James Knight from our Complex Injury Team had an noteworthy trial outcome in the Wrexham DR in March in which a passenger on a quad bike was found 30% to blame for his injuries.

The case revolved around a personal injury claim by Mr Owens (the claimant) who had been one of three passengers on a single-person quad bike driven by Mr Lewis, the defendant and our client's insured.

Accident

The claimant was about 16½ at the time of the accident. The defendant was only 15. They, together with their two friends, had agreed to go rabbiting that evening with their terrier dogs. When the claimant arrived at the farm, he was met by the defendant and two others. The defendant had a single-person quad bike with him and they agreed (albeit reluctantly, according to the claimant) to drive to their destination. The claimant said he expected the defendant to drive across fields to get there, but the defendant took them on to the main road. The claimant and another were sitting behind the driver on the rear of the quad bike, each holding a terrier.

As the bike was being driven along the road at between 20 and 30 mph the claimant, perhaps unsurprisingly, lost his grip, fell off and was injured. The claimant suffered a fractured skull, subdural haematoma, post-traumatic amnesia lasting just over a week, loss of taste and smell and potential balance problems. The claimant had no memory of the accident.

Causation

Both sides called neurosurgery experts. Unsurprisingly, attention focussed on what the difference the wearing of a suitable helmet would have made to the claimant's head injuries. The experts were agreed that the evidence showed the claimant had suffered a fractured skull with a TBI which was moderate to severe. This had been caused by both linear and rotational forces. A motorcycle helmet would have been suitable protection and, had the claimant been wearing one, the injuries apart from the TBI would have been avoided. The effect of the TBI itself would have been mitigated by wearing a helmet but the experts disagreed as to how much.

The claimant's expert thought that the way that helmets are tested did not take into account the dynamic forces involved in an accident like the claimant's. The defendant's expert did not agree. His view was that evidence suggested that there were real-world benefits to wearing a helmet and, had the claimant done so, the initial TBI would have been reduced from severe to moderate with no lasting organic brain injury.

Liability/contributory negligence

The defendant admitted he was negligent in carrying the claimant as a passenger on a quad bike which was not designed to carry any. He denied he was negligent as to the manner in which or the speed at which he drove the bike. Further, the defendant said that the claimant had been negligent in agreeing to be carried on the bike in the first place, positioning himself in such a way as to make it very likely he would come off, and by not wearing a helmet the defendant said that this merited a deduction for contributory negligence of 65%.

The claimant admitted he was at fault in agreeing to be carried as a passenger and had exacerbated this by not wearing a helmet, but said this should only mean a deduction of 20%.

The judge, HHJ Keyser, made findings of fact which went to his eventual decision on contributory negligence:

• It was the defendant's idea to use the quad bike.
• The defendant was neither licensed nor insured.
• No helmets were available and there was no discussion about wearing them.
• The claimant did not express any reluctance to ride on the quad bike or any wish to walk.
• The claimant knew that the bike was not designed for carrying passengers.
• The defendant was driving at a speed of about 25 mph to 30 mph when the accident occurred which was excessive. Even his lower estimate of 20 mph was too fast.
• The claimant's inadequate handhold with nothing else to secure him was inherently precarious.

Decision

The judge considered the culpability of the defendant in the light of the admission of primary liability. The defendant's carrying of passengers was particularly negligent in the circumstances and the defendant's driving at what the judge had found was an excessive speed was a further instance of his negligence. Even judging the defendant's actions by what was expected of the "ordinarily reasonable prudent" 15 year-old boy, what he did was clearly negligent.

The judge noted the claimant's admission that he had been contributory negligence and characterised the defendant's arguments as aspects of one complaint rather than three separate issues, i.e. it was unsafe to take a ride on the quad bike at all, but especially when he would be doing so when sitting on the rack, holding on with only one hand and without a helmet.

Having said this, the greater blame lay with the defendant. Although a little older than the defendant, the claimant did not have the same level of experience as the defendant when it came to using quad bikes and the claimant, in effect, deferred to the defendant. This was not akin to those cases involving joint criminal enterprise; rather, it was similar to the drink-driving cases where the primary blame attached to the driver rather than the person at risk because of the driving of the vehicle.

The judge was not persuaded by the claimant's argument that his contributory negligence should be less than 20%, (based on cases involving drink-driving) and concluded that 30% was appropriate in the circumstances.

Points to consider

The court did not regard the circumstances of this case as being akin to passengers getting into a vehicle with a drunk driver for which the usual deduction is 20%.

The manner of the defendant's driving will be factored into assessment and the slower or safer the defendant is driving suggests that the claimant faces the risk of a higher percentage deduction.

While the helmet point was a more minor one in our overall case, there are useful comments surrounding the evidence:

• The judge accepted our expert's view that helmets are tested for both linear and rotational forces. The effect of a tangential or rotational glancing blow to a helmet is part of the testing process. Helmets can therefore protect against both linear and rotational forces, essentially mitigating the effect of a TBI.
• The claimant's expert had rather misunderstood what tangential forces are.
• The judge again accepted our expert's evidence that the glossy surface on a helmet is designed to avoid friction and thus reduce the changes in direction caused by linear and rotational forces.
• The claimant's expert's evidence that rotational forces were not part of the testing regime for motorcycle helmets tested was not accepted. The judge found that the effect of rotational forces can be mitigated by wearing a helmet.
• The claimant pleaded that he had suffered a Diffuse Axonal Injury (DAI) which, his expert said, was due to the effect of rotational forces experienced during the accident. In fact, the judge preferred our expert's evidence that the injuries which the claimant suffered were due solely to linear forces reinforcing our view that, in fact, the claimant had not suffered a DAI.