Smith v Finch

A party may plead an alternative factual case based on material advanced by the opponent where there is an evidential basis and no unfair prejudice. The court may dispense with verification by a statement of truth under the Civil Procedure Rules. A cyclist’s failure to wear a helmet may constitute contributory negligence even though helmet use is not compulsory. The defendant must prove both a failure to take reasonable care and a causal contribution to the injury. Expert evidence must establish that the helmet would probably have prevented or reduced the relevant injury.

The claimant and defendant each claimed damages after a collision between a bicycle and a motorcycle. The trial concerned liability only. The defendant sought permission to amend his defence to plead, in the alternative, that the claimant had been negligent if the claimant’s account of his route was accepted. The court also had to determine responsibility for the collision and whether the claimant’s failure to wear a cycle helmet amounted to contributory negligence.

1. The court permitted the defendant to amend his defence. An alternative case based on the opponent’s pleadings or evidence may be allowed where there is an evidential basis and the amendment causes no prejudice. The requirement for verification by a statement of truth was dispensed with under Civil Procedure Rules 1998, CPR 22.1(2), consistently with the overriding objective.
2. On the evidence, the claimant had been cycling properly along Samson’s Road. The defendant was travelling substantially above the 30 mph limit and overtook too closely. The collision was caused entirely by the defendant’s excessive speed and manner of overtaking. The defendant’s Part 20 claim and allegation of contributory negligence arising from the claimant’s riding were rejected.
3. The observations in Froom v Butcher [1976] 1 QB 286 applied to cycle helmets. A reasonable cyclist may be expected to wear a helmet even where legislation does not make helmet use compulsory. Failure to do so may contribute to the resulting injury, subject to proof of causation.
4. The burden rested on the defendant to prove both that the claimant failed to take reasonable care for his own safety and that the failure contributed to the damage, applying Lewis v Denye [1939] 1 KB 540. That burden was not discharged. The medical evidence did not establish that a helmet would have prevented or reduced any injury responsible for the claimant’s residual disabilities. No deduction was therefore made for contributory negligence.
5. There was judgment for the claimant on both the claim and the Part 20 claim, subject to damages being assessed if not agreed.

not stated in the judgment.