Cycling UK Forum

meic wrote:If you were doing an activity where you were expected to wear a helmet and then asked for compensation, I would expect a deduction for contributory negligence.

Isn't the whole point about this that an atmosphere is developing - probably has developed - where cycle helmets are in just that category? In which case, the judge has avoided that by insisting on evidence. (Incidentally, I should hope that the absence of a helmet would not count as contributory negiligence to say, a broken back, if the appropriate fall-restraint was in proper use but failed.)

I thought a bit more about my post.

It is true wrt to a claim against BT for the worker who made a mistake and fell.
I dont think their should be a reduction for contributory negligence against a third party who causes him to fall or had vandalised the pole causing it to collapse with the worker on it. Or more relevantly if the pole was knocked down (with the worker up it ) by a motor vehicle.

ianr1950 wrote:

crazyace wrote:If as Mr Justice Griffith Williams says not wearing a helmet is can be considered as contributory neglegence and should reduce ones compensation for injuries received, and seeing that helmets are not compulsory by law, then not wearing a bulletproof jacket could be considered the same in the event of one being shot. Thats how ridiculous his statement is.

I think not, I do not agree with the judges statement but I think your anology is as ridiculous.

It was meant to be to show how ridiculoues Mr Justice Griffith Williams' statement is.

The question is more bizarre than that.

Someone has harm inflicted on them through no fault of their own and is then repsonsible for not protecting themselves from that harm?

How far do you wantto push this concept?


Is a rape victim responsible for pregnancy because she did not take contraceptive measures?

http://www.cyclistsdefencefund.org.uk/c ... ts-and-law

That's our very own Cyclists' Defence Fund on the subject. It seems to me to have been written in clear language and well to the point so worth a read. In Froom v Butcher it was held that not wearing a seatbelt might amount to contributory negligence. The authority for requiring people to protect themselves from the negligence of others was found in the law requiring seatbelts to be fitted even though at that time - 1976 - the wearing of seatbelts was not compulsory. The legal opinion on that link does not mention this helmet case (Smith v Finch) so I presume it pre-dates it and has not yet been amended. Anyway it does predict that a court might take a similar view about cycle helmets because they are recommended in the Highway Code.

We can philosophise as much as we like but it is well-known that the law is a ass and we are stuck with the law as it is, not as we should prefer it to be.

Footnote: the CDF site has sections on red lights and cycling on the footway, as well as this about helmets. I thought it might short-circuit some of our long threads on here, but those parts of the site are 'under construction' - perhaps they're having a lively debate in the office

crazyace wrote:

ianr1950 wrote:

crazyace wrote:If as Mr Justice Griffith Williams says not wearing a helmet is can be considered as contributory neglegence and should reduce ones compensation for injuries received, and seeing that helmets are not compulsory by law, then not wearing a bulletproof jacket could be considered the same in the event of one being shot. Thats how ridiculous his statement is.

I think not, I do not agree with the judges statement but I think your anology is as ridiculous.

It was meant to be to show how ridiculoues Mr Justice Griffith Williams' statement is.

But I don't think it is so.
The anology with wearing a bullet proof vest is more ridiculous as you would only need one if you were entering into a situation where the chances of being shot were much higher than just walking down the street.

If it could be shown that by wearing a helmet could have reduced any head injury then why not.

I do not agree with compulsury helmet wearing at all but there are instances where they can be shown to have reduced injury.

I think this is all a bit of a red herring. The judgmrnt certainly allowed the concept that not wearing a helmet might contribute to a reduction in damages but it also made it very clear that the defence had to show that in the individual case the helmet would have mitigated the injury. I think this is impossible to prove. The proof that 300gm of polystyrene can mitigate serious head injury in an accident likely to cause it is something people have been looking for for 30 years without success. I think a succession of civil cases where the defence is called on to demonstrate thet a helmet would've saved injury will be useful in dispelling at lot of the conventional wisdom that surrounds cycling helmets .

Cunobelin wrote:Someone has harm inflicted on them through no fault of their own and is then repsonsible for not protecting themselves from that harm?

Speaking as the Devil's advocate .... that's how burglary or theft might be treated if you didn't lock your house. Not any less illegal, but you might not get your insurance to pay out.

ianr1950 wrote: The anology with wearing a bullet proof vest is more ridiculous as you would only need one if you were entering into a situation where the chances of being shot were much higher than just walking down the street.

I find that analogy very apt. By getting on my bike I am not entering a situation where the chances of a head injury are higher than when walking down the road. My experience says so, and so do the statistics.

I've been searching to find a law report of what was actually decided in this case. Here is a law report. It does reinforce the point made by MartinC and by me as well. (NB. For anybody confused by the comment below that Froom V Butcher was about motor cycle helmets, everybody else on the legal planet thinks it was about seatbelts. That's lawyers for you.)

http://www.linexlegal.com/index.php

Smith v Finch
Source: Eversheds LLP - In this case, the High Court clearly supports the view that the approach taken in Froom v Butcher should equally apply to the failure to wear a cycle helmet, but the burden of proof remains on the defendant and perhaps most significantly to establish causation.
Road traffic accident – cyclists can be contributorily negligent for failing to wear helmet Smith v Finch [2009] EWHC 53 (QB) Facts The claimant (C) cyclist suffered serious head injuries when he collided with a motorcycle ridden by the defendant (D). D was found liable for the accident but D also alleged that the claimant was contributorily negligent for failing to wear a cycle helmet. The High Court agreed with D. The court placed reliance on Froom v Butcher [1975] and the comments made in that case in relation to the sensible practice of wearing motorbike helmets, which the court held should also apply to the wearing of helmets by cyclists. The fact that there was no legal compulsion for cyclists to wear helmets did not matter, as there could be no doubt that the failure to wear a helmet might expose the cyclist to a risk of greater injury. On the balance of probabilities a cyclist who did not wear a helmet runs the risk of contributing to their injury. However, the burden is on D to prove that: * the claimant failed to take ordinary care of themselves, or in other words, to take such care as a reasonable person would take for their own safety by not wearing a helmet * the failure was a contributory cause of the damage. D failed on the second point. On the balance of probabilities, the court held that none of the injuries sustained by C could have been reduced or prevented by the wearing of the helmet, even if the impact speed had been low enough for the helmet to have afforded protection. D therefore lost on the contributory negligence argument. Comment There has been a lack of authority on this issue until now. In this case, the High Court clearly supports the view that the approach taken in Froom v Butcher should equally apply to the failure to wear a cycle helmet, but the burden of proof remains on the defendant and perhaps most significantly to establish causation. In many claims, that will be the most difficult factor.

thirdcrank wrote:the burden is on D to prove that: * the claimant failed to take ordinary care of themselves, or in other words, to take such care as a reasonable person would take for their own safety by not wearing a helmet

This is why people who wear a helmet "because there's no particular reason not to" are so wrong. How have we got to the stage where a reasonable person "would wear a helmet", or that this is simply "taking ordinary care of yourself"? The silent vote for compulsion that is wearing a helmet...

How long before a head-to-toe luminous suit is "taking ordinary care of yourself"? After all, I see a significant number of people who are bare-headed but day-glow (the day this becomes a legal liability, I really shall give up riding to work).

Or when the very act of riding on the road where the poor car driver could hit you is "failing to take ordinary care of yourself"?

Although in reality it would be very hard for a manufacturer to prove that a helmet would have prevented your injuries, it does mean that the insurance companies may feel invited to offer a cut-down settlement by default, forcing you to go to court if you want the full 100% (many people if they get a letter offering them a% or the time and expense of a court fight, will take it)

At times like this I really worry about the future of the country

E F

I've been hammering on for so long about a lot of what you say that I am regarded as some sort of eccentric. I've lost count of the times I've mentioned on here that around here at least, the clothing of KSI pedestrian and cyclist casualties is routinely photographed by the police. Wearing light / hi-viz / reflective togs is recommended in the Highway Code.

When the CTC had its resounding victory over the Highway Code revision re. use of cycle facilities, this sort of legal thinking is exactly why I stuck my head above the boat and rocked the parapet.

Some victim blamers are no more than an irritant but the insurance 'industry' thrives on it.

aesmith wrote:

ianr1950 wrote: The anology with wearing a bullet proof vest is more ridiculous as you would only need one if you were entering into a situation where the chances of being shot were much higher than just walking down the street.

I find that analogy very apt. By getting on my bike I am not entering a situation where the chances of a head injury are higher than when walking down the road. My experience says so, and so do the statistics.

Statistics can prove anything you want them to depending on how they are presented.

ianr1950 wrote:-

<Statistics can prove anything you want them to depending on how they are presented.>

So, do you therefore ignore all statistics and rely on common sense, or do you make sure statistics are used properly? The latter is the scientific approach, which is the method by which we have greatly increase our understanding of the world.
The statistics which show helmets don't work are those collected by the governments which made helmets compulsory. They show that head injuries to cyclists go down after a law, but by less than cycling. This has happened in several different countries. The interpretation is limited to very simple arithmetic. Please point out any trickery.

Mike Sales

Common Sense suggests.

Compulsory helmets lead to reduced number of cyclists.
Those ex-cyclists become motorists and the motorist-cyclist ratio gets even worse.
This leads to more cyclist injuries per cyclist, including of course their heads.
So cyclists who support compulsion will be in increased danger, while those of us who refuse to wear a helmet will be nice and safe in our tin boxes.