CYCLISTS' HELMETS AND CLOTHING
CASE REPORT
Mr Brian Williams was born on the 1st March 1950 and so was 46 when he was grievously injured in a road traffic accident on the 7th July 1996. His case came on for trial of liability on the 22nd October 1999, and raised some interesting points which practitioners might find of value.
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 negative 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 the junction.
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 that
there is no legal requirement to wear a helmet
the site of the impact on the right side of the face would not have been protected by 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 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 cyclist do not wear helmets.
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. His report extended to 26 pages, dealing with a good deal of background history in relation to helmets and cycling clothing, and might have been thought to support the allegation that it was negligent in 1996 not to wear a helmet when cycling, and that it was also negligent to wear inconspicuous clothing.
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 that offer, and it was followed by a Part 36 offer, in August 1999, that the Defendant should accept 90%, the Claimant being responsible to the extent of 10%. That offer also was rejected.
So far, this is just another history of "negotiations", but it is worth remembering that both cyclists' helmets and cyclists' clothing are potentially contentious and difficult issues, and many people might be 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 10.30, the Defendant abandoned the helmet issue.
The Judge (His Honour Judge Rodgers Q.C., sitting as a Deputy High Court Judge) commented that it was not surprising that those allegations should be abandoned, but I expect the Claimant's wife, his litigation friend, was surprised. Perhaps she did not realise 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 a helmet, there was also a causation point: Dr Mills said that a helmet would not have protected the Claimant from the injuries which 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 know that even a detailed report from the Royal Society for the Prevention of Accidents will not necessarily be sufficient to win the point.
Another point of practice arose. 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 judgment. In other words,
we felt that the Claimant should recover 100% of his damages. The Judge having
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 judgment 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 had (sensibly, in my opinion) asked for 100%, therefore the Court
was powerless. The Judge rejected that contention. As a matter of interest,
it was also submitted that the abandonment by the defence of the helmet and
clothing points at the very last minute, having assured the judge at the case
management conference that the helmet point was a live issue only 5 weeks earlier,
amounted to conduct which entitled the Judge to make an award of indemnity costs.
The Judge rejected that submission, and held that the Defendant was entitled
to conduct her defence on the basis that, even though they abandoned the helmet
and clothing points, nevertheless there was still an issue as to whether the
Claimant was looking where he was going. The Defendant asked for, but was refused
permission to appeal.
26 October 1999
BILL BRAITHWAITE Q.C.
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