I was very glad to have been wearing helmet when my back wheel got stop in tram lines last week. I went flying, and my head landed squarely on the edge of the pavement.
Poor infrastructure increases need for?
CityCyclingEdinburgh Forum » Debate!
THE Helmet Thread
(895 posts)-
Posted 8 years ago #
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The fact I haven't been wearing a helmet on my commute all summer seems to be attracting attention at work.
Snarky lunchtime comments about "Ask Ed, he'll tell you all about cycling, ho ho ho" and "He doesn't even wear a helmet..."
Posted 8 years ago # -
It appears not wearing a helmet could reduce compensation if in an accident
Posted 8 years ago # -
Mr Justice Griffith also commented that cyclists who are not wearing helmets when they suffer head injuries should in principle be held liable for those injuries if it can be shown (on the balance of probabilities) that a helmet would have prevented them.
These comments were “obiter dicta”, i.e. they were made in passing to support his conclusions, rather than themselves being findings on a contested point of fact or law. Nonetheless the Cyclists’ Defence Fund is concerned that, despite being based neither on evidence of the effectiveness (or otherwise) of cycle helmets, they may be legally prejudicial against cyclists. In all previous cases where a “contributory negligence” claim has been brought against a cyclist who was not wearing a helmet when head-injuries occurred, the courts have concluded that a helmet would not have prevented the injuries suffered.
Well I hope the same applies to motorists who suffer head injuries
Posted 8 years ago # -
"Mr Justice Griffith also commented that cyclists who are not wearing helmets when they suffer head injuries should in principle be held liable for those injuries if it can be shown (on the balance of probabilities) that a helmet would have prevented them"
Important caveat. Will be incredibly difficult to show.
It certainly hasn't created a precedent (given it's obiter) and doesn't have to be followed. It's essentially an opinion, and cases in the future can choose to ignore it completely.
"Nonetheless the Cyclists’ Defence Fund is concerned that, despite being based neither on evidence of the effectiveness (or otherwise) of cycle helmets, they may be legally prejudicial against cyclists."
Except, in terms of the obiter, the effectiveness of the helmet would have to be proved, so there would need to be evidence.
I think the CDF is worrying unnecessarily...
Posted 8 years ago # -
How strong does that balance of probabilities need to be, especially if it's a jury deciding? Your average man on the Morningside omnibus may think it self-evidently true that a helmet will prevent head injuries, or at least reduce injuries, and therefore hold the victim to be partly responsible.
Posted 8 years ago # -
As a general rule, you're average man on the omnibus isn't a sitting judge.
Posted 8 years ago # -
WC Important caveat. Will be incredibly difficult to show.
Apparently they don't have to show it. At the bottom of that page:-
At Durham Crown Court last Friday, Judge Richard Lowden gave Moore a 24-week suspended prison sentence. He said the fact that Jorgensen had not been wearing a helmet was a “mitigating factor” and Moore’s sentence was reduced accordingly. The judge reached this decision without hearing any evidence about the effectiveness of helmets, or whether a helmet would have made any difference to Jorgensen’s injuries.
Posted 8 years ago # -
@steveo your average man on the omnibus may very well be on the jury though and it is likely that the question of whether the helmet would prevent/reduce injury on the balance of probabilities would be one for the jury to decide. It would only need a half decent brief to plant the idea that a helmet would have ameliorated the impact and that idea would be devilishly hard to shift.
I prefer the principle that mitigation should only be applied to the cause of an incident, not to the result.
Posted 8 years ago # -
it is likely that the question of whether the helmet would prevent/reduce injury on the balance of probabilities would be one for the jury to decide.
Need to check that with WC but if its a point of law or a matter requiring a expert opinion then the jury would be instructed to accept the judge/experts advice. (I think)
Posted 8 years ago # -
"Apparently they don't have to show it. At the bottom of that page"
Except that's a criminal case, with different ways of applying mitigating factors etc. and obiter in a civil case couldn't be used in a criminal case, so the CDF is trying to create a link that isn't there.
They are two separate cases, one in which the obiter carries no real weight and wasn't used in the decision making process, and the other which was a criminal case in which the judge has used a discretion which is available to him.
The former can't be appealed (and wouldn't be, given it wasn't applied); the latter could be if the crown thought this gave too lenient a sentence (granted, unlikely), or that the decision was reached without there being any evidence lead about it.
And some quick Googling shows the R. v. Moore case is from 2008. In 8 years has there been another case following this or (as it must have been at the same time) has the obiter of the judge in the first case been followed?
There appear to have been two main criminal cases since R. v. Moore, in one there was ruled to be contributory negligence; in another a cyclists at night, not using lights, and not wearing a helmet, was not shown to be negligent.
More recently, for those who think we shouldn't take on board European Law, this is eminently sensible from Germany:
"European cases: In June 2014 a German landmark ruling on the issue of helmets and
contributory negligence and the ambiguity surrounding English law has once again been
highlighted in the case heard in the court of Schleswig-Holstein, North Germany, Reference
VI ZR 281/13. The case is a major victory for the ADFC (Allgemeine Deutsche Fahrradclub,
the German equivalent of CTC, The National Cycling Charity), who supported a member in
an appeal against an earlier ruling of "contributory negligence", given in June 2013. The
Claimant's compensation had previously been reduced by 20% as a result of the ruling, with
the Claimant being entitled to full compensation following the court's appeal. The appeal
arose as the Defendant's insurer had argued that any sensible person would wear a helmet
while cycling. However, the Claimant's solicitor argued that, with just 11% of German
cyclists wearing helmets, it was not reasonable to dismiss the other 89% as not being
sensible. The Supreme Court ruled that the Claimant was entitled to full damages,
attributing full liability to the Defendant."Posted 8 years ago # -
More on Smith v. Finch, which was from 2009:
Basically the judge said that the defendant had to prove that the claimant would not have suffered the injuries, or suffered lower injuries, if they had been wearing a helmet.
This is important: "On the facts and also bearing in mind that the Defendant had adduced no medical evidence to support his case that the Claimant’s injuries would have been reduced or prevented by his wearing a helmet, the Defendant had failed to discharge the burden of proving contributory negligence"
So in the civil case the judge is saying, very clearly, that the party alleging contributory negligence must show evidence.
Posted 8 years ago # -
Except that's a criminal case, with different ways of applying mitigating factors etc. and obiter in a civil case couldn't be used in a criminal case, so the CDF is trying to create a link that isn't there.
So judges in a criminal case can make stuff up regarding mitigating factors and judges in a civil case can't?
Somehow I am not reassured by that!
Posted 8 years ago # -
"So judges in a criminal case can make stuff up regarding mitigating factors and judges in a civil case can't?"
Not quite. In either case. But it's often a consequence of our particular legal system. Which means that you can get random decisions, but there are also checks and balances for the truly bizarre.
Posted 8 years ago # -
Another comment this morning about, "Why are you not wearing a helmet"?
ARRRrrrrrrrrrrgh!
FFS.
Posted 8 years ago # -
I had the same from a neighbour last night. I usually do wear a helmet but did not have it on me when I went to collect my bike from Harts. It is only a one mile cycle on fairly quiet roads!
Posted 8 years ago # -
Occasionally from pupils, never from staff.
Posted 8 years ago # -
In a car vs car collision, do the courts consider all possible safety features which could've reduced (e.g. airbags) or avoided (e.g. ABS) the collision?
Posted 8 years ago # -
'Another comment this morning about, "Why are you not wearing a helmet"?'
Waiting at the lights the other day I had a passenger lean across the driver to enquire as to the whereabouts of my helmet. I reassured him it was safe and sound in my garage.
Posted 8 years ago # -
If someone had them but chose not to use them, then yes.
It's apples and pears. If you've got a car which doesn't have ABS then you can't add it (without spending huge amounts), so the only choice is to buy another car. If you don't use your seatbelts, which are mandatory, and in every car, then yes, the courts will hammer you.
Again it has to be said that there is not a general presumption that someone not wearing a helmet is contributing through negligence. Cases are decided on their merits, the cases mentioned have not created a precedent that is to be followed forever more, and yes, if a driver did something that on the evidence available showed that they contributed to their injury the court would take it into account.
Seriously folks, this particular aspect of the law and process is not some sort of anti-cyclist conspiracy. Contributory negligence is a long-established principle, much debated, and the cycling cases where it is mentioned are an utterly miniscule percentage of the total number of cases where it has been applied.
Posted 8 years ago # -
The principle itself may be well-established but it is presumably subject to the biases and presumptions of those who apply it which, in turn, are affected by things like societal norms, widely-held prejudices and stupid adverts about being overtaken badly by lorries. I think that's what folk are concerned about.
Posted 8 years ago # -
"... but it is presumably subject to the biases and presumptions of those who apply it..."
As with ANY law and case which comes before a court. Again, it's not special to cycling. What if the judge is a racist, or doesn't like gay people, or is gay, or hates women.
The only reason cycling is any different to those is that we do it and so we're aware of it, but if you're going to have the principle (and it's a very very good principle) it has to be applied, and it will be applied, no matter what the subject, by someone who might have biases, no matter whether the claimant is a cyclist, driver, black, white, male, female, gay, straight, bi, trans.
How do we get rid of the biases? We don't. We can't. But we can appeal if we feel that the decision is wrong and that biases were applied, and then the higher court can look at the reasoning and re-examine. And yes, they may also have biases.
But I just don't see how else the system can work to apply the principle, and I don't see it affecting cyclists any better or any worse than any other group that may have biases against them.
Posted 8 years ago # -
Well fair enough - but isn't it still legitimate to examine those biases by, for example, looking into how the principle affects car drivers in similar situations?
Posted 8 years ago # -
Yes, with one caveat / amendment. How the principle affects drivers in the same situation.
Posted 8 years ago # -
Well that's even worse isn't it - it's fairly likely a driver's lack of helmet-wearing on public roads has never even been remotely alluded to in court right?
In fact I'd say it's more likely that you'd be able to find an example of the driver's wearing some sort of headwear being blamed for causing injury or damage.
Posted 8 years ago # -
I've got to go home, but there are reasons why I don't actually think those are the same thing, which I'll see if I can get into order in my head.
"In fact I'd say it's more likely that you'd be able to find an example of the driver's wearing some sort of headwear being blamed for causing injury or damage."
That I think is fanciful, but I'll have a search.
Posted 8 years ago # -
Oooh. I'm very curious now.
Posted 8 years ago # -
"It's apples and pears. If you've got a car which doesn't have ABS then you can't add it (without spending huge amounts), so the only choice is to buy another car."
I was thinking of a situation where someone had chosen to take their 1963 E-Type for a drive instead of their 2014 Citroen Xsara.
Posted 8 years ago # -
A car driver may suffer contributory negligence when not wearing a seat belt (this predates the legal requirement to wear a seat belt , question is wether it would have made a difference to the outcome), on a bicycle not wearing a seat belt would not be considered contributory negligence in a car not wearing helmet in normal circumstances would be not be considered contributory negligence (if was a race car if may be).
http://www.e-lawresources.co.uk/Froom-v-Butcher.php
If in a car or a bicycle it would need to be considered to have made a difference to the outcome not wearing a seat belt (or helmet) even now in its self does not ensure a decision of contributory negligence
http://www.thompsons.law.co.uk/ltext/lb0410-seatbelts-contributory-negligence.htm
Posted 8 years ago #
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