Capps v Miller (1989)

The pursuer, a 16 year-old boy, was struck from behind by the defender’s car whilst riding his moped at night. The defender was driving with excess alcohol in his blood and had just overtaken another vehicle at speed. The pursuer was positioned in the middle of the road about to turn into his driveway when the collision occurred. He was wearing a crash helmet, but the strap was unfastened. The impact on hitting the ground caused the pursuer to sustain severe head injuries which resulted in brain damage.

Before a single Judge, it was held that the collision had been caused entirely by the defender’s negligence. The failure of the pursuer to fasten the strap of his helmet, as required by the Motor Cycles (Protective Helmets) Regulations 1980, was deemed "almost forgiveable"; and although his failure to secure his helmet had intensified the severity of his brain injuries, it was impossible to say how much it had done so.

The defender appealed this decision, claiming contributory negligence on the part of the pursuer. The appeal was allowed and the pursuer’s damages were reduced by 10% accordingly.

It was emphasised by the court that the pursuer’s failure to fasten his helmet constituted a breach of statutory duty, and that his injuries would have been less serious had he fastened it. In light of this, it was appropriate to reduce the award of damages.

The full decision can be read here