Cyclist without a helmet wins case despite RoSPA [Royal Society for the
Prevention of Accidents] report
PEARL ASSURANCE HOUSE
DERBY SQUARE, LIVERPOOL L2 9XX
EC/09/99 17th November 1999
In personal injury cases where the victim is a cyclist, the question of
whether a protective helmet was worn at the time of the accident often
becomes a critical issue when considering liability. In one recent case
Bill Braithwaite QC stood firm in pursuing a claim for a brain-injured
cyclist, despite pressure, to accept liability on behalf of his client.
The outcome was that the claimant will recover 100% of his damages, despite
a detailed report from the Royal Society for the Prevention of Accidents,
submitted by the defendant.
Brian Williams v Jacqueline Ashley
Brian Williams was born on 1st March 1950 and was 46 when he was
seriously injured in a road traffic accident on 7th July 1996. His case
came for trial of liability in October 1999 and raised several interesting
points relating to the wearing of protective and conspicuous clothing as
well as the issue of indemnity costs. Mr Williams was cycling along a
fairly minor country road in North Wales when the defendant drove her car
along an even more minor road, up to the junction with the road Mr Williams
was on, and drove straight out without stopping, directly in Mr Williams'
path. Sadly, when he then collided with the defendant's car, he was thrown
over the car onto the road, sustaining extremely severe brain damage. The
claimant had no recollection of the accident, but by the most enormous
good fortune there was an independent witness who was able to dispute
the defendant's denial of careless driving, coupled with her accusation
that the claimant was himself negligent by riding too fast, with his head
down and not looking where he was going and failing to see her approaching
However, the two major allegations of contributory negligence were that
the claimant failed to wear a cycle helmet, and failed to wear fluorescent
or conspicuous clothing. Each side obtained expert evidence, which was
served in the early part of 1999 pursuant to the directions order. The
claimant relied on Dr Nigel Mills, who has vast experience in helmets,
having been, amongst other things, the chairman of the British Standards
Institution committee for motorcycle helmets in January 1994, and a member
of the umbrella committee which oversees all helmet committees. He concluded
The defendant obtained a report from Mr Kevin Clinton, a project manager
in the road safety department of the Royal Society for the Prevention of
Accidents (RoSPA). His 26 page report, which dealt with the background
history in relation to helmets and cycling clothing, appeared to support
the proposition that in 1996 it was negligent not to wear a helmet when
cycling, and that it was also negligent to wear inconspicuous clothing.
- there is no legal requirement to wear a helmet
- helmets are less effective when a cyclist hits a vehicle than when
he simply hits the road, and helmets do not eliminate injury
- serious brain injury is quite common when cyclists are hit a glancing
blow by a vehicle, as distinct from a direct collision
- the site of the impact on the right side of the face would not have
been protected by a helmet
- the claimant's head injury was due to the right side of his face
hitting the road, and a helmet would not have reduced his injuries
- a report in 1994 found that most cyclists do not wear helmets.
In June 1999 the defendant's solicitors offered to settle the claim (which
is likely to be very substantial) at 80% of full liability, on the basis
that the claimant was himself 20% to blame. We rejected the offer, and it was
followed by a Part 36 offer in August 1999, that the defendant would accept 90%,
the claimant being responsible to the extent of 10%. That offer also was
As cyclists' helmets and cyclists' clothing are potentially contentious
and difficult issues, many people might have been persuaded to settle,
particularly bearing in mind the financial pressures on privately paying
clients involved in substantial litigation.
Two days before trial, in a skeleton argument which was not received by
anyone on the claimant's side until the morning of trial, the defendant
abandoned the allegation of failure to wear conspicuous clothing. At
10.25am on the morning of trial, the Judge having expressed the view that he
wanted to start promptly at 10.30am, the defendant abandoned the helmet issue.
The Judge (His Honour Judge Rogers QC, sitting as a Deputy High Court
Judge) commented that it was not surprising that those allegations
should be abandoned. However, the claimant's wife, his litigation friend, was.
Like most claimants, who have never before been exposed to the process of civil
justice, she had no idea that brinkmanship operated to such an extent in
litigation concerning the destruction of a man's life.
In addition to the issue whether it was negligent in 1996 to fail to
wear helmet, there was also a causation point: Dr Mills said that a helmet
would not have protected the claimant from the injuries he sustained. The
defence argument was that Dr Mills was not qualified to express an opinion on
this point, and that there would need to be a detailed explanation of
precisely how the brain injury was caused.
There must be many cases in which cyclists are blamed for failing to wear
a helmet, and failing to wear conspicuous clothing, and therefore it may
be worthwhile for practitioners to be aware that even a detailed report
from RoSPA will not necessarily be sufficient to win the point.
Another point of practice which is also worth noting: when we had won
the trial on the only remaining issue, namely failure by the claimant to
look where he was going, we asked for indemnity costs, because we had
responded to the defendant's part 36 offer by writing in reply "by way of
counteroffer under Part 36", proposing that the defendants submit to
interlocutory judgement. In other words, we felt that the claimant should
recover 100% of his damages. The Judge decided that our view was correct;
we submitted that he had power to make an award for indemnity costs. The
defence argument was that, in order to come within the jurisdiction of rule
36.21 you had to do better than your offer (because the rule starts "This rule
applies where at trial - (a) a defendant is held liable for more; or (b) the
judgement against a defendant is more advantageous to the claimant, than the
proposals contained in a claimant's Part 36 offer"), and because we had
got precisely what we offered to take, we had not done better, and therefore
the Judge did not have jurisdiction to award indemnity costs. Although the
argument was never put in quite this way, it followed that, if we had offered
to accept 99.9% recurring, the Judge did have jurisdiction, but because we
asked for 100%, the Court was powerless. The Judge rejected that contention.
The defendant asked for, but was refused, permission to appeal.
Bill Braithwaite QO, the consultant editor of Kemp & Kemp, who practises
from Liverpool, Manchester and London, led Anthony Goff. They were instructed
by Richard Jones of Gamlins.
Bill Braithwaite is a specialist in brain and spine injuries. In May
this year he featured in a Channel 4 documentary which examined the
tactics used by insurers, and their defence teams, to delay or minimise
payments to claimants in P1 and med neg cases.