Was reading about court ruling in the High Court, where in a case involving a crash between a bike and a motor bike, whilst the judge found against the motor bike, the cyclist was also to be contributary negligent, because he did not wear a helmet, although it was accepted that due to the accident speed and the type of injury it would have not helped.
The clear result of this will be that like it or not insurance companies will latch onto it as a precedent and this could result in injured cyclists not getting the cash they deserve. I know that many people have strong views on helmets but is it not now the time we accept that they become compulsary. At the end of the day society has grown to accept that crash helmets on motorbikes are a good idea, seat belts in cars are helpful. Given the potential for even greater use of bikes, we need to as users show that we are taking responsibility for our own safety.
That is a ridiculous ruling and should be appealed against with the greatest urgency. Helmets are not compulsory and as far as I am aware do not feature in Highway Codes et al. If the fault was clearly the motorbiker's, the speed was such that a cycle helmet would have been useless, plus the fact they are not compulsory would make this a baseless and arbitrary ruling in my opinion.
Not very good with computers but read it on the bikeradar web site, I do agree with you that the motorcyclist was at fault, my concern is that a precedent has now been set that will give insurance companies an out.
I agree that this is worrying but just to be totally clear:
The cyclist in this case was NOT found to be negligent since it was considered that helmet would not have helped him. The worrying point is the possibility that he COULD HAVE been should his injuries have been different.
Bull shit on the ruling, that really is bull shit, its a bit like saying that a driver is negligent for the colour of the trousers/skirt they were wearing. There is no compulsion to wear a helmet, no studies that have shown that those wearing helmets are in better control of their bikes, or are more considerate responsible cyclists.
How can it be contributory negligence?
As you indicate, this is a ruling to encourage exactly the move you want, but that move will just give insurers even more power to not pay out to cyclists not wearing a helmet. Sadly these people won't be the enthusiast, it'll be children and those occasional bikers that we should be encouraging to get on the bikes in the first place.
Second bit of bullshit... if anything, this is not a justification for legislation it is a shot across the bows that the cycling bodies should get their arses into gear and start pushing this forward.
I will not accept any legislation until someone can produce some genuine black and white evidence that proves helmets are suitably beneficial to saving lives, and that this benefit is worthy of the legislation.... i.e. the legislation is for our safety not just to make car drivers feel smug in taht we are playing the suitable fecking victim.... sorry I mean be seen to be 'responsible'.
Cycling is not a dangerous pass time, that is key, the speeds and forces involved in accidents are not dis-similar to running and walking, so why do we need extra protection?
I would give up teh sport the day I felt I needed to wear a helmet just to survive a day on the bike. I would not feel it fair to my family to continue a passtime that I recognised as being so dangerous to my health.
Motorbike helmets work and have been proven to do so... the reason for this is two fold... they are big and heavy and will effectively take a bang... they also have to deal with much greater potential forces.
Seat belts work and have been proven to do so because they effectively stop your body smashign around inside and outside of a car in a crash, it effectively harnesses you in a survival area. Again the speeds and forces involved make this necessary.
A bike helmet is an inch of polystyrene which can absorb a relatively little blow... this is not a proven life saver. In certain impacts it can protect the head (edges of kerbs etc), glancing blows etc etc, and as such offer protection to a degree.... but those people who walk away froma crash without even a headache lamenting how their lid saved their lives... come on get over your selves. If I tried to crush a helmet in my hands, I reckon i could do it.... Couldn't do it to a skull though. But no, that polystyrene foam has suddenly found loads of extra strength (from the support provided by the skull), and saved a life. Get real. It is a life saver when the poor sod is in a coma, and the lid is totally destroyed... then it may be a life saver, anything less than that and its lessened a head ach at best.
so in summary, I think unlike cars and motorbikes there are still questions about the effectiveness of helmet legislation.... and also unlike cars and motorbikes, it is important that people are not put off riding a bike due to legislation and the connotations its provides around road safety adn image (i'll admit it is an issue). Tell me honestly, will more people get on a bike because of helmet legislation?
I also think that ruling is dangerous and should be questionned.
The clear result of this will be that like it or not insurance companies will latch onto it as a precedent and this could result in injured cyclists not getting the cash they deserve. I know that many people have strong views on helmets but is it not now the time we accept that they become compulsary. At the end of the day society has grown to accept that crash helmets on motorbikes are a good idea, seat belts in cars are helpful. Given the potential for even greater use of bikes, we need to as users show that we are taking responsibility for our own safety.
No. The principle long adhered to in English law, which this ruling might contravene, is that in an incident for which one party is entirely at fault, injuries to the other party are entirely the responsibility of the first. I can so no reason why this should not be the case, otherwise all persons would, if they had any sense, dress in such a way as to minimise injury to themselves inflicted by another party no matter how caused.
Injuries to the head are no different to, say, spinal injuries that might attract a substantial claim for damages. We don't have to armour ourselves against the negligence of others. If motorists and motorcyclists pose a risk to others, they should bear the responsibility.
Seat belts and motorcycle helmets are compulsory because they are proven to reduce deaths and serious injuries to those using modes of transport that are demonstrably dangerous to their users. Cycling is not. The danger to us comes from others and, as can amply be demonstrated, wearing a cycle helmet is not much of a defence.
This is also an interesting case for other reasons:
Helmet expert Dr Bryan Chinn examined Mr Smith's helmet, which was about 20 years old, and told the court that neither that model nor a more modern one would have prevented Mr Smith's injuries because he hit the ground in excess of 12mph. He said the scalloped shape of most modern helmets would not have prevented Mr Smith's injuries, given the location of the impact on the back of his head.
The judge said that, in the absence of expert medical evidence – which he called a "fundamental evidential omission", the court accepted Dr Chinn's evidence and the motorcyclist was fully liable.
So, the victim was wearing a helmet. It did him no good, and nor would a current model. the motorcyclist was found fully liable in any case.
Quite why the judge, Mr Justice Griffith Williams, found it necessary to assert that the cyclist could have been found partly liable if wearing a helmet would have prevented or reduced his or her injuries is beyond me, but I doubt it will withstand any challenge from the CTC.
I think a small comment on contributory negligence is waranted here. Before I make it though I am not defending the decision etc etc etc.
A finding of contributory negligence does not mean that in this case the motorbike rider would have got away scott free. He would still have been liable. If it is found that the injury "would have been altogether prevented" by the wearing of a helmet (sorry Lord Denning for the paraphrasing) then the compensation can be reduced by 25%, "where injuries would have been "a good deal less severe" " it can be reduced by 15% (Froom v. Butcher [1976] QB 286 CA). If like in this case it would have made absolutely no difference whatsoever then there is no deduction. In short, the cyclist would still have recieved compentsation, just maybe not as much.
Interesting to note as well that the decision in Froom (which revolves around the wearing of seatbelts to prevent injury) was made before the wearing of them became compulsary (1991).
Personally I always (ok nearly always) wear one having come off my bike too frequently when thowing my mtb down a downhill course. My little sister managed to break one into about 6 bits!!!! Scared the living daylights out of both of us.
And this is why I sincerely hope the statement this stupid judge made should beappealed against and publicly retracted. In fact, I think forcing him to do so is so important that it merits support by the entire cycling community.
The law should be applied as it stands and not arbitrarily added to because some stupid judge thinks he knows how it works; if there is no legal requirement for a helmet (and in my opinion there should never be) setting such a precedent means that insurance companies will try to latch on to anything that might contribute to injury even if there is no legal requirement. In a hypothetical situation a crash where a no-fault cyclist gets severe road rash due to being crashed into by a car/motorbike etc, an insurance co. could argue that injury could have been prevented to a large extent by wearing a padded suit. This may seem a silly scenario, but similarly there is no legal requirement for a padded suit.
For the rest of you interested in knowing more, here is the story.
Oh, and Helen, stop kissing arse ('sorry Lord Denning') - the fool made a completely unwarranted comment which he should have known would be dangerous.
Erm Lord Denning has been dead for a good couple of years, not the one ruling in this case. Denning formulated the cont neg test that I was quoting.
Ok I'm not defending this judgment, which incidently is nothing new (same decision was found in the case of a motorcyclist who was injured whilst not wearing a helmet in 1972) but there are a lot of assumptions being made here which are making this appear a whole lot bigger than it actually is.
Firstly, I think its worth saying exactly what cont neg is. Its a partial defence, it doesn't make the defendant any less guilty of negligence etc, it just alters the amount of compensation. Secondly, to show cont neg the defendant would have to show a two things
a) that the claimant failed to take reasonable care of their own safety and
b) that the failure to take reasonable care was a cause of the damage/injury suffered.
It is the first of these that stops the cont neg claim of "oh he wasn't wearing full kevlar body armour on a road bike" as the objective reasonableness test would never be passed. If as a lot of you are convinced, cycle helmets are about as much good as a chocolate fireguard then the second test will fail as well.
In short, if cycle helmets are as useless as you say then there should be no difficulty in court proving that they would have made no difference, so there can be no cont neg.
I am intrigued though as to how you suggest the cycling community appeal this ruling...
Kind of knew this one would stir up a bit of debate, I am quite lucky I live in a semi rural area, so there is less traffic, I chose to wear a helmet (i reckon even a little protection is better than none), however I think this ruling could have far more reaching effect in the way the debate is developed.
Because of the stagnation of traffic in large cities and towns and the other factors, driving is becoming more difficult, this will lead to frustration and could result in greater levels of accidents and in most case where a cyclist comes into contact with other road users they will come off worse.
If they are faced with increased claims, insurance companies will undoubtedly try every trick in the book, to cheat and swindle their way out of paying money. Mauybe a helmet may not de so much a way of protecting your head as protecting your claim.
The point I was trying to make about seat belts and motor cycle helmets is simple, as road usage and technology changes then so has behaviour, the fact that cycle helmets cannot stand comparison in terms of crash protection comapred to a motorcycle helmet is not really the issue.
Helen, I m interested to know why it should make a difference in this case, a) because the chap was awearign a lid, and b) if the wearing of lids is not compulsory, surely this opens a can of worms as Jorrin mentionedabout what other safety precautions we should be expected to take...
Could I be found to have demonstrated contributory negligence if I was knocked off my bike by a car if it was clarified that I was riding teh bike purely for pleasure...in essence I played my part because I was there. I didn't need to be there, therefore it was to a degree my fault? It is the same logic... a cyclist in not wearing a helmet is doing nothign wrong in legal terms, so why can it play a contributory part unless the rule can be taken to its extremes?
Knocked off bike commuting? Was there an affordable and realistic public transport solution you could have taken instead, could you afford a car?
Helen, even a partial defence which would reduce the amount of compensation paid should not be allowed to happen in instances like these (even though the motorbiker was here found to be fully responsible) because there would have been no injury of any description had there been no accident, and because there is no legal requirement for a helmet. Full responsibility should therefore always be with the person causing the accident. Although I concur that where there is a legal requirement for protecting oneself (seatbelts, motocycle helmets,...) that a cont neg defence has some merit. However, comments like the one made by the judge in this case, and the fact he allowed the defence to use cont neg are completely and utterly wrong because there is no legal requirement for a helmet to be worn. The judge should have known better and simply not allowed this line of defence.
I am not saying the ruling should be appealed, what I am saying is that the judge should be made aware of the frivolity of his actions and his uterances should be contested. Someone in his/her position should have known better. And calling the lack of proof an 'evidential omission' in addition to allowing this line of defence smacks of partiality.
I fully understand the principle of antecedents and they can certainly be beneficial, but a judge (clearly) also makes mistakes and engraving such cases in history as supposedly needing to therefore be judged in a certain manner in future is a dangerous practice if common sense is not left to prevail.
You pretty much answered the question there Helen, thanks.
But why has helmets become a reasonable safety precaution as described, and yet a leather jacket/full kevlar suit is not?
I don't think you can prove a helmet is useless in as much as you can not prove it is useful...the variables are so great.
In certain instances a helmet will be of benefit for sure, its the amount of protection, and amount of difference they really make that is the question. How can you prove a lid will make a life or death difference, and how unreasonable is it to ask that people use back guards, elbow pads, wrist supports etc etc....
Which is why I am anti.
As for cycling bodies appealing this case, of course not, but they should be more active in pushing this issue, our rights and ensuring that unnecessary legislation does not come to pass, adn that helemt use does not automatically become seena s a contributory negligence parameter. certainly not with out some more proven evidence as to their merits.
Seat belts are different, they have spent plenty of time testing those, do you not remember the ads?
Ewan, I take your point, but there is a difference here, car and seat belts are proven performers (although many motorcycling folk will point to the neck breaking and decapitating qualities of certain hemlets in certain crashes), which were implemented to address a real problem... teh 'real' problem in cycling does not stack up... the injury rate is not significantly high enough to warrant legislation, infact I belive the injury rate is less than for walking.
Actually that point only further strengthens my question.... if the stats do not support the need for helmet wearing (there is no proven danger, only perceived) why is helmet use seen to be a parameter for contributory negligence?
is that not a question the cycling bodies should be posing the legal system?
I think a small comment on contributory negligence is waranted here. Before I make it though I am not defending the decision etc etc etc.
A finding of contributory negligence does not mean that in this case the motorbike rider would have got away scott free. He would still have been liable. If it is found that the injury "would have been altogether prevented" by the wearing of a helmet (sorry Lord Denning for the paraphrasing) then the compensation can be reduced by 25%, "where injuries would have been "a good deal less severe" " it can be reduced by 15% (Froom v. Butcher [1976] QB 286 CA). If like in this case it would have made absolutely no difference whatsoever then there is no deduction. In short, the cyclist would still have recieved compentsation, just maybe not as much.
Interesting to note as well that the decision in Froom (which revolves around the wearing of seatbelts to prevent injury) was made before the wearing of them became compulsary (1991).
Personally I always (ok nearly always) wear one having come off my bike too frequently when thowing my mtb down a downhill course. My little sister managed to break one into about 6 bits!!!! Scared the living daylights out of both of us.
I think you will find that the term 'contributory negligence' as far as cycling helmets are concerned refers to the actions leading up to any incident; if the 'accident' was caused by actions on both parts that contributed to the outcome, then compensation might be adjusted accordingly. Until now, the law has consistently upheld the view that not wearing a helmet does not amount to negligence on the part of a cyclist injured in an incident for which he or she was not responsible.
The point I was trying to make about seat belts and motor cycle helmets is simple, as road usage and technology changes then so has behaviour, the fact that cycle helmets cannot stand comparison in terms of crash protection comapred to a motorcycle helmet is not really the issue.
It is one of several issues, if not the salient one here.
Worth noting that the CTC has spent decades fighting exactly this kind of legal thinking, until now with 100% success. Obviously it is hard to appeal against a case where the outcome was entirely oin favour of the cyclist, but I suspect that the judge's comments will not supersede precedent should they be used in future cases.
Plus there has been no proper testing of cycle helmets to conculsively prove either way how effective they are.
If you want to go by what stats are available (...yes I know, but it's a start) :
the Netherlands has one of the highest (if not the highest) rate of cycle use going, one of lowest rates of helmet use going, and one of the lowest cycle fatality rates going;
the introduction of compulsory helmets in Oz produced a major reduction in the number of cyclists but had no measurable impact on % head injury rates.
For each piece of 'evidence' that can be presented to show how they can prevent an injury, there is an opposite piece of 'evidence' that can show how they can contribute to injury - I'm not sure how a reasonable care argument could be won here.
Unfortunately the full law report isn't out yet so I can't see if the comment about helmets formed part of the judge's actual decision or whether it was effectively a side comment (dicta).
As to your question, the courts deem us all to be under a duty of care to ourselves to take reasonable steps to keep ourselves safe, or as Lord Denning put it "contributary negligence is a man's carelessness in looking after his own safety. He is guilty of contribuary negligence if he ought reasonably to have foreseen that, if he did not act as a resonable prudent man, he might hurt himself".
This doesn't mean you have to rule out every bit of risk in your life, it merely means you have to take steps to mitigate against it. The test used is an objective one, ie not did the rider think it was reasonable to do x, but would an independant (totally made up) objective bystander think it was reasonable to do x. It is this reasonableness test that prevents cont neg claims such as "he wasn't wearing a kevlar body suit to cycle in" as no bystander would think that was a reasonable precaution to take.
In your question you asked if the fact that you were riding purely for pleasure could count as cont net and I would say it wouldn't. The test so far as I am aware does not look at why you were doing something, only the how of what you were doing.
As I understand it the starting point will be the negligence claim by the cyclist (C) against the driver or whoever (D). D owes C a duty of care as a road user, D breaches that by causing a crash, C sufferes damage as a result - basic negligence claim (assuming no intervening acts etc which would complicate it).
D then attempts to claim the partial defence of cont neg by C. C owes himself a duty to take reasonable care for his own safety). D has to show that C breached this. Now I would say that cycling down a road doesn't form a breach as it didn't cause the crash (no matter why you were cycling) If it did form a breach then D would be suing for negligence in the first place, not contributary negligence.
In the cont neg claim, D is trying to show that the damage caused in the negligence claim was not wholly caused by D's breach but partially by C's breach of duty to himself. Now this is where the helmets come in. In the OP's case wearing a helmet would have made no difference, the damage was and would always have been caused 100% by D's breach hence no cont neg. In a slightly different scenario though, for example a slow speed shunt but C cracks his head on a kerb it may be shown that without a helmet C suffers a cracked skull and brain damage but had he been wearing one he would have only suffered bruising. The question is almost was the "extra" damage caused by C not wearing a helmet. If the "objective bystander" would have thought it reasonable to be wearing a helmet, and the "extra" damage came from C not wearing one then there would be contributory negligence.
In a long winded way I suppose what I'm trying to explain is that the cont negligent act is not that you are cycling but how you are cycling (ie without a helmet). Does that make any sense?
Darn it you guys beat me to it while I was still typing, silly fingers and looking things up.
I think the difference between arm/leg pads and a helmet is probably the potential injury. A broken leg is a pain, a broken skull usually more serious. Interestingly the case I mentioned earlier where a motorcyclist was found cont neg as they'd not been wearing a helmet was decided the same year (but I believe before) the regulations came out for motorcyclists requiring them to wear a helmet. Again that legislation was singularly unpopular if the reports are to be believed (sorry not old enough to remember that one) but these days no one even quibbles at it.
I too would be interested to see a scientfic study done to see the effectiveness of helmets but as I said earlier providing you can confidently prove in court that wearing one wouldn't have helped then you have nothign to worry about. Me, I'm going to keep wearing mine, if nothing else it gives me somewhere to clip another couple of lights
