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

Highest appeal court overturns ruling, awards doored rider full damages

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.”

John has been writing about bikes and cycling for over 30 years since discovering that people were mug enough to pay him for it rather than expecting him to do an honest day's work.

He was heavily involved in the mountain bike boom of the late 1980s as a racer, team manager and race promoter, and that led to writing for Mountain Biking UK magazine shortly after its inception. He got the gig by phoning up the editor and telling him the magazine was rubbish and he could do better. Rather than telling him to get lost, MBUK editor Tym Manley called John’s bluff and the rest is history.

Since then he has worked on MTB Pro magazine and was editor of Maximum Mountain Bike and Australian Mountain Bike magazines, before switching to the web in 2000 to work for Along with founder Tony Farrelly, John was on the launch team for and subsequently became editor in chief of Future Publishing’s group of cycling magazines and websites, including Cycling Plus, MBUK, What Mountain Bike and Procycling.

John has also written for Cyclist magazine, edited the BikeMagic website and was founding editor of before handing over to someone far more representative of the site's main audience.

He joined in 2013. He lives in Cambridge where the lack of hills is more than made up for by the headwinds.

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