Capps v Miller

I will ask Lord Justice Croom-Johnson to give the first judgment in this case.

This appeal arises out of an accident which took place on 2nd March 1985 when the plaintiff, who was just a few days short of his 17th birthday, was on his moped near his home at about 11.20 at night. He had been out on his moped and he was stationary in the centre of the road about to turn right into the driveway of his home. While he was in that position he was run into from behind by a motorcar which was being driven by the defendant, who had just overtaken another vehicle at a speed, according to the judgment of Henry J. described by the passenger of that vehicle as being "fast but not excessively so". It is now common ground that it must have been between 30 and 40 miles an hour. He ran into the back of the motorcyclist and in his statement to the police he told them that he had not seen the motorcyclist. He also told the police at once that he had been drinking; he was breathalysed and his breath test reading recorded him at midnight as being 72 percent over the limit. He pleaded guilty to a charge of driving with excess alcohol.

Unfortunately the injuries to the plaintiff were serious. I will come to the injuries in a moment, but principally he received a blow to the head which resulted in brain damage as the result of the accident.

There was an issue at the trial whether or no the plaintiff at the time of the accident had on his head his helmet. There is no question that while he had been riding the moped it had been on his head and that was what was required by the Motor Cycles Protection (Helmets) Regulation 1980. But regulation 4(3) defines "protective headgear" as headgear which is securely fastened to the head of the wearer by means of the straps provided for that purpose. The difficulty in the present case was, as the judge was forced to find, that the helmet, although upon his head, was not fastened by the straps.

There was a considerable issue at the trial as to whether, when the head injuries took place, the helmet had been on his head or had already come off because it had not been fastened on by the straps. There were two explanations. That which was put on behalf of the plaintiff (for the plaintiff could remember little or nothing about the circumstances) was that he had been thrown up in the air, a fact which was deposed to by the passenger in the motor car of the defendant and that he had come down on the bonnet of the car and unquestionably his helmet had gone through and smashed the windscreen of that motor car. The helmet, was subsequently found on the lap of the passenger in the defendant's motor car. On that basis, when the head injuries were caused, at the time when the blow to the head took place his helmet, albeit unstrapped, was still on his head and that therefore no breach of one of the regulations would have been causative of the injury to his head.

The other explanation, which was that put forward on behalf of the defendant was that in the course of the blow by the motor car on the moped and in the course of the plaintiff being thrown into the air, the helmet had come off because it was not fastened and had smashed the windscreen in the way I have described, but the plaintiff, by now without any helmet on his head, had landed on his head on the road and so had suffered the brain injuries which resulted.

The learned judge investigated these alternative explanations with great care. The explanation depended in part on the fact that these helmets are specially designed so that if they receive a hard blow with the wearer's head inside the helmet, the lining is of a self destructive type and therefore it absorbs the shock. In the present case there was found to be absolutely no destruction or effect upon the lining of the helmet and there was nothing about the condition of the helmet which indicated that it had been on the plaintiff's head at the time.

There was also an explanation put forward that the plaintiff must have landed on the bonnet of the defendant's motor car and caused some damage to it. That was negatived by evidence and the learned judge found that that had not happened. In the result he came to the conclusion, and said so in terms, that he accepted the explanation given on behalf of the defendant as to how the accident happened, namely that because the helmet was not strapped on, it had come off before the head hit the road and that was the explanation of the brain injuries.

The brain injuries were dealt with in the evidence of Dr. Anthony Roberts, a Neurosurgeon, who was called as a witness. In a long report, and on the assumption that the accident happened in the way which ultimately the learned judge found that it had, he said this:

"If this is what happened then I am quite sure his brain injuries were a good deal more serious than they might have been had his helmet stayed on until his head made contact with the road inside it. The concussive forces imparted to his brain would have been substantially cushioned and he might well have escaped with no more than residual impairment of his memory, concentration and perhaps temper control, though possibly not even the latter."

He then went on to give his explanation of what had happened to cause such injuries as the plaintiff suffered. He said there had been impairment of the temporal and frontal lobes of the brain, worse on the right, and that was likely to have been caused by "the swelling of the bruised brain, subjected to shearing strains in its substance, and the swelling caused secondary damage by impairing blood flow and oxygen supply." He went on to say this:

"Had the force of the impact been absorbed to any extent, as it is likely to have been by his crash helmet,

(I interpolate to say, that means if it had been on his head at the critical moment)

then I think it virtually certain that much of the shear-strain brain damage would not have occurred, secondary damage the result of brain swelling would not have been so severe, and in all probability he would not have been so deeply unconscious for so long which impaired blood and oxygen supply to his brain further. This, of course, is all no more than assumption based on what is known about the value of helmets absorbing impact forces, and there is no way of measuring these so far as I know in the individual case in retrospect. I can only attempt as I have done to look at the type of brain damage he has sustained and offer a guess as to how much less it might have been on the basis of experience of the after effects of less severe uncomplicated closed head injuries."

He was cross-examined on that report, but what I have read in effect was the substance of the medical evidence ultimately accepted by the learned judge.

On behalf of the plaintiff another neurosurgeon, Mr. Holmes, was called. His evidence was directed to a different issue, which was not to deal with the worsening effect of the accident if it was caused without any helmet on the head, but more with the idea of showing that the helmet had been on the head and that the accident was therefore caused in the way which the plaintiff put forward and which the learned judge ultimately rejected.

What the learned judge found as a matter of fact was this. After putting forward the two contentions as to how the accident took place, he said:

"It is a matter which does not admit of any certainty, there being serious difficulties in each account. I am ultimately compelled to find that, on the balance of probability, the defendants' reconstruction of the accident is likely to be the correct one, namely, that it was a blow to the unprotected head tht caused the brain damage, that is to say, a blow with the helmet off."

(I interpolate to say that that necessarily means that he came down on the road and not on the motor car). The learned judge then goes on to say:

"It seems to me also that the probability is that the extent of the injuries would have been to some incalculable degree less had the helmet stayed on and it would have stayed on if the strap had been done up. Clearly, as I have said, it is a matter about which there can be no certainty, the case is one very close to the line either way, but on the balance of probabilities it seems to me that failure to do the strap up made some difference to the severity of the injuries sustained though it would be impossible to express a view as to what difference it would have made."

I should add that the learned judge's finding that the strap had not been done up was reinforced by the fact that there was no damage to the strap indicating that it had been done up, but had broken or in some way carried away in the course of the accident. The learned judge then went on to say:

"As I have said, while the accident was in no sense the plaintiff's fault but...