This is a copy of a press release issued when a cyclist from Liverpool, England won his claim for full damages despite a counter-claim that he was negligent for not wearing a cycle helmet. The defendant's insurers abandoned its counter-claim immediately before the trial, but it is interesting to note that the judge subsequently remarked that "it was not surprising that those allegations should be abandoned", suggesting that had that not been the case, the judge may well have ruled in the cyclist's favour.
PEARL ASSURANCE HOUSE
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 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:
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.
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 rejected.
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 a 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 QC, 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 PI and med neg cases.