£850 fine for causing brain damage

[benb]

Yes and no, I quite often see riders dawdling along who are not concerned with their speed but they still go through red lights in order to save a little time.

I'm not being deliberately thick, honest, but I can't understand the difference. Saving time = speed, regardless of their cycling pace.

 

[hoopdriver]

Exactly.

 

[BSRU]

I'm not being deliberately thick, honest, but I can't understand the difference. Saving time = speed, regardless of their cycling pace.

No, I think I am just being obtuse.

 

[hoopdriver]

Oh. Okay.

 

[Red Light]

That did not set a precedent for helmetless contributory negligence. The judges remarks in relation to the lack of a helmet were obiter dicta in that case and are not binding on any subsequent case.

I think you are misunderstanding the meaning of precedent.


GC

It is a case in the High Court and until the Appeal or Supreme Court reverse it it is the precedent. And I have spent far too many hours with leading QCs in the High and Appeal Court not to know what the meaning of precedent is. As for obiter dicta, it was addressing two of the principle issues of the case and set out the judge's conclusions on those principal issues i.e rationes decidendi not obiter dicta and therefore setting the precedent.

The principal issues​

<....>​

v) If the Defendant's negligence was primarily responsible for the collision, was there any contributory negligence on the Claimant's part?​

vi) Did the Claimant take reasonable care for his own safety by not wearing a cycle helmet, and if so would his head injuries have been prevented or reduced in severity had he been wearing an approved helmet so that it would be just and equitable in all the circumstances to reduce his damages.​

​

and from the Case Digest:

Summary: Despite there being no legal compulsion for cyclists to wear helmets, a cyclist not wearing a helmet was, like a car-user not wearing a seatbelt, exposing himself to a greater risk of injury and ran the risk of contributing to his own injuries in the event of an accident caused by another road user.​

​

And to answer the other posts on this at the same time, there are two separate steps involved. Smith v Finch determined the principle that not wearing a helmet can be contributory negligence by the cyclist with a consequent reduction in damages in line with the principles set out by the Appeal Court in Froom & Ors v Butcher [1975]. But then the facts of each particular case would determine whether or not there was a contribution. In all of the cases so far, the Court has concluded either that a helmet would not have made any difference in the circumstances or that the Defence had not demonstrated to the Courts satisfaction that it would have made a difference.

Thus from the Case Digest for Smith v Finch:

On the balance of probabilities, S had hit the ground at a speed greater than 12 mph so the wearing of a helmet would have made no difference to the injuries sustained. Moreover, the scalloped shape of most modern helmets would probably not have prevented S's injuries, given the location of the impact on the back of his head. Even if the impact speed had been low enough for a helmet to have afforded protection, F had adduced no medical evidence to support his case that S's injuries would have been reduced or prevented by his wearing a helmet. Accordingly, F had failed to discharge the burden of proving contributory negligence.​

I suspect that if the Court were faced with a simple fall within a helmet's certified design parameters, or an on the ball Defence and not on the ball Claimant the outcome may not be so favourable.

 

[MrHappyCyclist]

And to answer the other posts on this at the same time, there are two separate steps involved. Smith v Finch determined the principle that not wearing a helmet can be contributory negligence by the cyclist with a consequent reduction in damages in line with the principles set out by the Appeal Court in Froom & Ors v Butcher [1975]. But then the facts of each particular case would determine whether or not there was a contribution. In all of the cases so far, the Court has concluded either that a helmet would not have made any difference in the circumstances or that the Defence had not demonstrated to the Courts satisfaction that it would have made a difference.

I am aware that there are two separate steps involved. My point was that the reason the judgement on the theoretical principle (that not wearing a helmet could constitute contributory negligence if it can be proved to have made a difference) has not been appealed is because there has never yet been a case in which it would be likely to be appealed, as it has never yet had a material impact on the outcome of any case. You are right, then, that the judgement sets a precedent (I'll give you that), but I suspect it is a very weak one that may well be overturned in a future appeal if there ever arises a case in which the circumstances do result in a material difference in the outcome of the case, especially given that cycling has been shown statistically to be no more dangerous than walking, in which there is no expectation that a walker should wear a helmet. This point is of note in your quote from the Smith V. French case: "F had adduced no medical evidence to support his case that S's injuries would have been reduced or prevented by his wearing a helmet", so I suspect that this precedent may well stand for a long time yet as a practical irrelevance.
This is, of course, a helmet debate, which probably belongs in another forum.

 

[glasgowcyclist]

With all due respect to your proximity to the judicial process, I think you are mistaken in your reading of this.

The ratio decidendi form the legal principle, creating a binding precedent which must be followed in susbsequent cases where the material facts are the same. The obiter dicta are comments made in the course of a judgement which are not necessary for the decision in hand. Whilst such comments may be persuasive in future cases, they are not binding.

In Smith v Finch, the judge found that no contributory negligence could be attributed to the defendant and had he worn a helmet, it would not have had any effect on the injuries sustained "...even if the impact speed was a low enough speed for the helmet to have afforded protection". That was how he answered the questions posed in the principle issues you quote (ratio decidendi).

While it is true that he also expressed the view that a cyclist should wear a helmet, and that anyone who doesn't may expose himself to greater risk of injury and may be at fault for his injuries (my emphases), these comments had no bearing on his decision of the case in hand and therefore are to be regarded as an aside (obiter dicta).


GC

 

[Miquel In De Rain]

It is not necessarily about speed more to do with saving precious seconds.

Everybody on the road tries to save seconds in one way or another.Peds will cross when the traffic light has changed to green,no?

I see it day in day out and it can be dodgy for the ped involved.

 

[Crankarm]

Smith v Finch may well prove to be an anomoly until such time as the issue of wearing a helmet is finally put to test on appeal against a judgement that finds a cyclist, who was not at fault for a collision, but who was found to be contributory negligent as he or she wasn't wearing a helmet whether out of choice or because there in NO legal requirement to wear one, has their damages reduced and thus the case is appealed. The decision in Smith v Finch can be over ruled and the obiter dicta ignored as an anomoly. For the courts to insist that the lack of wearing a helmet when cycling means cyclists who are involved in collisions and who suffer head injuries are contributory negligent and should accordingly have their damages reduced is subverting Parliament as Parliament has as yet to make the wearing of helmets while cycling compulsory. I suspect the judge in Smith v Finch was anti-cyclist. Lord Denning would not have tolerated such rot put forward by counsel for an insurer or defendant.

And to compare not wearing a helmet when cycling to not wearing a seat belt when driving, there is one striking difference. Wearing a seat belt whilst driving is a legal requirement, there is NO legal requirement to wear a helmet when cycling. Period.

 

[Red Light]

I am aware that there are two separate steps involved. My point was that the reason the judgement on the theoretical principle (that not wearing a helmet could constitute contributory negligence if it can be proved to have made a difference) has not been appealed is because there has never yet been a case in which it would be likely to be appealed, as it has never yet had a material impact on the outcome of any case. You are right, then, that the judgement sets a precedent (I'll give you that), but I suspect it is a very weak one that may well be overturned in a future appeal if there ever arises a case in which the circumstances do result in a material difference in the outcome of the case, especially given that cycling has been shown statistically to be no more dangerous than walking, in which there is no expectation that a walker should wear a helmet. This point is of note in your quote from the Smith V. French case: "F had adduced no medical evidence to support his case that S's injuries would have been reduced or prevented by his wearing a helmet", so I suspect that this precedent may well stand for a long time yet as a practical irrelevance.
This is, of course, a helmet debate, which probably belongs in another forum.

All you are confirming is what everyone knows in the legal world - that a precedent remains a precedent until it is overturned by a higher Court - in this case the Appeal Court or the Supreme Court and I doubt it would ever receive permission to go to the Supreme Court which reserves itself for matters of significance. And it will require someone with deep pockets to take it to the Appeal Court.

Until then the principle remains that if the Defence can persuade the Court that a helmet would have made a difference, the cyclist will be considered as contributory negligent. The fact that till now there have been very few cases and they were poorly prepared by the Defence - especially in Smith v Finch where they didn't quite know where the judge would be going in his judgement - doesn't remove the principle of cyclists being potentially contributory negligent for not wearing a helmet. All they have failed to do so far is prove that a helmet would have made a difference in those particular cases.

 

[Red Light]

Smith v Finch may well prove to be an anomoly until such time as the issue of wearing a helmet is finally put to test on appeal against a judgement that finds a cyclist, who was not at fault for a collision, but who was found to be contributory negligent as he or she wasn't wearing a helmet whether out of choice or because there in NO legal requirement to wear one, has their damages reduced and thus the case is appealed. The decision in Smith v Finch can be over ruled and the obiter dicta ignored as an anomoly. For the courts to insist that the lack of wearing a helmet when cycling means cyclists who are involved in collisions and who suffer head injuries are contributory negligent and should accordingly have their damages reduced is subverting Parliament as Parliament has as yet to make the wearing of helmets while cycling compulsory. I suspect the judge in Smith v Finch was anti-cyclist. Lord Denning would not have tolerated such rot put forward by counsel for an insurer or defendant.

And to compare not wearing a helmet when cycling to not wearing a seat belt when driving, there is one striking difference. Wearing a seat belt whilst driving is a legal requirement, there is NO legal requirement to wear a helmet when cycling. Period.

Smith v Finch can only be overturned by a decision of the Appeal Court or Supreme Court. And since it considered the fact that a helmet is not legally required but reached its decision on contributory negligence nevertheless, that is irrelevant in respect of a precedent for other cases. And despite the obiter dicta comments of GC earlier, this issue is clearly the core issue of the case and anything but. Its a High Court confirmation that the principles of Froom v Butcher on seat belts also apply to helmets.

 

[Red Light]

With all due respect to your proximity to the judicial process, I think you are mistaken in your reading of this.

The ratio decidendi form the legal principle, creating a binding precedent which must be followed in susbsequent cases where the material facts are the same. The obiter dicta are comments made in the course of a judgement which are not necessary for the decision in hand. Whilst such comments may be persuasive in future cases, they are not binding.

In Smith v Finch, the judge found that no contributory negligence could be attributed to the defendant and had he worn a helmet, it would not have had any effect on the injuries sustained "...even if the impact speed was a low enough speed for the helmet to have afforded protection". That was how he answered the questions posed in the principle issues you quote (ratio decidendi).

While it is true that he also expressed the view that a cyclist should wear a helmet, and that anyone who doesn't may expose himself to greater risk of injury and may be at fault for his injuries (my emphases), these comments had no bearing on his decision of the case in hand and therefore are to be regarded as an aside (obiter dicta).


GC

Au contraire monsieur. The judge found that the cyclist could be liable to contributory negligence for not wearing a helmet. But he found that in this particular case the Defence had not proved to his satisfaction that it would have made any difference in these circumstances so the contribution was zero. He definitely did not reach the conclusion required to reach your interpretation, which is that contribution in general of helmets is zero. If another case can persuade the Court that in the specific circumstances of that case a helmet would have made a difference then the cyclist will under the precedent of Smith v Finch, have their damages reduced because of their not wearing a helmet. So back to the original point, if the Defence can convince the Court that the pedestrian would have had reduced injuries if they had worn a helmet should they too get their compensation reduced?

 

[Rancid]

is it to late to jump on the bandwagon.
All RLJ should be hung drawn and quartered.
And shot
and shot again.

 

[benb]

is it to late to jump on the bandwagon.
All RLJ should be hung drawn and quartered.
And shot
and shot again.

That sounds slightly disproportionate.

 

[glasgowcyclist]

And despite the obiter dicta comments of GC earlier, this issue is clearly the core issue of the case and anything but.

So far as I'm aware, when a judge speculates about what the outcome of a case might have been, had the facts of the case been different, that is obiter dictum.

GC