Cycling UK Forum

Quick question about contributory negligence:

The Highway Code "rules for cyclists" say we "should" wear a helmet and hi-viz (among other things).

If the worst happens and some eejit crashes into you, can a court say you were contributorily negligent - thereby reducing any compensation - for not following those guidelines? They're not statutory requirements, but do they effectively become compulsory if you don't want to risk nil compensation when you're maimed for life?

Cheery thought. Thanks for any help!

Ed

That hasnt been tested in the courts that we are aware of, however there are plenty of tales of people accepting reductions in out of court payments due to failure to meet this part of the highway code.

Another factor which would be important if it got to court would be whether or not the helmet was relevant to the type of injuries involved.
Then there would be the argument as to whether the helmet would have been at all effective in reducing the injuries.

I can see more justification for reduced compensation for a cyclist who suffers head injuries due to their own speed than a slow moving cyclist injured by the impact from another vehicle. Though I think it should never be the victim's responsibility to protect themselves from the effects of somebody else's bad actions.

Probably not an issue at the moment because are already very lenient towards drivers who knock off cyclists.

ed_b wrote:Quick question about contributory negligence:
Ed

The best information on contributory negligence is published by the cyclists defence fund:
http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-contributory-negligence
It refers specifically to helmets but hi-viz is in the same context.

WaterLab Rat wrote:Probably not an issue at the moment because are already very lenient towards drivers who knock off cyclists.

In a criminal or statutory context yes, but contributory negligence with reference to compensation is argued in the civil court.

Here's an example of contributory negligence in operation:

http://thecyclingsilk.blogspot.co.uk/20 ... -case.html

There is a big difference between "should" and "must" AFAIK in the HC the difference is that "should" = it is advised and "must" = it is the law.
So how can anyone be held responsible who is not breaking any laws,when a fault in road condition or negligence by another vehicle causes them injury?
They haven't in anyway been responsible for injuries sustained in such circumstances nor have contributed to their injuries if it's proven to be the fault of others'.
Just my unlearned 2d's

The must can be taken as the rules with respect to CRIMINAL proceedings and the should can be taken as the rules with respect to CIVIL proceedings.

Contributory negligence is a civil law issue.

There was the recent story in the news. A 13 yr old girl struck nby a car while walking home. The insurance didn't want to cough up so they said she should have been wearing hi viz. Last I heard the company lost but were going to appeal. Absolute illegitimate offspring in my opinion, just pay you swine!!

meic wrote:The must can be taken as the rules with respect to CRIMINAL proceedings and the should can be taken as the rules with respect to CIVIL proceedings.....

I see what you are getting at but I don't think you are right.

I think it's more accurate to say that a must rule has a specific statutory basis. where a should rule is based only on a sort of collective wisdom, achieved following the regular consultation process.

Prosecutions for careless/ inconsiderate / dangerous driving can be based on should advice being disregarded (although I'd be the first to agree that in the present san fairy ann set-up, what I'm saying is very hypothetical.)

It seems to me that as cyclists we go down the "they can't touch you for it" route at our peril, because should rules are the basis for a lot of the protection for vulnerable road users. eg Rule 163 "They can't touch you for it."

I can't remember when the must/should distinction was introduced into the HC, but I don't remember it being there when I was a lad. In my one-man protests over the CTC's HC "victory" this was behind part of my thinking. IMO there's a world of difference between having something excluded form the advice, and including it and saying it's not compulsory.

"Should" applies for both civil and criminal, and can be used to establish liability. RTA 1988 s38:

A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under the Traffic Acts, the Public Passenger Vehicles Act 1981 or sections 18 to 23 of the Transport Act 1985) be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.

IIRC, the linked wording always used to be in the introduction to the HC (it's the statutory authority for the HC and has been included in every RT Act since the HC was first published in the 1930's.)

I say used to be, because now it's been replaced in the introduction by something garbled, which does not mean the same as s 38 of the RTA 1988:

... Many of the rules in The Highway Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words ‘MUST/MUST NOT’. In addition, the rule includes an abbreviated reference to the legislation which creates the offence. See an explanation of the abbreviations.

Although failure to comply with the other rules of The Highway Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law) to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’. ...

https://www.gov.uk/highway-code/introduction

Sometimes wonder who writes this; eg item 67 expects cyclists to have 360 degree horizontal vision and be aware of many other hazards!

Cyclists are supposed to take account of everything cars do and not impede them in any way. It would seem.

MikeF wrote:Sometimes wonder who writes this; eg item 67 expects cyclists to have 360 degree horizontal vision and be aware of many other hazards!

I don't think that's what rule 67 is saying:-
You should - look all around before moving away from the kerb, turning or manoeuvring, to make sure it is safe to do so. Give a clear signal to show other road users what you intend to do (download ‘Signals to other road users’ (PDF, 102KB)) - look well ahead for obstructions in the road, such as drains, pot-holes and parked vehicles so that you do not have to swerve suddenly to avoid them. Leave plenty of room when passing parked vehicles and watch out for doors being opened or pedestrians stepping into your path - be aware of traffic coming up behind you - take extra care near road humps, narrowings and other traffic calming features - take care when overtaking (see Rules 162 to 169).