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On the 22nd January 2009 Mr Justice Griffith Williams delivered judgment in the case of Robert Smith v. Michael Finch. In that case a cyclist sustained serious head injuries when he was involved in a collision with a motorcycle. The judge was asked to consider if it was appropriate to make a finding of contributory negligence on the basis that Mr Smith was not wearing a cycle helmet.
Mr Justice Griffith Williams stated “I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries.” The Judge went on to say that the burden is on the Defendant to prove that the wearing of a helmet would have materially affected the outcome. In the case of Mr Smith the Judge was not persuaded by the Defendant that any of the injuries sustained by the injured cyclist, Mr Smith, would have been reduced or prevented by the wearing of the helmet and therefore no deduction was made in relation to contributory negligence.
Since the case of Smith v. Finch Defendants are repeatedly seeking to make deductions for contributory negligence when non helmet wearing cyclists suffer head injuries. An example of this is a case which I am currently dealing with. My client suffered multiple personal injuries including a fractured skull, ligamentous injuries to his left shoulder, sprained right wrist, cracked ribs, soft tissue injuries to his neck and an embolism to his lung. My client was also catheterised for 6 weeks.
The insurers have made a reasonable gross offer in settlement of my client’s claim but seek to reduce his damages by 25% on the basis that he was not wearing a helmet. The Defendant’s position is unreasonable for the following reasons:-
1 My client was struck by a motor vehicle travelling at approximately 30 miles per hour. Cycle helmets are not designed to afford protection to cyclist for such high speed impacts. A cycle helmet will only provide protection for low velocity crashes of speeds up to 12 miles per hour. 2 The Defendants fail to appreciate that many of the significant ongoing symptoms were not in relation to the head injury and yet they seek a blanket 25% deduction for the entire claim.
The judgment in Smith v. Finch is not in my view a definitive opinion that there should be a finding of contributory negligence. However if the judgment is followed in other cases a 25% finding of contributory negligence would rarely be appropriate. Parallels are often drawn with seatbelts. In the case of Froom v. Butcher the Court of Appeal held that it would be appropriate to make a 25% deduction for contributory negligence for failing to wear a seatbelt if the injuries would have been avoided. If the injuries would have been less significant then the finding should be15%.
In my experience insurers are rarely able to obtain evidence to prove that the wearing of a cycle helmet would have materially affected the outcome. It is important to hold firm with insurers.