A lawyer’s response to a judgment that could see bare-headed cyclists share blame for injuries
In 2005, cyclist Robert Smith suffered a severe head injury when he was involved in a collision with a motorcyclist.
The defendant, Michael Finch, argued at the trial that the claimant’s injury was partly caused by his failure to wear a helmet.
The judge, Mr Justice Griffith Williams, ruled against the defendant, finding that the location of the impact to the claimant’s head and the likely speed at which he hit the ground meant that his injuries would have been equally severe had he been wearing a helmet.
Crucially, though, the judge’s comments support the view for the first time that where a defendant can provide medical and other expert evidence that the injuries would have been reduced if a helmet had been worn, the damages paid to the claimant should be reduced.
This is a landmark decision, as it applies the rationale behind the decision in Froom and others vs Butcher , a watershed case in which it was decided a claimant’s damages following a road accident could be reduced by up to 25% if the injuries could have been avoided had the claimant been wearing a seatbelt.
The Smith ruling has prompted a backlash from the cycling community, many of whom consider the decision to be a back-door means of forcing cyclists to wear helmets.
The decision, however, will be welcomed by insurers as it will allow them to seek reductions in cases where it can be proven that a helmet would have avoided or reduced the claimant’s injuries.
Ultimately, London mayor Boris Johnson is right when he says that cyclists have the right to choose between “hatless, windswept liberty” or “helmeted security”.
But many believe that those who choose to ignore the demonstrable safety benefits of wearing a helmet should be held accountable, perhaps to a greater extent than 25%.
Neil Southern is an associate at law firm Keoghs.