If, like me, you are a fair weather cyclist, this time of the year sees a flurry of activity as I prepare my bicycle for the summer months. This invariably involves cleaning the bike down, oiling, lubricating, checking tyre pressures and generally making sure that the bike is fit to be ridden.
As a personal injury lawyer, I often have to explain to clients why the amount of their claim for injury can be reduced by their own actions at the time of the accident by, for example, their behaviour in not wearing a seatbelt in a car accident. The law is established on what is termed “contributory negligence” in accident cases but in the cycling world this has been virgin territory until a case that came before the High Court earlier this year.
I have always seen the wisdom in wearing a cycle helmet even though I know that in a confrontation between a bike and a car or other vehicle, it is unlikely to have a significant effect on the degree of injury sustained. Where it is important is where the rider falls from the bike onto the ground and perhaps due to no actual fault but a mistake on the part of the rider himself.
It is in these circumstances that I think wearing a helmet is quite important and this certainly seems to have been the thinking in the light of the recent case of Smith v Finch were the Judge stated that a cyclist has a duty to wear a helmet when cycling and that the failure to do so may be negligent. To the extent that the injury is caused by the failure to wear a helmet, the claimant or the injured party could be held to be the author of his or her own misfortune. In effect, they may have no one to blame but themselves.
Considerable debate has been provoked since this ruling and there are those who do not see it as anything other than a continuation of the seatbelt argument while others believe that it was simply an off-the-cuff remark made in a case where on the facts Mr Smith’s failure to wear a helmet was found to have had no adverse consequence.
It is not perhaps without some irony that the brain injury charity Headway in their 30th anniversary year should have chosen a campaign of cycle helmet wearing in their recent “Hats 4 Headway” fund raising events.
The debate however continues to rage as to whether the wearing of a cycle helmet is something that should deprive the injured cyclist from recovering his or her damages in full. On a personal basis, I do not think it is something that should be ignored since the evidence tends to suggest that wearing a helmet can protect the cyclist from increased injury in a fall. After all, this has to be the sole purpose of wearing one rather than becoming the first injured cyclist to make legal history!
Paul Bennett |
