How Smith v Finch has been run over by a Boris bike

Cycle helmets are likely to remain a bone of contention between PI litigants for years to come. At least, as far as social cycling is concerned. Different considerations apply to competitive and organized cycling events.

As regards the claimant who is knocked off their bike by a vehicle, defendants will continue to argue that much like seatbelts, the failure to wear a cycle helmet is indicative of contributory fault.  Claimants will continue to argue that any such comparison is misplaced and the failure to wear a helmet is probative of nothing when it comes to contributory fault.

The lodestar for insurers, is the observations of Mr Justice Griffiths Williams in Smith -v- Finch [2009] EWHC 53 (QB) when he suggested that the presence or absence of any legal compunction to wear a helmet was irrelevant to fault. His view was that Froom v Butcher [1976] 1 QB 286 was applicable by inference, and that the failure to wear a helmet was indicative in and of itself of negligence by the rider.

That analysis has never been tested, in that to date no judge has in fact imposed a reduction in damages for the failure to wear a helmet (although there may be an obscure unreported case in a small county court where that has happened). Judicial instincts have (on one view) swerved the topic by declining to link the brain injuries sustained, to the absence of a helmet.

But as late as 2004, in Drinkall v Whitwood [2003] EWCA Civ 1547; (2004) 1 WLR 462 it was argued that 25% was the standard or accepted reduction for the failure to wear a helmet. In fact in Drinkall, the defendant insurer pulled out of a 20% settlement before the approval hearing – so convinced were they of a higher percentage at a trial.

I rather suspect any insurer would leap at a 20% deduction offer for not wearing a helmet in 2023.

Smith v Finch certainly remained the starting point by 2011 in Phethean-Hubble v Coles [2011] EWHC 363 and in that case the cyclist was found to be one-third liable for the manner of his cycling (which was reckless in the extreme).   But the absence of a helmet was not considered to be a contributing factor to a very serious head injury and the court said that the defendant had failed to prove that it was more likely than not, that a significant albeit small part of the complex pattern of injury, would have been prevented.

And indeed, there remains a view that no helmet is prima facie evidence of negligence in the context of cycle wearing.  The Sixth Edition of ‘Personal Injury Pleadings says at 17/-16

“Although there is no “legal compulsion” for cyclists to wear helmets, there can be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury; accordingly, the failure to wear a helmet is not normally sensible and may, subject to causation, expose a cyclist to a finding of contributory negligence.” [emphasis added]

That passage gives rise to the slightly philosophical conundrum as to whether there can be ‘no doubt’ that something ‘might’ happen.  And if contributory fault is to be based on what is ‘normally sensible’, against what subjective or objective yardstick should that be measured?

It can hardly be the eponymous ‘Man on the Clapham Omnibus’ because he won’t be wearing a helmet.   Nor is the ‘Officious Bystander’ a useful test, because it may very well depend on where the OB learned to ride a bike.

In Germany, for example, the Federal Court overturned a lower court’s contributory negligence discount of 20% and ruled that no such deduction should apply.

In reaching a decision as to the standard of care that a prudent and sensible cyclist was required to exercise, the Federal Court appears to have been influenced by research which indicated that only 11 % of urban cyclists in Germany wear a cycle helmet.

German Federal Court of Justice [2014] (reference VI ZR 281/13).

So in Germany at least, the court was influenced by the habits of its urban cyclists. And what has changed in the UK since Smith v Finch is the explosion of urban cycling, driven by infrastructure changes and the availability of the public hire bike.

But what of the Highway Code (revised in 2007) which instructs cyclists

“… you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened”. [para 59]?

 But the HWC advises many road users to do many thanks to increase visibility and safety:

Paragraph 3 of the Highway Code–

“Wear or carry something light-coloured, bright or fluorescent in poor daylight conditions. When it is dark, use reflective materials (eg armbands, sashes, waistcoats, jackets, footwear), which can be seen by drivers using headlights up to three times as far away as non-reflective materials.”

Yet pedestrians are rarely (if ever?) held to be contributorily liable for failing to wear hi-viz while walking along a road.

The primary obstacle to a conclusive finding of contributory fault regarding helmets is the absence of compelling medical evidence that they make much difference to the head injury in higher speed impacts.

In the same year that Phethean-Hubble v Coles was decided the Dutch Cycling Union published a paper entitled “Why bicycle helmets are not effective in the reduction of injuries of cyclists”

Theo Zeegers, Fietsersbond [Dutch Cycling Union] 2 November 2011

But the development which is likely to render all but nugatory the contributory fault argument is not the law, nor neurological expertise, but the shift in public policy since 2011.

In 2020 (the year of lockdown) here were 10.5m journeys by Santander public hire cycles in London alone.   Since they were introduced in London 4 years ago, more than 5 million journeys have been taken by Lime e-Bikes.

Public hire bikes are popular because they don’t need to be booked or reserved.  These journeys are intended to be spontaneous.  Unlike wit commuter cyclists who invariably do wear a helmet, public hire cyclists rarely do.  In fact, if it were required to wear a helmet to hire a public bike, its likely that demand would all but collapse.

In Australia, cycle helmets are mandatory for cyclists in the road (Rule 256 of the Australian Road Rules) but a similar proposal in Ireland was vetoed by the Minister from Transport, Tourism & Sport, who ruled out making cycle helmets mandatory in July 2021.  This was because of the potentially negative impact on the take up of casual cycling:

“International evidence is that mandatory helmet legislation acts as a major disincentive to cycling such that the net impact of the legislation on public health is significantly negative.,”

Cycling Policy, Dáil Éireann Debate, Tuesday – 30 June 2020

It seems what will kill the argument regarding contributory negligence and the use of cycle helmets is not a shift in the law, but a shift in public policy and societal norms.    As hire bike and e-scooters become more and more common, the percentage of cyclists wearing helmets will inevitably decrease, even if the absolute numbers do not.

A finding that the absence of a helmet when cycling could amount to negligence, may reflect on the provider of public hire bikes and the absence of helmet provision by those same providers.  The providers may thereby find themselves joined to actions regarding the use of their equipment without helmets.

In which case, the Compensation Act 2006 may well therefore come into play:

S.1: A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might—

(a)prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or

(b)discourage persons from undertaking functions in connection with a desirable activity.

It seems increasingly common that the leisure cyclist – ‘prudent and sensible’ or not – is forgoing a helmet for convenience, and reflecting the reality that bike journeys are often short hops within town, rather than commutes to and from work over longer distances.  Smith v Finch, and the analysis that underpinned it, has been run over by the Boris bike and the Lime bike.

And it is unlikely to recover anytime soon.

Article by Colm Nugent