Legal Update Autumn 2011

This update has to return to the thorny issue of contributory negligence on the part of a cyclist for not wearing a cycle helmet. The issue arose in unusual circumstances in the case of Reynolds v Strutt & Parker LLP [2011]EWHC 2263. Judgment was delivered by His Honour Judge Oliver-Jones QC (sitting as a deputy Judge of the High Court – and apparently sitting in the Chancery Division!). The case has, in addition, implications for those who organise cycle races.

Mr Reynolds brought what, on the face of it, might be thought an ambitious claim against his employers for not making him wear a cycle helmet so as to protect him from the consequences of his own recklessness when taking part in a cycle race. The cycle race was organised by Mr Reynolds’s employers, a well known estate agency, and formed part of a social afternoon of team bonding. As part of the fun, Mr Reynolds and his co-workers were not told of the nature of the day’s events until they arrived at the site where the activities were to take place.

The race was between only four competitors and took place on a 3.5 km, 6 to 8 metre wide, closed road racing circuit at Fowlmead Country Park (built on the site of the former Betteshanger Colliery near Deal, Kent.)

Much of the Judgment is taken up with a discussion as to whether there was an adequate risk assessment with what appears to be an assumption all round that such an assessment should require the use of helmets. The Highway Code recommendation about helmets is not of course directly relevant since the race was not on the Highway. Instead there was reference to a Health and Safety Executive recommendation that cycle helmets be worn. Unfortunately the Judge does not indicate where this recommendation is to be found. Some of the witnesses clearly thought that there was a relevant HSE recommendation. At one point the Judge refers to ‘the recommended use of helmets by the HSE, which itself was, in my judgment ignored’ and at a later point that one witness ought to have discussed with his colleagues ‘what was said to be an HSE recommendation for the use of helmets’. There appears to have been a very curious failure to get to the bottom of what the HSE did recommend and how. I am not aware of any HSE guidance on the topic and perhaps if any reader is they would be kind enough to post a comment with the reference.

Possibly the rather sketchy consideration as to whether helmets should be worn is explained by the fact that the Claimant’s case against his employer depended upon proving that they were in breach of duty in failing to provide a helmet and the employer was in turn running a contributory negligence argument that Mr Reynolds was at fault in not wearing a helmet.  Furthermore on the Defendant's version of the facts they had advised Mr Reynolds to wear a helmet. There was nobody there then to interfere with the cosy consensus that helmets should have been worn.

Obviously the competitors themselves did not have helmets (or presumably any other cycling kit) as they did not know they were going to be racing until they got to the Park. The Park had some helmets and, on the Judge’s findings, when presented with their bicycles the twelve competitors were told that helmets were available, but were not encouraged, still less required, to wear them. Apparently only one of the 12 competitors in the event wore a helmet. The deeply unattractive prospect of putting on a helmet in which somebody else has raced does not appear to have struck anybody in Court.

The 12 racers were split into groups of 4 who competed, as two teams of two, in heats so the race in which Mr Reynolds was injured started as a four horse race. It appears that Mr. Reynolds led much of the way but the tactically more savvy colleague, one Mr Cracknell, looked like passing him in the sprint for the line. The Judge found that Mr Reynolds then made a deliberate decision to prevent Cracknell passing him and forcing him to brake. ‘He was making a deliberate decision to behave in an aggressive manner, reckless as to the consequences.'  As every racing cyclist knows the deliberate blocking of a rival, especially in the sprint is, absolutely not on, highly dangerous and almost certain to end in disaster. So it was in this case: Mr Cracknell was fortunately uninjured (had he been injured he could presumably have sued Mr Reynolds); Mr Reynolds unhappily was injured sustaining a serious brain injury.

Causation was addressed in as perfunctory manner as the assumed need to wear a helmet and for similar reasons. The Defendant did not have an expert at all and the Claimant had no medical evidence (described as a fundamental evidential omission by Griffith Williams J in Smith v Finch). The Claimant did have evidence form Dr Bryan Chinn (the same expert who gave evidence for Mr Smith to the effect that a helmet does not protect in a high speed impact). On this occasion he gave evidence that a helmet would have helped because the speed with which Mr Reynolds’s head struck the ground was within the range where use of a cycle helmet was effective. There was, however, a notable absence of a finding as to the speed at which Mr Reynolds’s head did strike the ground, and it seems improbable that it was less than the 12 mph standard to which helmets must conform. Possibly with an eye to the argument to be run that Reynolds was himself at fault in not wearing a helmet the Defendant ultimately conceded that the absence of a helmet was causative of some injury (how some injury differed from the actual injury was not further explored).

These findings of breach (carelessness) and causation were necessary both for a finding of liability against the Defendant employer for not encouraging/requiring the Claimant to use one of those proffered helmets and also for a finding of contributory negligence against the Claimant for not wearing one of those helmets. The ultimate division of responsibility was one third (Defendant employer) and two thirds (Claimant Mr Reynolds) so that the Claimant recovers one third of the dmages he would have got if the Defendant was wholly liable. Given that Reynolds had deliberately and recklessly blocked his opponent one has to assume that the deduction for not wearing a helmet was marginal compared to the deduction required for deliberately reckless cycling (the two elements were never separated out).

For reasons expressed above the Judgment is not really a satisfactory authority for anything. It will perhaps reinforce upon race organisers a need for a risk assessment to contain provision for requiring the use of cycle helmets. It has no sensible bearing upon the situation where a motorised vehicle collides with a cyclist.

Final thought: is it better that people race without helmets or that they do not race at all; a consideration relevant to section 1 of the Compensation Act 2006?  The Judge thought requiring helmets would not put people off taking part in this type of recreational activity; maybe not if you have your own helmet.
So far as I am aware there is no appeal against this decision.  In his litigation, at least, Mr Reynolds has been fortunate.

My Spring update dealt with another helmet case, Phethean-Hubble v Coles. This case is due to come before the Court of Appeal in late November though I doubt that the helmet issue will feature prominently.