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The decision to wear a cycle helmet and the impact on contributory negligence

Minster Law

Unlike for motorcycles, it is not illegal for riders of bicycles or quad bikes to choose not to wear a helmet. This is set to continue despite the 2022 updates to the Highway Code.

The Highway Code provides the overarching guidance on driver and rider behaviour and rule 59 says you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened.

The 2022 proposed changes to the Code add that evidence suggests a correctly fitted helmet will reduce your risk of sustaining a head injury in certain circumstances. Neither Code mandates the use of cycling helmets therefore, but states that riders should choose to do so.

Personal injury case law on cycling helmet use reflects the above rules, with the courts understanding that riders are allowed to use their discretion. However, where the use of a helmet would have been likely to prevent or reduce head injuries sustained in an accident where no helmet was worn, the courts have often reduced the Claimant’s award to reflect the amount that their conduct contributed to their injuries.

Two examples of this are:

  • Drinkall v Woodhall [2003] EWCA Civ 1547 – A Defendant made a court application to retract their early admission of 80% liability as it was apparent that the Claimant was not wearing a cycle helmet during the accident. The Court granted the application on the basis their arguments had merit.
  • Smith v Finch [2009] EWHC 53 (QB) – The Defendant argued that a deduction of 15% should be made to the Claimant’s damages for failing to wear a cycle helmet and subsequently suffering a serious brain injury. In this case, their argument failed because the speed of the impact between the Claimant’s head and the ground was too fast for the helmet to have been effective in any event. However, Mr Justice Griffith commented that “there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of a greater injury…” and “… subject to issues of causation, any injury sustained may be the cyclist’s own fault…”.

Also relevant is the matter of Capps v Miller [1989] 2 All ER 333, in which a cyclist’s injury compensation was reduced by 10% by the Court of Appeal because their helmet was unfastened, which was determined to have contributed to their injuries.

How the courts will judge contributions made to injuries by a cyclist not wearing a helmet is uncertain. The courts will assess the facts of each case and medical and cycling expert opinion and determine on those facts whether a helmet would have made a material difference. It is apparent, though, that the courts are willing to reduce a Claimant’s damages where their choice not to wear a helmet is likely to have worsened the injuries they sustained.

Lord Denning was quoted in the Froom v Butcher [1976] 1 QB 286 seatbelt-wearing case as saying that an individual choosing whether or not to use safety equipment that isn’t mandatory is: ‘Free in the sense that everyone is free to run his head against a brick wall, if he pleases…If he does it, it is his own fault; and he has only himself to thank for the consequences’.

It is sensible to wear a cycling helmet whether it is or is not mandatory. As to the construction of the helmet, while the courts have not yet measured the effectiveness of cycle helmets to a newer standard of safety than the BSEN 1078 measures (first introduced in 1997) it would also be sensible to research and purchase the best-protecting helmet available within your budget.