Smith v Finch (Queen's Bench Division - 22 January 2009)
In 2005 the claimant was riding his bicycle in a quiet village when he was in collision with a motorcycle. As a result of the accident the claimant suffered a severe head injury. He was not wearing a helmet.
The trial judge decided that the accident was caused by the negligence of the motorcyclist, in riding too fast and in failing to avoid the claimant and his bicycle when he could and should have done so. He then went on to consider whether a cyclist who does not wear a helmet should have his damages reduced if the wearing of an approved helmet would have prevented or made his injuries less severe. He answered in the affirmative.
Froom and others v Butcher (1976), where a claimant's damages following a road traffic accident were reduced by 25% for failing to wear a seatbelt that would have prevented the injuries, was applied. In the judge's view it did not matter that there was no legal compulsion for cyclists to wear helmets as the most important factor was the failure to wear a helmet may expose a cyclist to the risk of greater injury. He did not go on to consider what the appropriate reduction would have been as he was not persuaded that the wearing of an approved helmet would have prevented or made less severe the head injury suffered by the claimant.
This is a watershed decision because it extends the rule in Froom (regarding wearing a seatbelt) to the failure by cyclists to wear helmets. It is a decision that will be welcomed by insurers who will hopefully ensure, as the defendant failed to do in this case, that medical evidence is obtained to prove that the wearing of an approved helmet would have prevented or made less severe the injuries in question. There would appear to be no reason why the percentage reduction considered in Froom (25%) could not equally apply.
David Tye-Reeve, BLM Southampton.
- These law reports are contributed by national law firm Berrymans Lace Mawer (www.blm-law.com).
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