The Mayor of London, Boris Johnson has recently expounded: “goggles, yet; a woolly hat, yet; but a helmet – not on your nelly”, in a recent article for the Telegraph. He was of course commenting on what he somewhat characteristically termed the “elf and safety madness that is sweeping our culture”, in relation to the growing trend for skiers to wear helmets. However he raises some interesting questions for the PI practitioner considering the extent of an injured party’s contributory negligence. Whilst motorcycle crash helmets are obligatory, cycle helmets, skiing helmets and indeed other forms or protective equipment are not.
Is it thus reasonable for courts to hold that an injured party negligently contributed to his or her injury by exercising a free choice not to wear a cycle/ski helmet, even if such apparel is ‘recommended’ or ‘best practice’? Should defendants in such cases simply have to take their victims as they find them?
The case of Smith v Finch  EWCA 53 applied Lord Denning’s reasoning in Froom & Ors. v Butcher  QB 286, the well known case dealing with contributory negligence and a failure to wear a seatbelt, which were not obligatory at the time, but were ‘recommended’. Griffith Williams J in Smith held a cyclist claimant who was run down by a motorcyclist was at fault for failing to wear a helmet. Cycling helmets may be one thing, but what about cycling gloves; squash goggles; motorcycle leathers; rugby scrummage caps; or car seats for short children over 12?
The questions courts and practitioners will routinely have to ask themselves include:
· When does it become reasonable to expect a party to exercise a choice to wear purely optional safety equipment?
· Where is the point where a free decision not to wear such equipment becomes capable as sounding in contributory negligence?
· Is it, as Boris’ article suggests, when it is not a case of everyone else looking odd by wearing such equipment, but when it is you, for not wearing it?
Despite the judgment in Smith, these questions have yet to be fully answered.
Boris’ article is available at: