PERSONAL INJURY POINTS 2: CONTRIBUTORY NEGLIGENCE, CAUSATION, EVIDENCE AND FAILURE TO WEAR A CYCLE HELMET (SOMETHING ABOUT PLEADINGS TOO)

In the previous post in this series I mentioned that there was a backlog. I didn’t anticipate that I would be looking at a case that was decided in 2009.  However the judgment has recently arrived on BAILLI and it has various points that remain of interest, particularly in relation to the requirement that a party alleging something (in this case that a failure to wear a cycle helmet) must prove causation.

(Photo by Waldemar on Unsplash)

“If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that. There was no evidence to prove that any particular injury and residual disability was or may have been avoided had a helmet been worn.”

KEY PRACTICE POINT

This is a case of some age now. However it makes the fundamental point that a defendant has to prove causation when alleging contributory negligence. It is also a reminder of the importance of  thinking about allegations of contributory negligence, and pleading in the alternative, if the court may find a different version of the facts.

WEBINAR ON RECENT CASES ON CONTRIBUTORY NEGLIGENCE: 1st July 2025: Booking details available here.

This is not a recent case, but it gives rise to issues that are current in many ongoing actions.  Recent cases on contributory negligence and the issues relating to contributory negligence are considered in detail in this webinar.  It considers the basic principles relating to contributory negligence It then looks at recent cases where the courts have considered allegations of contributory negligence (including those where assertions of contributory negligence were rejected)

THE CASE

 Smith v Finch [2009] EWHC 53 (QB)

The claimant was injured whilst riding a bicycle. His case was that his injury was due to the negligent driving of the defendant.  The defendant denied this and alleged contributory negligence. One of the grounds of contributory negligence was that the claimant was not wearing a cycle helmet.

THE VERY LATE APPLICATION TO AMEND

The judge allowed a very late application to amend.

“6. At the start of the trial, Mr Hoskins, counsel for the Defendant, indicated that if, on the evidence, the Court was to find that the Claimant had not ridden out from Maltings Road but had been cycling along Samson’s Road, the Defendant may seek to advance an alternative case that the collision was caused by the Claimant’s own negligence in moving into the Defendant’s path so that the Defendant had no reasonable opportunity to avoid a collision. At the conclusion of the evidence, Mr Hoskins applied for leave to file an Amended Defence and for leave to dispense with the requirement that the Amended Defence be verified by a statement of truth (CPR 22.1(2)) because the Defendant cannot verify the truth of an alternative case which is factually inconsistent with his case.

7. Mr Hoskins cited Binks –v- Securicor Omega Express Limited [2003] 1 WLR 2557 and relied in particular upon the observations of Maurice Kay J (as he then was) with which Pill and Cornwath LJJ agreed, at paragraphs 8 and 9 on pages 2562D-2563E:-

“… rule 22.1(2) enables the court to dispense with verification by a statement of truth when a statement of case is amended. It does not specify circumstances in which the power of dispensation might arise but I take the view that amendment to plead in the alternative a case derived from an opponent’s documents, pleadings or evidence is capable of being such a case. To the extent that the Practice Direction to Part 17 suggests otherwise, I give precedence to the rule over the Practice Direction. Moreover, I do not accept that the purpose or effect of Part 22 is to exclude the possibility of pleading inconsistent factual alternatives. In this I take comfort from the judgment of Patten J in Clark v Malborough Fine Art (London) Ltd [2002] 1WLR 1731, 1745-1746, para 30. It is true that Patten J was not concerned with a dishonest Claimant who was clinging to a false account and a Defendant whose witnesses, at least on one view, were providing evidence for an alternative factual basis of liability. Nor was he concerned with other possible scenarios that readily spring to mind – for example, a Claimant in a personal injury case who simply does not know what happened but relies on an independent witness who proves unreliable in circumstances where the Defendant’s evidence nevertheless provides him with a positive case; or the Claimant who honestly believes in, because he has wrongly convinced himself of, the truth of his case, but who can nevertheless advance a case on the basis of the Defendant’s pleadings or evidence. Such scenarios and the history of the present case dispose me to the view that it is necessary to adopt a broader approach to Part 22. In my judgment, it does not in all cases prevent a party from submitting or amending a pleading which includes an allegation which he is not putting forward as the truth, provided that there is an evidential basis for it. If it is in the form of an amendment then, as I have said, it may be appropriate for the court to permit it without requiring a statement of truth. Moreover, I do not consider it objectionable in principle for a Claimant to advance an alternative case based on material put forward by his opponent. In such circumstances, it may be possible for him to append a statement of truth, suitably drafted. Making it clear that whilst his primary case is not an assertion of the truth of his opponent’s account, if the court finds that to be the truth, he will seek to rely upon it as an alternative basis for liability…
9. Although I accept that the purpose of Part 22 is to deter or discourage Claimants from advancing a case which is inherently untrue or wholly speculative (a purpose which will never be wholly achieved), I do not accept that its purpose extends to the possibility of relieving of liability a Defendant whose own evidence may establish a cause of action against him. That would not be consistent with the overriding objective of dealing with a case justly (CPR R1.1(1).”

8. Mr Hoskins expressly stated that the amendment was not related in any way to the Defendant’s own case – which remains that the Claimant pedalled from Maltings Road – but addresses the Claimant’s case and so raises an issue of contributory negligence as well.

9. Mr Glancy QC, counsel for the Claimant, objected to so late an amendment; he submitted the averment could have been pleaded at the outset but his principal objection was on the ground that there is no evidence to support it and it is based upon no more than speculation.

10. I am satisfied there is some evidential basis for the amendment in the evidence of the Defendant’s expert witness Dr Searle and as no prejudice will be occasioned to the Claimant by so late an amendment, I give leave to file an Amended Defence with a new paragraph 3A – “In the event that contrary to his case the Court finds that the Claimant was, prior to the accident, cycling along Samson’s Road the Defendant will aver that the accident was caused by the Claimant’s own negligence in moving into the Defendant’s path so that the Defendant had no reasonable opportunity to avoid a collision” – and order that the requirement of a statement of truth, drafted in the terms suggested by Maurice Kay J at page 2562, be dispensed with.”

THE DECISION ON THE AMENDED CASE IN RELATION TO CONTRIBUTORY NEGLIGENCE

Having given the defendant permission to amend the defence the judge rejected the defendant’s contentions as to how the accident was caused, and the alternative allegations of contributory negligence.  The accident was solely the fault of the defendant driver.

THE JUDGMENT ON THE CYCLE HELMET

The judge considered the defendant’s allegation that it was contributory negligent not to wear a cycle helmet. The judge found that it was potentially contributory negligent however the defendant’s evidence did not establish that the failure to wear a helmet would have led to the claimant’s injuries being any different.  The allegations of contributory negligence failed.

“39. The Claimant sustained the severe head injuries particularised in the report of Professor Schapira [123]. A CT scan, following his admission to hospital, showed a left extradural haematoma and a left occipital fracture, traumatic subarachnoid haemorrhage and multiple cerebral haemorrhages. A CT scan following his transfer to Oldchurch Hospital showed a left occipital small extradural haematoma; there was a left caudate anterior capsule and globus pallidus haematoma, right temporal contusions and multiple petechial haemorrhages in the bifrontal regions, more on the right than the left and a small subdural haematoma in the right tentorium. The Claimant was taken to theatre on 9th June and underwent a right fronto-temporal craniotomy; a temporal lobectomy was performed and haematoma evacuation undertaken. He was returned to theatre and the inferior frontal lobe was removed as far as the falx for further decompression. He was discharged home in August 2005. He has made a good physical recovery from his injuries but the major impact of the head injuries has been upon cognition, behaviour and speech function; there are significant problems with memory, concentration and expressive dysphasia; he needs help with every day tasks but most importantly, he has developed post traumatic epilepsy.

40. The Defendant’s case, relying upon the provisions in the Highway Code is that these injuries were sustained wholly or in part by reason of the Claimant’s failure to wear a safety helmet. The 2004 edition of the Highway Code provided the following guidance to cyclists – “you should wear a cycle helmet which conforms to current regulations”. Mr Hoskins submitted that as a motorist or a passenger can be guilty of contributory negligence for his/her failure to wear a seatbelt, so a cyclist can be guilty of contributory negligence for failing to wear a safety helmet. He relied upon the decision of the Court of Appeal in Froom and others –v- Butcher [1976] 1 QB 286 and in particular the following passages from the judgment of Lord Denning MR:-

“It is compulsory for every motorcar to be fitted with seatbelts for the front seats… Seeing that it is compulsory to fit seatbelts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seatbelt. Everyone is free to wear it or not as he pleases. Free in this sense, that if he does not wear it he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.
Much material has been put before us about the value of wearing a seatbelt. It shows quite plainly that everyone in the front seats of a car should wear a seatbelt. Not only on long trips, but also on short ones. Not only in the town, but also in the country. Not only when there is fog, but also when it is clear. Not only by fast drivers, but also by slow ones. Not only on motorways, but also on side roads…
… the provision of the Highway Code which contains this advice”; Fit seat belts in your car and make sure they are always used”. This advice has been in the Highway Code since 1968, and should have been known to the plaintiff at the time of his accident in November 1972.” 293 B-H.
and

“The governments view is also plain. During the years 1972 to 1974 they spent 2½ million pounds in advertisements telling people to wear seatbelts. Very recently a Bill was introduced into Parliament seeking to make it compulsory. In this respect England is following the example of Australia where it has been compulsory for the last three or four years. The Bill here has been delayed. And so it will not be compulsory yet a while. But, meanwhile, I think the judges should say plainly that it is the sensible practice for all drivers and passengers in front seats to wear seat belt whenever and wherever going by car. It is a wise precaution which everyone should take.” 294 C-D.
and
“In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.” 294 G.
and
“Whenever there is an accident, the negligent driver must bear by far the greatest share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share. But how much should this be? Is it proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seatbelt was entirely inexcusable or almost forgivable? … But we live in a practical world. In most of these cases, the liability of the driver is admitted, the failure to wear a seatbelt is admitted, and the only question is: what damages should be payable? This question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases.
Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seatbelt had been worn. In such case the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25%. But often enough the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seatbelt had been worn, but there would still have been some injury to the head. In such case I would suggest that the damage is attributable to the failure to wear a seatbelt should be reduced by 15%.” Page 295 H-296D.

41. Mr Glancy submitted that the burden of proof is on the Defendant to prove that the Claimant failed to take “all such precautions as a man of ordinary prudence would observe” and that his failure was a contributory cause of his injuries. He submitted the decision and the reasoning behind the decision in Froom and others –v- Butcher should not be applied so as to equate the guidance to wear safety helmets with the requirement to wear seat belts. He submitted that whereas Parliament intended in 1976 that the use of seat belts should be compulsory, there is no intention to make the wearing of safety helmets compulsory. He placed particular reliance upon the evidence of Dr Chinn that the Government’s response to an Early Day Motion that the wearing of safety helmets by pedal cyclists should be compulsory was to commission a major study undertaken for the Department of Transport – “Cycle helmet wearing in 2004″ by Inwood, Whitley and Sexton, which showed that the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘major built up roads’ was 28.7% and that this was very much higher than the overall percentage of adult male pedal cyclists wearing helmets whilst riding on ‘minor built up roads’ which was only 9.0%”. The Government then decided there should be no compulsion. It must follow, he submitted, that even though the Highway Code recommends the wearing of helmets, it cannot be negligent not to wear one. He submitted that it is perhaps not surprising that the argument that it is negligent not to wear a cycle helmet has never been pursued in any Court up to this case. If the Court is against that submission, he submitted it was not negligent of the Claimant not to wear a helmet when riding along quiet, minor roads in a residential area.

42. Dr Bryan Chinn, who has many years’ experience in the field of motorcycle safety, head injuries and the use of cycle helmets, said he would advise the wearing of cycle helmets because at certain speeds and in certain conditions, they offer protection from head injuries.

43. I remind myself that I am concerned to decide what standard of care should have been required of a pedal cyclist in 2005. My conclusion is that the study by Inwood, Whitely and Sexton in 2004 (see above) does not support an argument that as the majority then was not using helmets, it would be wrong to impose a requirement that they should be worn. As it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road. The introduction to the Highway Code stated that “Knowing and applying the rules contained in the Highway Code could significantly reduce road accident casualties. Cutting the number of deaths and injuries that occur on our roads every day is the responsibility we all share”.

44. In my judgment the observations of Lord Denning MR in Froom and others v. Butcher above should apply to the wearing of helmets by cyclists. It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be “a sensible thing to do” and so, subject to issues of causation, any injury sustained may be the cyclist’s own fault and “he has only himself to thank for the consequences”.

45. I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries. I observe that if there is to be a repeat in 2008 of that study, the statistical evidence may show a higher degree of compliance with the guidance in the Highway Code, now that there is a much increased use of pedal cycles.

46. That said, the burden is on the Defendant to prove (i) that the Claimant failed to take ordinary care of himself, or in other words, to take such care as a reasonable man would take for his own safety by not wearing a helmet and (ii) that his failure was a contributory cause of the damage – Lewis –v- Denye [1939] 1 KB 540 at 554 per Parcq LJ. The evidence of Mrs Smith is they both owned a cycle helmet and wore them on busy roads; this is an acknowledgement that both (but more significantly, the Claimant) understood that a helmet may afford a measure of protection for the head.

47. Dr Bryan Chinn and Dr Nigel Mills enjoy good reputations in the field of motorcycle safety and the use of helmets but neither has any medical qualification, although Dr Chinn spent 10 years working with medical practitioners in Glasgow on the effects of head injuries.

48. Both experts agree that the point of impact was the Claimant’s occipital bone. As the burden is on the Defendant to establish that the Claimant’s head injuries would have been reduced by the wearing of an approved helmet, it is to the expert evidence called on his behalf that I now turn.

49. Dr Mills’ opinion is that the vertical velocity at which the Claimant’s head struck the ground was lower than the speed at which helmets are tested in accordance with BSEN 1078, that a modern helmet would have provided protection to the occipital region because the design would have prevented the back of the head striking the ground and the thickness of the polystyrene foam in the helmet would have provided significant protection even though the protection at the edges of a helmet is reduced. He said it is difficult to estimate the velocity of rotational force as opposed to vertical velocity but modern helmets provide protection from rotational force because they reduce the peak force of impact. Importantly, to return briefly to issue of causation, Dr Mills agreed in cross-examination that contact between the body of the Claimant and the body of the Defendant would have increased the Claimant’s speed.

50. Dr Chinn examined the Claimant’s Nolan CY-1 helmet. While it was in sound condition, Dr Chinn’s opinion is that the strap mechanism was badly worn and so the helmet was “virtually useless” as a means of protecting the wearer from head injury. Dr Mills’ opinion was that the helmet was about 20 years old and so offers significantly lower protection than a modern helmet, conforming to European standards.

51. Dr Chinn’s evidence is that both this helmet and a modern helmet would have afforded the Claimant no protection from head injury because of the speed at which the Claimant hit the ground. I stated earlier that I rejected Dr Chinn’s use of the Mizuno and Ishikawa paper as a basis for determining the speed of the motorcycle; I reject its use also as a basis for calculating the speed at which the Claimant hit the ground. That said, I am satisfied, however, that the Claimant (who is a well built man) must have been propelled at some speed from the pedal cycle in order to travel through the air and land on the back of his head some 3.75 metres from the pedal cycle. While I am unable, on the evidence to conclude what the speed of impact with the ground was, I am satisfied on the balance of probabilities that it was faster than 12 mph.

52. Dr Chinn said that if a helmet in good condition which satisfied EU regulations had been worn, it would have given good protection if the Claimant’s head had struck the ground at a speed of about 12 mph or less, provided the head impact location was above the test area, that is above the area from and above the plane RR shown in the diagram at Appendix D [227]. Dr Chinn said the collision was faster than 12 mph and that as the fracture was in the occipital region (at the back of the head) the contact would have been below the lower edge of a cycle helmet and so the helmet would not have provided the necessary protection. He said that at the same time as the head hit the ground, there would have been a rotation injury. He said that a modern type helmet (with a protuberance at the back) available in 2005 would not have protected the occipital bone.

53. I have decided, on balance, that the evidence of Dr Chinn is to be preferred because I am not satisfied on the balance of probabilities that the Claimant struck the ground at the low speed necessary for an approved helmet to have protected him from the severe head injuries. The mechanics of the collision, I am satisfied, necessarily involved a much higher speed than that contended for by Dr Mills (and Dr Searle); my conclusion is that that speed was in excess of 12 mph and so the wearing of a helmet would have made no difference. Further, the scalloped design at the back of the helmet, on the evidence of Dr Chin would have exposed to back of the head; there is also the real possibility that the back of the Claimant’s head came into contact with the raised kerb of the driveway [52] and the helmet design would not, on that scenario, have protected the back of the head.

54. The Defendant has not discharged the burden of proving contributory negligence on the part of the Claimant for another, more fundamental reason – the Defendant has failed to persuade me that an approved helmet would have prevented or made less severe the head injuries sustained by the Claimant. Dr Chinn said in the course of his evidence that the occipital fracture with the left extradural haematoma overlying it and the right temporal contusions may have been caused by the impact with the ground whereas the traumatic subarachnoid haematoma at the front of the head, which had to be evacuated surgically, was probably caused by a contre-coup effect or by rapid rotation of the skull as the Claimant was propelled through the air, causing blood vessels to rupture. Neither he or Dr Mills were able to express any view as to what injury or injuries was responsible for the long term consequences of the severe head injuries.

55. Both Dr Chinn and Dr Mills made the point that they are not medical doctors and that is a fundamental evidential omission. If a party seeks to persuade a Court that an injury would not have occurred or would not have been so serious, only a medical practitioner can speak to that. There was no evidence to prove that any particular injury and residual disability was or may have been avoided had a helmet been worn. The occipital fracture and overlying haematoma may not have been responsible for the more serious consequences of the head injury; it may be that the injury which was responsible for the more serious consequences was that to the front of the brain – I observe that Professor Schapira reported [129/130] that “Memory abnormalities are common particularly in patients who have suffered moderate to severe head injury including frontal and anterior temporal lobe damage” and “Neurological factors associated with aphasia after head trauma are right hemiplegia and primary left hemisphere damage”. There is no evidence to link any particular injury with the post traumatic epilepsy.

56. It follows that the state of the evidence is such that I am not persuaded by the Defendant, on the balance of probabilities, that any of the injuries sustained by the Claimant may have been reduced or prevented by the wearing of the helmet, even if the impact speed was a low enough speed for the helmet to have afforded protection. I cannot exclude as a possibility even if the impact was low enough that the injuries responsible for the Claimant’s residual disabilities were caused by a contre-coup injury – an injury from which a helmet would not have protected the Claimant. Accordingly I make no finding of contributory negligence against the Claimant and so subject to damages to be assessed if not agreed, there will be judgment for the Claimant on both the claim and the Part 20 claim.”