With the contentious 'contributory negligence' helmet debate currently a hot topic for the trade, BikeBiz asked Tahir Basheer & Jo Latimer from law firm Sheridans for their analysis on the ramifications of the Smith v Finch ruling...

The Helmet Debate

The wearing of cycle helmets is a controversial topic and one of debate. Plenty of research has been undertaken in the UK, and internationally, as to the benefits of wearing a cycle helmet and papers have been published for and against.

The Highway Code recommends that cyclists ‘should’ wear a cycle helmet, but the rule only provides best practice advice. Presently the wearing of a cycle helmet in the UK is not compulsory.

Smith v Finch
In Smith v Finch the Court considered whether Mr Finch took reasonable care for his own safety by not wearing a cycle helmet and whether his injuries would have been prevented, or reduced in severity, if he had been wearing a helmet. Mr Smith was cycling along a village road when he was involved in a collision with Mr Finch, who was riding a motorcycle. Mr Smith claimed that he was in the centre of the road about to turn right into a driveway when Mr Finch attempted to overtake him on the outside; the collision ensued.

Mr Smith argued Mr Finch was travelling at an excessive speed and did not keep a proper look out so did not see him. In his defence, Mr Finch contended that Mr Smith pedalled into his path from the left and he had no reasonable opportunity to avoid the collision.

The Court found Mr Finch responsible for the accident (based on the evidence). Mr Finch was unable to prove that if Mr Smith had been wearing a cycle helmet it would have made a difference to his injuries, therefore, Mr Smith was not contributory negligent.

Contributory Negligence
In reaching its conclusion the Court considered the case of Froom v Butcher. In Froom v Butcher it was established that a car driver or passenger involved in an accident was contributory negligent for their injuries if not wearing a seatbelt. Mr Finch argued the case should be applied to cyclists who do not wear cycle helmets. Whereas, Mr Smith contended it was not applicable as, at that time (1976), the Government was intending to make the wearing of seatbelts compulsory; there is currently no intention to make the wearing of cycle helmets compulsory.

The Court concluded that Froom v Butcher should apply to the wearing of cycle helmets, regardless of the lack of intention to make it a legal requirement. A cyclist, in not wearing a helmet, runs the risk of contributing to injuries sustained, but it is for the Defendant to prove.

Smith v Finch has introduced the possibility that a cyclist may be guilty of contributory negligence by not wearing a cycle helmet and that any damages awarded may be reduced. The Court is not saying that a cyclist could be contributory negligent by not wearing a helmet, irrespective of who is found responsible for the accident, as this is something for the Defendant to prove. To do so, the Defendant must prove the cyclist failed to take reasonable care by not wearing a cycle helmet and that any injuries would have been less severe if the cyclist had been wearing a helmet.

This case will, no doubt, add fuel to the fire of the cycle helmet debate and comes at a time when the government is trying to encourage people to be more fit and active. The promotion of cycling is notable in London where it is reported, on the Mayor’s website, that cycling on major London roads has increased by 83% from 2000. The Mayor wants to build on this and announced a strategy in 2008 to increase cycling by 400% by 2025 in the Capital.

Undoubtedly the more cyclists there are on the roads, the greater the risk of incidents occurring. With an ever increasing cycling population the ruling in Smith v Finch is sure to be tested.

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