Going helmet-free not contributory negligence, German appeal court rules

Highest appeal court overturns ruling, awards doored rider full damages

by John Stevenson   June 18, 2014  

Scales of Justice (CC BY-SA 2.0 licenced by Michael Coghlan:Flickr)

You are not legally considered responsible for your injuries if you ride without a helmet in Germany and sustain a head injury, the country’s highest appeal court has ruled.

Overturning a previous decision from a lower court, the Federal Court of Justice ruled that a 61-year-old woman who was doored by a driver bore no liability for her injuries.

According to Reuters, the woman was cycling to work at the time of the incident in April 2011. She suffered serious head injuries after being thrown from her bike and spent several months in hospital.

The car owner’s insurance company attempted to reduce its payout to the woman by 20 percent, claiming that because she wasn’t wearing a helmet, she was partially responsible for her injuries.

The case came to court in Schleswig-Holstein where the decision upheld the insurance company’s argument. In its ruling, the court said: “a decent and reasonable person would wear a helmet to decrease the risk of injury”.

But the Federal Court of Justice said in a statement: “Not wearing a helmet does not allow a reduction in the claim as a result of contributory negligence.

“A cyclist is not required to wear a helmet. However, contributory negligence may be found even when a victim does not breach the regulations if he ignores the standard of care that a prudent and sensible man would undertake to avoid the injuries suffered.

“That would be the case here if wearing of protective helmets had been necessary according to general traffic principles at the time of the accident.

“This was not the case at the time of the plaintiff’s accident. According to traffic observations by the Federal Highway Research Institute in 2011, only eleven percent of urban cyclists wore a safety helmet.”

The German Cyclists Association (ADFC) welcomed the appeal court’s decision to overturn that ruling.

Its national director Burkhard Stork said: “The 30 million people that cycle everyday can decide for themselves if they should wear a helmet or not.”

Transport Minister Alexander Dobrindt agreed, saying: “Helmets can provide security and reduce injuries in the case of accident… but we want freedom of choice to be the main focus.”

The situation is less clear in the UK, where insurance companies have also tried to claim contributory negligence to reduce damages to unhelmeted cyclists.

In a 2009 case, a judge found that wearing a helmet woiuld have made no difference to a rider's injuries, but commented: "There could be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury; such a failure, like the failure of a car-user to wear a seatbelt, would not be sensible and so, subject to causation, any injury sustained might be the cyclist's own fault.”

13 user comments

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Quote:
"There could be no doubt that the failure to wear a helmet might expose the cyclist to the risk of greater injury; such a failure, like the failure of a car-user to wear a seatbelt, would not be sensible and so, subject to causation, any injury sustained might be the cyclist's own fault.”

The problem with this line of reasoning is that it implies to almost any situation, e.g. walking on the pavement.

To be considered contributory negligence, wouldn't they have to show that
a. head injuries were reasonably frequent whilst carrying out the activity in question (cycling)?
b. helmets provide a significant improvement in protection.

posted by ribena [145 posts]
18th June 2014 - 16:39

22 Likes

If you could argue that not wearing a helmet contributed to an injury, you could also argue that not covering the door in 10 cm of impact absorbing foam was a factor.

posted by bikebot [723 posts]
18th June 2014 - 17:12

33 Likes

It's worth noting that this case only related to cycling as a means of urban transport, not to sports cycling. 11 per cent of cyclists within urban areas ("innerorts") wear helmets, so the statement made by the judge in the original case that any prudent and sensible person would wear one seemed quite open to challenge with its implication that 89% of the population were neither prudent nor sensible.

Other cases involving people on road bikes have gone differently - most people who zoom around on road bikes do consider it prudent and sensible to wear a helmet and that's been reflected in legal logic.

I'm hoping not to be knocked off my bike on Friday (and it's fairly unlikely, I never have been knocked off my bike by a motor vehicle, in Germany or anywhere else) but it would be an interesting test case if it did happen and I wasn't wearing my helmet at the time. I will be engaged in transport cycling (I have a seminar in another town on Saturday, and I'm going to cycle 100 miles on Friday to get there) and my bike is not a road bike, but it does have skinny tyres, and I will be wearing lycra. Would the laptop in my panniers legally cancel out the effects of the lycra and turn me from a sports cyclist who should be wearing a helmet into a business woman travelling for work who doesn't need one? Or is the urban-rural divide the main factor that matters?

posted by bambergbike [87 posts]
18th June 2014 - 17:37

15 Likes

Couldn't riding in the door zone be seen as contributory negligence....
"if he ignores the standard of care that a prudent and sensible man would undertake to avoid"

Also couldn't NOT WEARING A CAR HELMET, be seen as contributory negligence.

@rich22222

posted by rich22222 [131 posts]
18th June 2014 - 18:28

15 Likes

I live in a city with more bike riders than cars (Münster, Germany). It's a massively cycling friendly town with priority going to bikes and pedestrians at nearly every junction and 1000s of kms of cycle paths.

There aren't many car/bike related accidents here for the simple reason car drivers actually LOOK for bike riders while there driving. I ride my bike everywhere and feel perfectly safe, I even take my daughter along in her bike trailer as a primary form of transport around the city. This is something I would have never dreamed of doing back home in a city in England. It's a culture thing, here car drivers are also nearly always bike riders so have common sense, give way, leave plenty of space when passing and don't tailgate riders.

Granted you get the odd bad driver but there's also a lot of bad/crazy/suicidal cyclists out on the roads.

For England to be a safer place to ride a bike, car drivers need to be educated to expect cyclists and look for them.

posted by EnglishmanAbroad [6 posts]
18th June 2014 - 19:24

23 Likes

I live in a city with more bike riders than cars (Münster, Germany). [...]
There aren't many car/bike related accidents here for the simple reason car drivers actually LOOK for bike riders while there driving.

Münster doesn't actually have a very impressive safety record at all. The stats here http://www.klinikum.uni-muenster.de/index.php?id=vollstaendiger_artikel&... (from 2010) show an average of six accidents involving bikes and resulting in personal injuries every day. Quite a few of those involve driver error (mainly: failing to yield, errors while turning, and not joining the traffic stream correctly).

I think that's not nearly good enough for a town with 280 000 inhabitants, even one in which 37,6 % of all journeys are made by bike.

posted by bambergbike [87 posts]
18th June 2014 - 21:11

14 Likes

Presumably insurance companies wishing to reduce payouts in the case of less serious injuries such as broken bones plead contributory negligence where the injured cyclist (or pedestrian) fails to wear knee/elbow/hip armour. The principle is surely the same

posted by Richard Hallett [7 posts]
18th June 2014 - 21:33

10 Likes

Hold the front page!

Insurance Company in "Trying To Weasel Out Of Paying Up By Any Means Necessary" Shocker

posted by Some Fella [813 posts]
18th June 2014 - 22:33

9 Likes

“This was not the case at the time of the plaintiff’s accident. According to traffic observations by the Federal Highway Research Institute in 2011, only eleven percent of urban cyclists wore a safety helmet.”

Is it only me who sees a dispiriting implication in this statement?

It seems to suggest there is no way of staying neutral in the all-consuming helmet-argument. Personally wear a helmet and, at least in a German context, you are making it more likely that others will be blamed for not doing so!

It shouldn't matter how many wear a helmet, what should matter is who creates the risk in the first place!

posted by FluffyKittenofT... [730 posts]
19th June 2014 - 9:16

15 Likes

Its a technique to be taught in driving school:

In Holland I was told and shown that you open a door on the road side by crossing over your "wrong" arm. This makes you look before you open.

Try it, in UK and you are driving open the door with your LEFT hand it forces you to look down the street.

broomie

posted by broomie [4 posts]
19th June 2014 - 11:16

13 Likes

i was involved in an accident with a car door only a few weeks ago. the driver opened door without looking, i hit the door at 21 mph.
The police issued the driver with a fixed penalty notice on the spot.
i was in the door zone and in my mind i did not mitigate my own risk. so i called the driver a few days later and apologized for hitting his door.

posted by steven miles [23 posts]
19th June 2014 - 12:21

11 Likes

It's entirely the driver's fault. You shouldn't have to 'mitigate' your own risk, in this circumstance. The Highway code makes this clear. If you were hit by a car from behind in daylight would you call them up to apologize for breaking their front window because you were in the road?

posted by 7thGalaxy [47 posts]
19th June 2014 - 12:29

3 Likes

“This was not the case at the time of the plaintiff’s accident. According to traffic observations by the Federal Highway Research Institute in 2011, only eleven percent of urban cyclists wore a safety helmet.”

Is it only me who sees a dispiriting implication in this statement?

No, I can see it, too! The German insurance companies admit that helmet compulsion (by the back door or otherwise) would be inappropriate in a context in which most people don't see the benefits of helmets, but draw the conclusion from that that the benefits of helmets need to be sold to more forcefully to people! (http://www.gdv.de/2014/06/bgh-urteil-loest-diskussion-zur-helmpflicht-aus/).

It shouldn't matter how many wear a helmet, what should matter is who creates the risk in the first place!

Very true - in an urban transport cycling context where many of the risks cyclists face are created by other people (mostly vehicle drivers, but also cyclists and pedestrians). There, putting the onus on cyclists to reduce the risks they face by wearing helmets is victim-blaming rubbish. (In icy conditions, potential victims of cycling crashes do have a good opportunity to minimize their risk exposure, but that's not an argument for helmets, it's an argument for studded tyres.)

In a sports cycling context, where the accident victim and the risk-taker are more likely to be the same person (who might, say, slide out on a wet corner) the idea of doing what you can to protect yourself doesn't have nearly the same victim-blaming overtones and isn't - I feel - nearly as repellent.

So I can see some logic - sort of - in distinguishing between ordinary cycling - no special kit required - and riskier forms of cycling. In practice, though, I'm not sure how that should work out. I don't even know what category I would put most of my own cycling in.

posted by bambergbike [87 posts]
19th June 2014 - 12:54

6 Likes