Slater and Gordon on contributory negligence

[Psamathe]

.....
Whatever the action/inaction, if there is current thinking which is flawed, harmful to cycling and not precedence, then surely a good solicitor with our best interests at heart would be challenging and seeking to change that flawed thinking, rather than pandering to it by implying we should harm ourselves and the public?

Just read your post after my previous post and I agree. If nobody ever presents counter arguments to flawed thinking then nothing will ever change and solicitors seeking to represent cyclists should be in there arguing the case and pointing out the shortcomings of e.g. helmets and contributory negligence.

Ian

[squeaker]

Wasn't that the issue the op had? An issue with the helmet comment, which kind of makes it a thread about helmets too.

Happy for the thread to be moved to the naughty corner I was pointing out that the video, not necessarily the preview text, seems to imply that not wearing a helmet may be regarded as contributory negligence in the case of personal injury (as a generality, not necessarily by Slater and Gordon, which I suspect is their defence ).

NB: I'm not a lawyer (obviously), so I may be misunderstanding some of the words... However I suppose nowadays that 'The man on the Clapham omnibus' might regard it as reasonable for anyone on a bicycle to wear a helmet AKA, 'we're stuffed'

[The utility cyclist]

This is disgusting victim blaming bulls@@t that has massive ramifications, CUK should drop them like a stone
If they as a 'legal' firm - I won't say law because obviously they are not interested in law, cannot simply use other walks of life as examples where not wearing a helmet had made any impact on negligence to dispel that not wearing of helmets would have a contributory effect solely on bike AND also to look at the actual potential reduction in forces to reduce brain injury etc then they clearly aren't worth spit.

if CUK do not act to either get S&G to change tack or get rid of them completely and replace with an organisation that will stand up for our rights to be protected then this would be enough for me to stop my membership, nothing CTC/CUK have done before would have made me consider that but this takes the absolute micturate

DO NOT MOVE THIS TO THE HELMET THREAD!
This is about case law and protection of cyclists, shoving it out the way so that the majority won't see it is wholly wrong

[thirdcrank]

[quote="Psamathe"] ... Just read your post after my previous post and I agree. If nobody ever presents counter arguments to flawed thinking then nothing will ever change and solicitors seeking to represent cyclists should be in there arguing the case and pointing out the shortcomings of e.g. helmets and contributory negligence. ... [quote]

This is what I was trying to get at when I answered the "interests at heart" point. It would be unlikely that a specialist ATE insurance company would take any other than a commercial view: they'd soon be out of business otherwise. The whole purpose of a trades union is to look after the interests of its members and it's unsurprising that they have contributed to changing the law in favour of their membership and workers more generally. As this can involve a trip through the appeal courts it can be expensive, which takes us back to the value of membership.

I don't know if the charity status of Cycling UK affects this.

I think it's a lawyer's duty to advise a client about things like the prospects of success before spending too much of the client's money. Simply taking the money on a no-hoper would be outrageous. Fulminating doesn't affect this a jot.

[Psamathe]

... Just read your post after my previous post and I agree. If nobody ever presents counter arguments to flawed thinking then nothing will ever change and solicitors seeking to represent cyclists should be in there arguing the case and pointing out the shortcomings of e.g. helmets and contributory negligence. ...

This is what I was trying to get at when I answered the "interests at heart" point. It would be unlikely that a specialist ATE insurance company would take any other than a commercial view: they'd soon be out of business otherwise. The whole purpose of a trades union is to look after the interests of its members and it's unsurprising that they have contributed to changing the law in favour of their membership and workers more generally. As this can involve a trip through the appeal courts it can be expensive, which takes us back to the value of membership.

I don't know if the charity status of Cycling UK affects this.

I think it's a lawyer's duty to advise a client about things like the prospects of success before spending too much of the client's money. Simply taking the money on a no-hoper would be outrageous. Fulminating doesn't affect this a jot.

Probably a bit off-topic but around 8 years ago I "took somebody to court" for a non-cycling case. My solicitor offered me a No Win No fee basis but on reading the small print and then double checking with the solicitor it seemed that on winning they recover their costs from the defendant BUT if the defendant does not have the means to pay (or assets to seise) then their costs revert to me. I don't know if this is standard or unusual but given the person I was pursuing was probably over mortgaged, etc. and given the solicitors fees were much higher under No win No Fee I decided safer bet to go with standard I pay the bills and recover my costs through the court (which in effect I did). I can see if you are pursuing somebodies insurance company or a significant company then there is minimal risk, but pursuing a private individual and risk of them not having (or no longer having) the assets to pay might affect somebodies choice.

Ian

[gaz]

CDF on contributory negligence: https://www.cyclistsdefencefund.org.uk/ ... negligence

[Igobybike]

Well as I see it they were simply explaining how the law on compensation works - primary liability has to be established, then the defendant will look for any excuse to allege 'contributory' negligence in reduction of their liability. This "could" include a suggestion that failing to wear a helmet (among other examples) contributed to the victim's loses. Undoubtedly, reviewing the link in the post above, insurance companies do this and successfully achieve discounts on settlements on the basis of no helmet and will no doubt continue to do so, whether we like it or not. This video is very short and attempts to say nothing in any level of detail at all about the merits of such an argument. It is simply a plain and very brief statement as to what happens in cases where compensation is sought for alleged negligence.

[squeaker]

CDF on contributory negligence: https://www.cyclistsdefencefund.org.uk/ ... negligence

Good read: thanks

[thirdcrank]

I suspect that "no helmet" is one of a list of things routinely alleged by an insurance company at the initial stage when junior clerical staff are firing off the tick-box response denying responsibility. At some stage they will either pay up or fight on, based on financial principles: will it cost more to fight the claim than to pay?

I presume that helmet wearing would only become a real issue if there were head injuries and that would lead to expert medical evidence, not off-the-cuff allegations.

Anyway, having gratefully read mjr's transcription of the clip and now managed to watch it for myself, I've not noticed anything in this extremely brief explanation of the law of negligence and how a claim may be affected by an allegation of contributory negligence, which says that S&G throw in the towel at the first mention of contributory negligence in general or lack of a helmet in particular. It's all in the context of solicitors advertising for business and offering to fight for clients. Perhaps he assumed the "we're on your side" bit could be taken for granted.

[fastpedaller]

Wish I'd not started reading this thread
It's an unfortunate situation that insurance companies will 'leap on' anything which they consider will reduce the amount they are paying in settlement.
Many years ago I ceased my membership of CTC for the following reason:-
A local guy riding his bike to work was hit by a car driving straight into him from behind and sadly killed. The judge on the case stated that as the rider was cresting an incline and wearing dark clothing he was not visible.
It was a bright sunny day, and it could be argued that dark clothing against a bright sky would probably result in him being MORE visible.
I contacted the CTC by letter, expressing by concern that this could set a pattern or precedent, and (when I spoke to them on the 'phone as I'd received no reply several weeks later) it was clear they just accepted "that's the law, and as he wasn't a CTC member we aren't getting involved"

[thirdcrank]

fastpedaller

Out of interest, was that case a prosecution for something like causing death by dangerous driving or a compensation case? I ask because they are different in various respects, the main one in this context being that neither S&G nor their predecessor RJW would have any involvement in a criminal case. The most recent parallel would be the death of Michael Mason where crowd funding was used to mount a private prosecution when the Metropolitan Police refused to submit a prosecution file to the CPS.

[fastpedaller]

I believe it was the criminal prosecution. Whilst they may not be able to be involved directly, are "people who have (or one hopes should have) our interests at heart" keeping an eye on, and responding to bad decisions?

[Psamathe]

I tend to feel that somebody representing you will be more convincing, see more "angles" and present a better case if the believe in your case rather than somebody who does not believe in your case and is just "doing their job". I appreciate that the legal profession is trained and that it is part of their job the represent their client irrespective of their personal belief/opinions but I (without evidence) think human nature must play a role and have an impact.

Returning to the "helmet" aspects, chose a solicitor who is a moton and believes cyclists are RLJing hooligans who deserve what they get if they risk their lives by not wearing a helmet and would that person present as convincing arguments on your behalf as a dedicated cyclist who has researched the reports on the impacts of helmet wearing?

Ian

[thirdcrank]

I believe it was the criminal prosecution. Whilst they may not be able to be involved directly, are "people who have (or one hopes should have) our interests at heart" keeping an eye on, and responding to bad decisions?

Sticking to an example where the facts are known, the events following the death of Michael Mason form one example of where a big effort was made to do just that. As I've suggested on other threads, a different approach might have been taken but it would be utterly misguided to suggest that nothing was done.

viewtopic.php?p=1120587#p1120587

[fastpedaller]

I certainly wasn't suggesting nothing is done (in other cases), but surely the Mason case is an example which indicates the Police and CPS weren't looking after the vulnerable, and a private prosecution was the only route? I think unfortunately we've got to a situation where there is only a law which looks after the rich and/or powerful.
It seems that the days where " a driver must keep to a suitable speed and anticipate hazard so he is able to stop" have long gone