Published: 31st May 2024 Images: Scottish Cycling

Should I wear a helmet? Legal Advice from our partners Digby Brown

In the second article regarding “contributory negligence”, Diane Cooper, Partner from Digby Brown Solicitors, has provided this advice on the legal impact wearing a helmet has when involved in a collision.

A road traffic accident is never going to be caused because someone did not wear a helmet.

The helmet is not designed to avoid crashes – it’s designed to increase protection for riders in the event of a crash. (Well, maybe those helmets with built-in lights are arguably more preventative but you understand my point…)

There is no law in the UK mandating the compulsory wearing of a cycle helmet. However, rule 59 of the Highway Code (2024) recommends that a cyclist:

should wear a cycle helmet that conforms to current regulations, is the correct size and securely fastened. Evidence suggests that a correctly fitted helmet will reduce your risk of sustaining a head injury in certain circumstances.”

The likelihood is that if you are in a collision with a vehicle and you are not wearing a helmet then the insurance company for the driver will argue that by failing to wear a helmet, the cyclist has contributed to his own injuries and that the award of damages should be reduced (i.e ‘contributory negligence’).

Such an argument would only hold water in the case of a head or brain injury. The onus is on the third party driver to prove that the wearing of a helmet would on the balance of probabilities have prevented or reduced the injuries sustained. We would always pre-empt this argument and investigate the causative impact of not wearing a cycle helmet.

We would ask the independent consultant neurologist or neurosurgeon instructed in the case to comment on the impact that a helmet would have made upon the nature, severity and outcome of the head injury sustained. In addition, we would ask a forensic cycle helmet engineer if wearing a helmet would have made a difference based on the factors specific to a particular case.

It must be remembered that cycle helmets have only been tested up to an impact speed of 12 miles per hour under very specific controlled test conditions. Factors such as the design and purpose of the helmet, the nature of the brain injury, the speed, mechanics of the collision, point of impact (moving vehicle v road surface) and direction of the impact force are all relevant considerations. Each case will turn on its own specific facts. It is therefore crucial that the accident circumstances and the actions of both parties are forensically analysed to ensure that the causative impact of not wearing a helmet has been fully explored and can be properly argued.

It should also be borne in mind that a helmet should be worn effectively. The case of Capps v Miller [1989] 2 ALL ER 333 involved an injured motor cyclist who failed to fasten his helmet and suffered from significant head injury. The medical evidence in this case did not allow a finding to be made as to the extent that the head injury had been made worse by the failure, however the court applied a deduction of 10% nevertheless.

If – and only IF – the medical/forensic evidence is that the use of a helmet would have prevented or lessened the injury sustained, then it may be open to the court to make a finding of contributory negligence. The discount level would be determined by the difference that the helmet would have made upon the nature and severity of injury.

Every day we see the positive outcomes that result from a rider wearing their helmet. We also sadly see the life-changing and tragic outcomes that come from a rider failing to wear one. It cannot be denied – wearing a helmet improves your protection against sustaining a brain injury. This is why Digby Brown encourages helmet use.

Diane Cooper

Partner, Digby Brown Solicitors