In his view that it matters not that there is no legal compulsion, Griffith Williams J, has departed from the, admittedly obiter, view of His Honour Judge Brown sitting as a deputy judge in the High Court in A (a child) v Shorrock [2001] All ER (D) 140 (Oct). In that case the claimant cyclist failed to prove that the defendant had been responsible for the accident. However, if he had found liability the judge would have made no deduction for contributory negligence for failure to wear a cycle helmet as there was no fault: the use of a helmet not being mandatory and the type of cycling by the claimant not being unusually hazardous.

It can be countered that the issue is not so much one of legal compulsion but (as with seat belts at the time of Froom) of advice given in the highway code; a document endowed with particular legal significance by the Road Traffic Act 1972 which provides that the highway code can be used as tending to establish or negative civil liability. However, in sharp distinction to seat-belts, there are reasons why a rational cyclist will, either occasionally or habitually, wish to exercise his right not to follow the optional advice that the highway code provides.

The efficacy of bicycle helmets is a hotly disputed topic. The debate as to efficacy clearly featured to some extent in Smith v Finch since the judge was well aware, when making his findings on causation, that a helmet certified to the appropriate British and European Standards is tested to impact speeds of only 12mph. In finding that “there can be no doubt that a failure to wear a helmet may expose the cyclist to the risk of greater injury”, the judge does not appear to have had before him the research, conducted both abroad and in the UK, that indicates that there is no demonstrable link between the incidence of helmet wearing and the safety of cyclists.

The threshold for a test of “may expose to risk” is inappropriately low in any event. Hospital statistics reveal that far more head injuries are sustained by pedestrians and motorists than by cyclists. There can be no doubt that a failure by a motor vehicle occupant, or a pedestrian crossing the road, does—not may—expose those individuals to risk of increased injury. As so often in human activity, risk perception is skewed. Cycling is not a dangerous activity; per mile travelled it is safer than walking even in London. Furthermore the expectation of life of a non-helmeted regular cyclist is substantially greater than that of a sedate contemporary. The message that cyclists who do not wear helmets are at fault is counter-productive in that it feeds the distorted risk perception of cycling, thereby discourages it as a means of transport and recreation and, by driving down cycling numbers, increases the risks in a vicious circle.

Cycling is not a dangerous activity. The most that can be said is that cyclists, like pedestrians, are vulnerable to the mistakes of motorists. A proper appreciation of the responsibility of motorists, to avoid collision with cyclists, should make any choice of the victim not to wear a helmet pale into insignificance. There is emerging evidence that one of the reasons for an absence of correlation between rates of helmet wearing and cyclist safety is that helmet wearers are more likely to have accidents. One researcher has measured motorists passing him more closely when he is helmeted than when he is not.

Decisions whether to take a bike or some other form of transport are sometimes finally balanced. Care needs to be taken given the overwhelming public interest that cycling be encouraged as an alternative to other means.

Further a move towards compulsion undermines the viability of cycle hire schemes presently under consideration in many UK cities. Any restriction of these schemes to a handful of riders who happen to have helmets in their possession removes the whole concept of spontaneity.

It is not clear that the judge recognised the extent to which his judgment will undermine his observation that a cyclist is free to choose whether or not to wear a helmet. The threat of losing 15% (or conceivably more) of the damages that would otherwise properly be due, were the worst to happen, is a far greater sanction than a £30 fixed penalty notice (the greatest likely criminal sanction were riding without a helmet to be criminalised). Many within the cycling community are rightly aghast at the implications of this ruling.