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Contributory negligence ruling could sets dangerous precedent for injured cyclists

THE CTC is taking legal advice on challenging a court ruling which could leave cyclists liable to contributory negligence if not wearing a helmet when injured.

Roger Geffen, campaigns and policy manager for the CTC, called the High Court judgement in the case of Smith v Finch, “concerning,” and said the national cyclists’ association would be consulting its lawyers to prevent cyclists potentially losing out on compensation in the future.

The case concerned a collision between cyclist Robert Smith and motorcyclist Michael Finch, which resulted in Smith receiving head injuries causing him to lose all memory of the incident.

Although it was established that Smith hit the ground at 12mph, and the wearing of a helmet would have made no difference to the injuries sustained, the CTC’s concerns rise from the judge’s comments: “It did not matter that there was no legal compulsion for cyclists to wear safety helmets because 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.”

Although the judge found in favour of the claimant, Geffen told road.cc: “The judge appears to have set a principle at the high court level. We’ll be seeking legal advice as to how and what we need to do to challenge this particular finding or whether it’s better to wait for another case to come up.”

“Our stance is that people should be free to choose whether to wear a helmet. There is evidence to say that if you force people to wear a helmet, less people will cycle, and those who remain lone cyclists, will do so without the benefits of safety in numbers.

“We also know that cyclists wearing a helmet cycle less cautiously and drivers drive less cautiously when they see a cyclist wearing a helmet, it’s a kind of risk compensation.”

He also pointed to the role of the Cylists’ Defence Fund, an independent charity set up by the CTC, which cyclists can call upon when involved in potentially legislation-changing cases such as this.

He said: “I must stress the importance of getting good legal advice. We knew nothing about this case until it was reported. If we had we would have tried to get in touch with the claimant to make sure he was getting good legal advice.”

To contact the Cyclists’ Defence Fund, visit: www.cyclistsdefencefund.org.uk

12 comments

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purplecup [217 posts] 7 years ago
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“It did not matter that there was no legal compulsion for motorists and their passengers to wear safety helmets because there could be no doubt that the failure to wear a helmet might expose the car occupants to the risk of greater injury; such a failure would not be sensible and so, subject to causation, any injury sustained might be the motorist's own fault.”

can you imagine the judge saying that? it's in every way an equally valid statement, so far as i can see.

nope, me neither.

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ourmaninthenorth [81 posts] 7 years ago
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I'm not sure I agree with the assertion that a parallel can be drawn with motorists and the extent to which a helmet would affect an award of damages.

There is an increasing assumption that wearing a helmet on a bicycle is a positive safety choice, and that any decision against that is, according to the obiter statement in the judgement, apparently the view of at least one member of the judiciary. I am not aware of the same view being expressed in the same way in relation to those suffering head injuries in cars - the assumption is that one should wear a seat belt and rely on an airbag.

Further, this does not actually represent a change in the law. This was an obiter statement and, while it may be persuasive in the future, it is not binding law. It is also only a High Court decision, so is much weaker than anything that might have been decided in the Court of Appeal or House of Lords.

What it does show - in a one off case - was that an argument was run that not wearing a helmet contributed to an injury and that counter evidence was required to show that no data exists to show the effectiveness of helmets in crashes over 12mph.

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purplecup [217 posts] 7 years ago
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I'm drawing parallels between data. there's no reliable, uncountered body of evidence to back up a claim that wearing a cycle helmet will inherently make you safer, and the same is true of motorists and helmets. It's arguably more 'sensible' for a motorist to wear a crash helmet – which is designed to protect you in the event of a crash, which is where most serious motoring injuries occur – than is is 'sensible' for a cyclist to wear a cycle helmet, which isn't designed to protect you in a collision with a motor vehicle, which is where most cycling injuries occur.

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Denzil Dexter [140 posts] 7 years ago
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… Oh all right then calmly reasoned arguments all round

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ourmaninthenorth [81 posts] 7 years ago
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Purplecup - I agree.

In effect what we have is a situation where assumption could potentially affect judgements. In many ways, it is a shame that the judge did not seek to enforce contributory negligence, because this then could have ended up in the Court of Appeal, where the specific point on the effectiveness of helmets could be examined.

The examination needs to take in exactly the points you refer to, but rather than do it by comparison with injuries sustained by car occupants, look at what data there is for cyclist only injuries.

unfortunately, there seems to be a level of mis-information as to the value of a cycle helmet: the classic example of "If i wasn't wearing a helmet i would have died" from someone walking away from an accident. This is subjective, and does not stand up to scrutiny. Sadly, I've heard enough anecdotal evidence from people who have been told the same by (medical) doctors, who, in my view, are almost as poorly qualified to make such an assertion as the individual with the headache.

The alternative, to be frank, is to be able to demonstrate that one was moving at greater than 12mph, as there seems (on the limited info available from this case) to be an assumption that it makes no difference above that speed whether one wears one or not. Or, put another way: the data doesn't exist to tell us anything definitively.

This still remains a grey area. I'm not convinced the law has actually changed on this.

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aP [7 posts] 7 years ago
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Of the 3 crashes I've had on the road in the last 20 years I was only wearing a helmet for one of them and that's the one that I ended up with 6 stitches and a trip to Moorfields with a possible detached retina - the other two were painful to the knees and shoulder but no head contact.
As far as I can see there appears to be a gradual eroding of the rights to ride and the slow transfer of "blame culture" to cyclists.
I've even been told in the past by drivers who've been, shall we say "aggressive" in their driving that it was perfectly OK to do that to me because I was wearing a helmet and would therefore be protected.

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mikese [1 post] 7 years ago
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They should probably get some kind of consulting agreement before going to court if they haven't already.

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OldRidgeback [2620 posts] 7 years ago
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As I ride a motorcycle as well, I think it's interesting to draw parallels between helmet laws for motorcycles and the lack of them for cyclists. Prior to 1976 when the helmet laws were introduced, the number of motorcyclists injured in accidents and suffering head injuries was far higher than after. Despite all the campaigns at the time against compulsory helmet use, the law was introduced and from the data produced afterwards it could be seen that this had a positive safety benefit for riders. So what's the difference between riding a motorcycle and a bicycle? Well not that much actually, and I can say this with some experience because I do a lot of miles on powered and non-powered two wheelers both on and off road. Motorbikes do go faster but most motorcycle accidents actually occur at lower speeds and not that much quicker in fact than for bicycle accidents. Most of the common types of motorcycle accidents are similar to bicycle accidents too, basically with drivers failing to look as the primary cause.

Basically, i think cycle helmets will become compulsory in a few years, whether we like it or not. Get used to the idea, it'll come.

I do think many and perhaps most cycle helmets offer limited protection and that a great deal more thought ahs to go into their design. Why anyone bother to wear a flimsy shell effort that sits on the head I can't imagine but then because I ride a motorbike as well, I'm used to the idea of having to wear something a little more substantial.

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cactuscat [284 posts] 7 years ago
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Quote:

Despite all the campaigns at the time against compulsory helmet use, the law was introduced and from the data produced afterwards it could be seen that this had a positive safety benefit for riders. So what's the difference between riding a motorcycle and a bicycle?

the main difference, and the crucial one, is that where compulsion laws have been introduced there is no corresponding safety benefit to be seen in the data. The number of helmets in use goes up, the proportion of head injuries remains constant. look at the data from australia and new zealand.

the second major difference is that motorbike helmets are designed to protect against impact at speed, whereas cycling helmets aren't.

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cactuscat [284 posts] 7 years ago
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and here's NZ

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OldRidgeback [2620 posts] 7 years ago
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Cactuscat - that's why I chose a cycle helmet that looks more like a skate lid: "I do think many and perhaps most cycle helmets offer limited protection and that a great deal more thought has to go into their design. Why anyone bother to wear a flimsy shell effort that sits on the head I can't imagine but then because I ride a motorbike as well, I'm used to the idea of having to wear something a little more substantial."

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Barry Fry-up [187 posts] 7 years ago
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in terms of protection - ie the impact protection that they're tested for - a piss pot's no different to a pro lid