As the warm weather of summer approaches, the number of cyclists enjoying Ottawa’s shared path system is increasing day by day. I have noticed that the number of cyclists wearing a helmet has been increasing year over year, but there are still a few foolhardy souls who are too “cool” or vain to don a protective helmet. I have even seen cyclists with their helmets strapped to their handlebars. What protection does that provide? How does the failure to wear a helmet affect a cyclist’s entitlement to compensation if they are injured through no fault of their own?
Put another way: How will a court assess a cyclist’s contributory negligence if they are injured in an accident and were not wearing a helmet?
Contributory negligence can arise in three ways.
- The plaintiff’s negligence may have been a cause of the accident because his acts or omissions contributed to the sequence of events leading to the accident.
- Although the plaintiff’s negligence is not a cause of the accident, the plaintiff has put himself in a position of foreseeable harm.
- The plaintiff may fail to take reasonable precautionary measures in the face of foreseeable danger.
We are considering the third type of contributory negligence: The negligent driver caused the accident but the cyclist failed to take a reasonable cautionary measure by not wearing a helmet.
An example of the third kind of contributory negligence is a party who was not wearing a seatbelt and is injured in a car crash. They may be found to be contributorily negligent because they failed to take a reasonable precautionary measure in the face of a foreseeable danger. This is known as the “seatbelt defence”.
In 2005, the Ontario Court of Appeal considered the appropriate approach to contributory negligence where a passenger was injured in a motor vehicle accident but was only wearing a lap belt and not a shoulder harness. At the time, the Highway Traffic Act required a car’s occupants to wear a seatbelt, but did not require them to wear the shoulder harness. At trial, the jury found that the passenger was 35% contributorily negligent for failing to wear the shoulder belt. The Court of Appeal held that the jury’s assessment of the passenger’s contributory negligence was “beyond the scope of anything that could be accepted as reasonable.” The court held that an apportionment of 25% represented the upper limit of the amount of damages based on contributory negligence in seatbelt cases. The allocation of responsibility between a plaintiff and a defendant in this type of contributory negligence case should not be based on “causation”, but rather must be based on “blameworthiness”. The passenger’s appeal was allowed and the court reduced the assessment of contributory negligence to 5%.
In a similar fashion, Courts have apportioned liability to cyclists on the basis of contributory negligence where there was a failure to wear a helmet. Courts have, however, been reluctant to apportion liability for the failure to wear a helmet unless there is evidence connecting the injury sustained to the failure to wear a helmet. For example, in Abou-Marie (Litigation Guardian of) v. Baskey, 2001 CarswellOnt 4337 (Ont. S.C.J.), a ten-year-old was severely injured when her bicycle was struck by a pick-up truck. The court found that her failure to look before entering the road constituted contributory negligence. She was also not wearing a helmet. On this issue, the court noted that wearing a helmet was not mandatory at that time and that, in any event, there was no evidence that the outcome would have been any different if she had been wearing a helmet. As a result of her failure to look, the court apportioned her percentage of liability at 30%.
Similarly, in Repic v. Hamilton (City), 2009 CarswellOnt 6796 (Ont. S.C.J.) (affirmed by 2011 CarswellOnt 4458, 204 A.C.W.S. (3d) 205 (Ont. C.A.) and additional reasons in 2011 CarswellOnt 11734, 208 A.C.W.S. (3d) 673 (Ont. S.C.J.)), the court failed to find a cyclist contributorily negligent for not wearing a helmet given that there was no evidence that the head injury he sustained would not have occurred if he had been wearing one. The cyclist was, however, found to be contributorily negligent for all of the following reasons:
(a) he did not stop before entering the exit ramp;
(b) he was riding a bicycle which did not have any lights;
(c) he was riding a bicycle at night while wearing dark clothing;
(d) he either did not look, or failed to look properly, for oncoming traffic before entering the road; and
(e) he did not see the vehicle because he did not look properly.
The cyclist was found to be 45% liable for the accident.
In Noseworthy v. Ontario (Superintendent of Insurance), 1998 CarswellOnt 3391 (Ont. Gen. Div.), the court held that the fact that a cyclist was not wearing a helmet at the time of the accident was “irrelevant” because he was not on the highway. Given the trend towards wearing a helmet while cycling, and the fact that it provides protection against injury whether the cyclist is on a highway, a paved path, or a dirt trail, I do not think that this case would be decided the same way today.
A number of Ontario cases have addressed the potential contributory negligence of a cyclist injured while not wearing a helmet. However, the cyclists inevitably were found to have engaged in other negligent acts which contributed to the accident and their injuries. A good example is White v. Aransibia, 2003 CarswellOnt 2411,  O.J. No. 2580,  O.T.C. 586, 124 A.C.W.S. (3d) 219. In this case, the trial judge found that the injured cyclist was traveling at an excessive rate of speed into a pedestrian crosswalk, was not wearing any reflective material, did not have a light or reflectors on his bicycle, and continued into the crosswalk without stopping and getting off of his bicycle. In addition, his injuries were contributed to, in part, by his failure to wear a helmet. The court found that both parties were equally negligent in causing the accident and in causing the injuries. Liability for the accident was apportioned 50/50.
There has been a dramatic improvement in the design and construction of cycling helmets over the past 20 to 30 years. The old Bell Helmet, with its bulk and lack of airflow, has been replaced by a variety of lightweight, well-ventilated, models. Lack of comfort is no longer a reasonable excuse for not wearing a helmet while cycling.
Should you choose to forgo the protection offered by a helmet, and be unfortunate enough to sustain a brain injury in an accident caused by the negligence of someone else, you can expect a finding of contributory negligence which could reduce the damages you are entitled to by up to 25%. Brain‑injured plaintiffs often have claims worth several million dollars so a 25% reduction because you refused to wear a helmet could cost you well over a million dollars in lost compensation. This could mean the difference between having sufficient funds to meet your family’s living expenses and the cost of your future care and a life of financial distress so please think twice before venturing out on your bike without a well‑fitting helmet, strapped snuggly to your head.