How Smith v Finch Has Been Run Over By A Boris Bike

Published date23 October 2023
Subject MatterLitigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
Law FirmGatehouse Chambers
AuthorMr Colm Nugent

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...

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