, and with five minutes to go, the defendant abandoned the
helmet issue.

Two further cases, both fought by the Cyclists’ Touring Club (CTC), attracted massive campaigns against an automatic deduction for contributory negligence when not wearing a cycle helmet. The CTC, founded in 1878 and the UK’s national cycling organisation, provides legal advice for its members. The first case forced Provident Insurance to retract a claim of contributory negligence against Darren Coombs in 2001. Aged 8 at the time he was run into by a car on the Isle of Wight in 1997, and the defendants initially suggested that he should have been both wearing a helmet and should not have been allowed out unsupervised. Judge Thompson QC, concluded: ‘There was no degree of contributory negligence to attach to the young cyclist.’37 We also know some of the details of this matter, as the case went to the Court of Appeal, but on the grounds that the judge should not have accepted the testimony of an eyewitness, Mrs Goudie, who was standing a bus stop and whose evidence was that the driver strayed into a bus lay-by where her car struck the cyclist; this seemed at variance with the ‘dumb evidence’ of the police investigators, who formed the view that the cyclist was ‘wholly to blame’, but the judge had not allowed them to give expert evidence at the trial. It was clear that the cyclist’s head had struck and shattered the windscreen, but opinions varied as to how this had happened, with Tuckey LJ suggesting about the driver that it was ‘possible that she was distracted by one of her children, although that was pure speculation’. However, the Court of Appeal affirmed the judge’s findings, saying that they had no reason to overturn his view that ‘Mrs Goudie was a good, impressive and reliable witness who had a grandstand view of the accident and who had given a consistent account of what she saw without reconstruction or invention’38.

This was followed in 2002 by the case of a Walsall cyclist, Alan Millett, who suffered serious head injuries when he was hit by a car on a roundabout. The insurers, NIG (the National Insurance and Guarantee Corporation), proposed a reduction for contributory negligence of 15 per cent for the sole reason that Mr Millett was not wearing a cycle helmet, but later backed down in the face of a massive campaign of letter and emails from CTC members39. In 2003 the leading firm of personal injury experts, Irwin Mitchell, were able to make a structured settlement of £5 million for Richard Harrison, who was hit by a car near his home at Hexham in 1999, after the Royal Sun Alliance dropped their attempt to deduct for contributory negligence as he was ‘riding bareheaded’. His father was quoted as saying that this had been ‘a long, exhausting process’40. Many injuries to cyclists could not under any circumstances be ascribed as remotely affected by the wearing or absence of a cycle helmet. This is the central issue in tort cases of causation. For example, Stephen Brown died in 2004 while cycling home from work, after being hit from the rear by a man who had been driving for 12 years without a licence, MoT certificate or car insurance. This was despite, according to the coroner, wearing a fluorescent jacket and the day being one of ‘perfect’ driving conditions. Mr Brown was not wearing a helmet, but this would obviously have made no difference at all41. Similarly the Court of Appeal Criminal Division has had to deal recently with a coach driver who had ‘little or no sight in his right eye and significant impairment of sight in his left eye …and failed to see a cyclist’; Judge LJ commented significantly that ‘The cyclist had been riding appropriately with yellow jacket, helmet and lights’, but although the court felt the sentence was unduly lenient for causing death by dangerous driving when sentenced to two years’ imprisonment suspended for two years, they exercised their discretion not to interfere with it42.

As with many fatal accident cases, the inquest is an important preliminary step in both the civil and the criminal spheres. The coroners’ comments as to a cause of death can play a vital role in the settlement process, often precipitating an offer which disposes of the case. However, the coroner’s duties are fairly limited, as they are essentially determining whether there should be a postmortem, and there have been many criticisms of their role43. Given some of the sketchy information they necessarily have to go on, coroners are not always perhaps actually in a serious position to pronounce on the causality issue of cycle helmets; this does not necessarily stop them commenting. The reporting of such cases is not very systematic, but for example a coroner for Exeter and Greater Devon said in 2000, when Liudmila Dennis fell off her bicycle after clipping the wheel of a fellow cyclist on a steep hill: ‘I know she was not wearing a cycle helmet, none of you were. Whether if she had that would have saved her, I don’t know, but it is important to wear a helmet.’44 Similarly the county coroner for Warwickshire recording a verdict of accidental death on Stephanie Warren, aged 12, cycling home from school urged all cyclists to wear helmets to avoid head injuries: ‘The head is very vulnerable, and I have unfortunately had several cases where quite a small impact has led to death or serious injury. I have absolutely no doubt that all cyclists should wear a helmet.’45 A trawl through newspaper accounts on cases of motorists accused of causing the death of cyclists by dangerous driving sees a constant reference to whether or not they were wearing a helmet: for example, a taxi driver sentenced for ‘road rage … particularly dangerous to do when the deceased was without a helmet,’46 a white van driver sentenced for killing a banker who was ‘cautiously’ approaching the junction at the bottom of his road and ‘despite wearing a helmet,’47 and a drunken driver who ran over three cyclists despite, as the prosecutor remarked, ‘all wearing reflective clothing, helmets, and [having] on their bicycle lights as they rode along in single file on a fine evening’.48

In reality the scientific jury is still out on the efficacy of cycle helmets, predominantly because cycle helmets would be a completely useless protection in such horrific situations. Robert Davis in Death on the Streets: Car and the Mythology of Road Safety claimed that bicycle helmet-wear had ‘become one of the major – if not the major – “road safety” issues of the 1990s … [and yet] the beneficial effects of helmet-wear are minimal, non-existent, or even negative.’49 We know that less than 50 per cent of cycle ‘accidents’ are collisions with other vehicles; so cyclists do just ‘fall off’ for a variety of reasons, but the pro-helmet campaigners are much too simplistic when they assert that ‘research has shown that wearing a good-quality cycle helmet is proved to reduce deaths from head injury’;50 the research does not show that by any means. The correlation is by no means automatic. Cycle helmets are generally made of polystyrene and offer minimal protection. They are designed to withstand falls from a bike at no more than around 12mph. The first cycle racing helmet was evolved by the manufacturers Bell from a ski helmet in 1961, and the ‘first truly effective bicycle helmet – the Bell Biker’ was produced in 197551. And yet the semiautomatic implication of fault when a cyclist is not wearing a helmet, unscientific though it is, seems to be gathering currency. ‘Obviousness’ is not in reality apparent when the detail is studied52. A helmet clearly cannot protect a cyclist from injury to parts of the body other than the crown of the head, and therefore the simple fact of a victim not wearing a cycle helmet should not imply culpability, without a great deal further investigation.

Interestingly the scientific view seems to be paradoxical. For example, it is clear that the road users most at risk from head injury are pedestrians and young drivers, and not cyclists. In Great Britain, six times more pedestrians and eighteen times more motor vehicle occupants suffer lethal head injuries than cyclists. Children are 2.6 times more likely to suffer head injury through jumping and falling than by cycling, and more than 99 per cent of head injuries seen by UK hospitals do not involve road cyclists. It would therefore seem logical that helmets for motorists would be rather more effective than those for cyclists, and certainly more beneficial than seat belts, interior padding or air bags. The potential of car driver helmets for reducing injury is 17 times greater than that of cycle helmets53.

In one cycling case in 2001 at the High Court in Newcastle, A (a child) v Shorrock, a QC tried repeatedly to persuade some neurosurgeons, and a technical expert, to state that one must logically be safer wearing a cycle helmet than without; all three refused to so agree, stating that they had seen severe brain damage and fatal injury both with and without cycle helmets being worn54. In their view, the performance of cycle helmets is much too complex a subject for such a sweeping claim to be made. In that case, a 14 year old cyclist doing a paper round lost, but on grounds other than anything to do with a cycle helmet – he had cycled into the path of a police officer driving slowly home. However, having heard the scientific evidence, Judge Brown made it clear that the claimant’s failure to wear a cycle helmet did not amount to contributory negligence55. The view of Simon Holt, a solicitor who has over 30 years experience in personal injury claims, and who formed CycleAid in 1988, is that ‘When there is a major impact, a cycle helmet offers little protection.’56

What does seem clear, however, is that when cycle helmets are made compulsory, then cycling levels drop dramatically, particularly among teenagers. A study in 1998 at Newcastle University on perceptions of risk found that parents over-estimated the danger of their children being abducted, while ignoring simple road safety lessons; out of more than a thousand parents questioned, only 18 per cent would allow their child to go to the local park or play area alone, but 61 per cent said that they allowed their child to cycle without a helmet. However, the statistics they analysed showed that while 37 children were murdered, 204 died through road accidents in 199757. It is of course very difficult for parents to get a proper balance between encouraging a spirit of adventure and the need to protect the health and safety of their children. And yet insisting on protective headgear for young cyclists in the neighbourhood may drastically cut the levels of cycling altogether. There is plenty of evidence showing that efforts to impose helmet-wearing are strongly linked to reductions in cycle use – particularly among teenagers – thereby eroding the huge range of health and other benefits that go with cycling. One imponderable here is ‘fashion’. Jean Corston MP, when introducing her Cyclists’ Helmets Bill in 199 attempted to enlists the help of the pop band Boyzone, saying that ‘too many young people believed that helmets would give them a bad hair day, when in fact they saved lives’58. Two examples from Cornwall are representative of a huge discussion in newspaper columns and letter pages. Mattias Coleman, a 9-year-old, was riding his bike from his home in Truro to a playground when he was in collision with a taxi; he donated his helmet to the head injuries ward of the Royal Cornwall Hospital, where he recovered from concussion, but the evidence was that without it he would have died: ‘I’m shocked because if my mum didn’t make me wear my helmet I wouldn’t be here today… I looked in the mirror when I was wearing it and I thought I looked stupid but it doesn’t matter now – it saved my life59. But not far away in Launceston, a 14-year-old ‘left home wearing the helmet to please his mother but hid it in a hedge as soon as he was out of sight … because he did not want school friends to see him wearing it’; minutes later he died when struck a glancing blow by a van. The Coroner stated that ‘I hope other young cyclists who read about Christopher’s death will decide to wear helmets.’ The victim’s mother commented that ‘We don’t know whether the helmet would have protected him from the injuries, but perhaps he might have been seen sooner. It was a bright red helmet. It has been a trend around here not to wear helmets and Chris wanted to go along with that. It was peer pressure.’60

This raises one feature of helmets, that they may provide an additional visual clue to drivers: gaudily coloured or with a reflective ‘halo band’ or with an LED light attached, a helmet can stand high as a warning beacon in urban traffic, prominent over the roof line of most cars. Perhaps not for nothing is the emblem and nickname of the Royal Signals Motor Cycle Display Team the ‘White Helmets’61. Research from New Zealand has shown that motorcyclists who wear white helmets instead of black ones cut their risk of a serious crash by a quarter; similarly reflective and fluorescent clothing cuts the chance of death or serious injury by 37 per cent; and using headlights in daytime by 27 per cent62. However, it is always very difficult to sort out the factors here; one medical commentator on this research suggests that motorcyclists ‘who feel safe wearing high visibility clothing and light helmets also ride in such a way that makes them less likely to crash’63. This also raises Dr Mayer Hillman’s assertion of ‘risk compensation’ on cycle helmets: ‘Cyclists are less likely to ride cautiously when wearing a helmet owing to their feeling of increased security. In this way, they consume some, if not all, of the benefit that would otherwise accrue from wearing a helmet.’64 This has sometimes been bowdlerised into a more extreme form of ‘Volvo effect’, or considering that a cycle helmet makes you feel ‘invincible’,65 a word never used by Dr Hillman. However, it is very difficult for anyone to argue with Dr Hillman’s main hypothesis that ‘by wearing helmets, cyclists are at best only marginally reducing their chances of being fatally or seriously injured in a collision’. This is perhaps a counter-intuitive paradox, but the research shows that few fatalities and injuries can be prevented by cycle helmets being worn. Despite this study the Department for Transport deploys considerable expenditure to exert pressure for wider helmet usage; for example, their information leaflet Cycle Safe: Tips for Safer Cycling starts its discussion with a logo of a cyclist in a helmet and follows with an opening passage entitled ‘Wear a Helmet’. Such an approach is obviously likely to be endorsed by the manufacturers of helmets, and indeed a leaflet produced by them is widely available in British schools too. Many cyclists will no doubt wish to wear a helmet. There is some, though not much, scientific evidence that it can protect a cyclist in the rare ‘swallow dive’ fall on to the top of their head. But on no account should the absence of a cycle helmet be used as an automatic penalty reduction for the damages of a cyclist involved in an accident. A detailed forensic examination will be necessary on every occasion to ensure justice rather than the reflex cut in compensation.

fn16. rule 21.10 of the Civil Procedure Rules.

fn17. Drinkall v Whitwood [2003] EWCA Civ 1547.

fn18. [1969] 1 AC 170. Dietz v Lennig Chemicals concerned a widow who had agreed a settlement both for her and her infant son ‘subject to the approval of the court’, and then unknown to either of the solicitors involved, remarried. The settlement was set aside at the request of the defendant in the light of the new circumstances. See for a view that such settlements give ‘extraordinary generosity’ and over-compensation, Peter Cane, Atiyah’s Compensation and the Law (London: Butterworths, 6th edition) p. 113.

fn19. R.S.C. Order 80, rules 11 and 12.

fn20. [2003] EWCA Civ 1547.

fn21. ‘Cycle hat rule blow to payout’, Scunthorpe Evening Telegraph (13 November 2003). See also the short law report in The Times ‘Reneging on minor’s partial settlement’ at (13 November 2003).

fn22. Cyclists are thirty times more likely to be killed by a heavy goods vehicle than a car in London. The study by public health experts in Camden and Islington discovered that lorries, trucks and buses were implicated in twothirds of the 178 cycle deaths in Greater London between 1985 and 1992; British Medical Journal (1994), quoted in the Evening Standard (27 June 1994).

fn23. Scunthorpe Evening Telegraph (22 July 1998).

fn24. The Times (12 January 2002).

fn25. ‘Record sentence for 13-pint driver who killed six’, The Times 8 March 2001.

fn26. However, the sentence was cut on appeal from 15 years to 10 years; Daily Mail (25 June 2002). R v Noble [2002] EWCA Crim 1713, [2003] RTR 115.

fn27. Nettleship v Weston [1971] 2 QB 691, [1971] 3 All ER 581, [1971] 3 WLR 370, [1971] RTR 425.

fn28. See the interview in The Times (30 October 2001) and the subsequent book, Thomas Munch-Peterson, Fatal Error: Confessions of an accidental killer (London: Short, 2003).

fn29. See generally http://www.dft.gov.uk/ See also publications of the former Department for the Environment, Transport and the Regions, such as Tomorrow’s roads: safer for everyone (2000).

fn30. ‘Road Safety: The New Philosophy’, which first appeared in Inroads, Journal of the Institute of Road Safety Officers, in 1995, and now on http://ourworld.compuserve.com/homepages/traffic_safety/mayer.htm

fn31. Vol 2, Table 124, Royal Commission on Civil Liability and Compensation for Personal Injury, HMSO, Cmnd.7054-I, 1978.

fn32. See David Person, Facing Colossus: Insurance Claims, Constructive Bargaining and Personal Injury Settlements (unpublished PhD thesis, 2003). See generally Hazel Genn, Hard Bargaining: Out of Court Settlement in Personal Injury Actions (Oxford: Clarendon, 1987).

fn33. Damages for Personal Injury and Death, the leading practitioner’s text.

fn34. Brian Williams v Jacqueline Ashley, Press Release from Exchange Chambers, Liverpool, EC/09/99 (17th November 1999); Judge Rogers QC, sitting as a Deputy High Court Judge.

fn35. RoSPA does not believe that it is practical to make the use of cycle helmets mandatory ‘because voluntary wearing rates are too low’, but it indicates that ‘There may be stronger arguments for limiting mandatory cycle helmet use to child (rather than all) cyclists.’ See generally http://www.rospa.com/cms/STORE/Road%20Safety/cycling_files/cycling.htm

fn36. This facial impact injury was the probability when Fabio Casartelli died in the 1995 Tour de France, sparking a worldwide debate on cycle helmets in the popular press. Casartelli struck his head on a solid concrete block positioned at the side of the road, and the Tour’s doctor, Gerard Porte, stated categorically that Casartelli fell on his face. A postmortem examination by Michel Disteldorf on behalf of the coroner in Tarbes suggested that the impact was on the top of the skull and a helmet might have prevented some injury; ‘The hard truth behind a waste of life’, Sunday Times (23 July 1995). The World Health Organization helmet campaign attempts to draw the contrast between crashes in the Tour de France, one involving Chris Boardman with a helmet, and Fabio Casartelli without a helmet, both receiving blows to the side of the face; see the photos and discussion at http://www.sph.emory.edu/Helmets/

fn37. Copy of CTC press release, 2001. As a result of the Coombs case, the CTC set up a Cyclists Defence Fund in 2001 to help resist threats to the rights of cyclists.

fn38. Coombs v Bennett [2002] EWCA Civ 1674.

fn39. See the CTC press release (14th November 2002). Mr Millett’s solicitor Joseph Rahm was quoted as saying that ‘The considerable discontent CTC members showed led NIG to back down very quickly. When it comes to protective head gear, insurers know they are on a poor wicket and that there is no proof that the head injury would have been lessened by the wearing of a helmet.’

fn40. BBC News (2 October 2003). See also the report at cyclingnews.com and in Vehicular Cycling and Helmet News (October 2003). The report at cyclingnews.com suggested that this was the third case of its kind in the UK where insurers had used a contributory negligence argument, and the third time the argument has been dropped and the case settled out of court.

fn41. The coroner said he would not record a verdict of unlawful killing as he was not satisfied beyond reasonable doubt that the driving was dangerous and recorded a verdict of accidental death from multiple injuries; This is Cheshire (24 March 2004).

fn42. Attorney General’s Reference (No 88 of 2003) [2004] All ER (D) 572. See the report in the Liverpool Daily Post (31 March 2004). A comparable case on sentencing was that of five years handed down by Judge Mellor at Norwich Crown Court on a motorist who ran over a cyclist, Kenneth Stokes, taking part in a time trial, despite ‘lights both at the rear and front of his cycle … fluorescent clothing with a flashing light on his back’; Birmingham Evening Mail (25 January 2001).

fn43. See the refusal of the coroner to hold an inquest, when the family felt that work over many years exposed to asbestos dust as an asbestos moulder was ‘asbestos-related’ and therefore an ‘unnatural death’ requiring a full inquiry; Simon Brown LJ dismissed the application, because under section 19 of the Coroners Act 1988 a coroner’s duty was to ‘receive information, investigate and make a decision as to whether an inquest was unnecessary’; Terry v East Sussex Coroner [2001] EWCA Civ 1094, [2002] QB 312. See also R v Poplar Coroner, Ex p Thomas1993 QB 610, 627.

fn44. ‘Coroner’s cycle helmet plea after trail tragedy’, North Devon Journal (18 May 2000).

fn45. ‘Girl’s death prompts cycle helmet warning’, Rugby Advertiser (27 November 2003). Mrs Warren said her daughter ‘had a helmet but didn’t wear it on the day of the accident. She added: ‘I watch these children coming home from school without their helmets. That’s what kids are like, they just don’t think helmets are ‘cool’.’

fn46. ‘Taxi driver jailed over road rage death of cyclist’, The Times (9 November 1996), sentenced for four and a half years by Recorder John Milford QC for using his cab as a weapon in a ‘deliberately hostile piece of driving’.

fn47. ‘Van driver gets 12 months for cyclist’s death’, Evening Standard (17 November 1999), sentenced by Judge Forrester for ‘an aggressive and impatient piece of overtaking’.

fn48. ‘Seven years for drunk driver who left seven children fatherless’, Daily Mail (10 March 1998), sentenced by Judge Hodson for ‘thoroughly outrageous and irresponsible behaviour [which] killed three admirable and hardworking men and wrecked the lives of their loved ones’. The cyclists were two brothers and a brother-inlaw. See also The Guardian (10 March 1998): the driver was three times over the drink driving limit.

fn49. (London: Leading Edge Press, 1992); a critical point made by Robert Davis was that cycling fell by approximately 40 per cent in the Melbourne area in the first year following legislation in the State of Victoria in 1990.

fn50. J H B Adams, Chief Executive, Head Injuries Trust For Scotland, The Glasgow Herald (24 July 1999).

fn51. See the history of Bell Sports at http://www.bellbikehelmets.com/main/about/timeline.html

fn52. See the useful corrective of the Australian High Court, who emphasised that ‘obviousness’ of the risk is only one of a number of factors which should be taken into account in determining the standard of care; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 at para 45, in a case where the claimant had suffered a serious eye injury when playing indoor cricket without the provision of a helmet.

fn53. See generally http://www.cyclehelmets.org and the supporting scientific literature.

fn54. Brian Walker, Head Protection Evaluations, March 2004, quoted at http://www.cyclehelmets.org

fn55. A (a child) vs Shorrock (19 March 2001). See http://www.cyclehelmets.org/1051.html

fn56. He quotes a neurosurgeon witness he has utilised who states ‘Most experienced trauma surgeons believe that cycle helmets give only very limited head protection’. Simon Holt also adds that it is his ‘experience that the defendant’s solicitors are abandoning allegations of contributory negligence for failure to wear cycle helmets, but that may be his individual experience because he determinedly fights every such effort! See his letter published letter published in the May 2003 issue of Bicycle Business, and at http://www.cyclehelmets.org/1054.html

fn57. Department of Community Child Health at Newcastle University, ‘Child abduction fears ‘unfounded’ – Youngsters more at risk from road traffic accidents’, Newcastle Journal, (10 August 1998).

fn58. The Times (3 November 1999). See also Western Daily Press (3 November 1999): ‘Younger children were happy to wear helmets but as they grew older they began to dislike them’.

fn59. ‘Boy’s Life Saved By Cycle Helmet, The West Briton (10 October 2002). A senior house officer at the hospital was quoted as saying about cycle helmets, ‘Even if you don’t like the colour or anything, still wear it.’

fn60. ‘Boy hid helmet before fatal crash’, The Times (30 July 1999). See also Western Morning News (29 July 1999). The four Cornish MPs who are Liberal Democrat have all campaigned for compulsory cycle helmets; Colin Breed, MP for South East Cornwall insists that ‘The lives of many child cyclists could be saved if cycle helmets became compulsory for under-16s’, and introduced an earlier EDM stating that ‘it is estimated that if cyclists are involved in an accident and are not wearing a helmet they are three times more likely to suffer a head injury than if a helmet had been worn’; ‘Helmets could save lives’, Plymouth Evening Herald (10 November 1998). The other Cornish Liberal Democrat MPs are Paul Tyler, Matthew Taylor and Andrew George.

fn61. Formed in 1927, this 32-strong team perform fire jumps, fast cross-overs and a pyramid featuring 22 soldiers on six bikes.

fn62. Susan Wells et al, ‘Motorcycle rider conspicuity and crash related injury: case-control study’ British Medical Journal (23 January 2004). See also Motorcycle Roadcraft. The Police Rider’s handbook (London: Coyne, 1996). Note now rule 69 of the Highway Code for motorcyclists: ‘Daylight Riding. Make yourself as visible as possible from the side as well as the front and rear. You could wear a white or brightly coloured helmet. Wear fluorescent clothing or strips. Dipped headlights, even in good daylight, may also make you more conspicuous’.

fn63. Peter M Brindle, General practitioner, BMJ Rapid Response (15 April 2004).

fn64. See generally Mayer Hillman, Cycle helmets: the case for a against (London: Policy Studies Institute, No. 752, 1993). See also Gregory B. Rodgers, ‘Bicyclist Risks and Helmet Usage Patterns: An Analysis of Compensatory Behavior in a Risky Recreational Activity’, Managerial and Decision Economics, Vol. 17, No. 5, Special Issue: Product Safety and Managerial Decisions, (1996), pp. 493-507.

fn65. A word never used by Dr Hillman, but suggested by D.C. Thompson, F.P Rivara, and R.Thompson, Helmets for preventing head and facial injuries in bicyclists (Oxford: Cochrane Collaboration, 2000). See the rebuttal letter by Professor John Adams and Dr Mayer Hillman in the BMJ ( 28 April 2001).

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