Contributory Negligence???

[Norm]

...and the local plod really were not interested and took no action whatsoever against the driver, not even a slap on the wrist.

As I said, a strange attitude. It generally doesn't take much for a driver to feel chastened. The warning that I could be prosecuted meant that I was, for instance, as worried as **** and changed my approach to that junction entirely, even though I was pretty much completely free of blame. And this was 6 years ago, before I rediscovered the joy of the self-propelled chariot.

 

[Norm]

...and the local plod really were not interested and took no action whatsoever against the driver, not even a slap on the wrist.

As I said, a strange attitude. It generally doesn't take much for a driver to feel chastened. The warning that I could be prosecuted meant that I was, for instance, as worried as **** and changed my approach to that junction entirely, even though I was pretty much completely free of blame. And this was 6 years ago, before I rediscovered the joy of the self-propelled chariot.

 

[Coco]

Of course, but that's not what was happening. It was as if they emphasis was more on looking at ways of NOT blaming the motorist. That if any minor flaw on the part of the cyclist was discovered, then the motorist would have been absolved of all blame.

Not totally sure how it works in your country, but I thought the role of the police was to gather evidence related to the incident and then another authority (CPS?) decides if there is a case to answer. So in this case I would expect the Police to look for any evidence that may explain the situation, but their opinion would be only that.

 

[Coco]

Of course, but that's not what was happening. It was as if they emphasis was more on looking at ways of NOT blaming the motorist. That if any minor flaw on the part of the cyclist was discovered, then the motorist would have been absolved of all blame.

Not totally sure how it works in your country, but I thought the role of the police was to gather evidence related to the incident and then another authority (CPS?) decides if there is a case to answer. So in this case I would expect the Police to look for any evidence that may explain the situation, but their opinion would be only that.

 

[MartinC]

http://www.newlawjournal.co.uk/nlj/content/personal-injury-blame-victim

"However, Smith was spared a reduction in his damages by the defendant's inability to prove that a helmet would have made any difference."

So, no change there then.

AFAIK the legal position in the UK is that if you could've taken reasonable steps to mitigate the outcome then your may be partly responsible for the severity of the outcome. However no-one in the last 40 years or so has been able to prove that cycle helmets do anything and it doesn't seem likely to happen any time soon.

 

[MartinC]

http://www.newlawjournal.co.uk/nlj/content/personal-injury-blame-victim

"However, Smith was spared a reduction in his damages by the defendant's inability to prove that a helmet would have made any difference."

So, no change there then.

AFAIK the legal position in the UK is that if you could've taken reasonable steps to mitigate the outcome then your may be partly responsible for the severity of the outcome. However no-one in the last 40 years or so has been able to prove that cycle helmets do anything and it doesn't seem likely to happen any time soon.

 

[gavintc]

I was a reasonably regular helmet wearer, I would wear one on most trips, but would on occasion decide to not wear a helmet. Since the judgement quoted, I have decided to become a definite helmet wearer. I know this is a little bit sad and many will argue self defeating as it makes helmet usage more of 'the norm' supporting for the legal decision. But from a personal perspective, I do not want my family to lose out on any compensation due if a driver could find wriggle room in a court's decision. I now wear a helmet all the time.

 

[gavintc]

I was a reasonably regular helmet wearer, I would wear one on most trips, but would on occasion decide to not wear a helmet. Since the judgement quoted, I have decided to become a definite helmet wearer. I know this is a little bit sad and many will argue self defeating as it makes helmet usage more of 'the norm' supporting for the legal decision. But from a personal perspective, I do not want my family to lose out on any compensation due if a driver could find wriggle room in a court's decision. I now wear a helmet all the time.

 

[dellzeqq]

I think that's entirely understandable - but, as you say, sad.

 

[dellzeqq]

I think that's entirely understandable - but, as you say, sad.

 

[MartinC]

Gavin, I think that's understandable too.

My reaction is the opposite though. It's another case where the judge has allowed has accepted the concept of contributory negligence in not wearing a helmet (which is still argued by other legal opinion) but has then dismissed it's application because the effectiveness would need to be proved. In this particular case I believe the judge was quoted as saying the because helmets were only tested "up to 12 mph" it clearly wasn't applicable in the circumstances (and thus by implication in almost any other serious incident involving a motor vehicle).

I think that it's very helpful that the efficacy of helmets is tested in a legal environment. At the moment I'm not aware that any of the manufacturers or standards bodies make any claims that they're effective in preventing serious injury. There's a common perception or assumption that they do but this wont be enough to withstand challenge in a court. The more often this is challenged in a disciplined argument the better - eventually either the case will be made or the assumption will fall into disrepute.

 

[MartinC]

Gavin, I think that's understandable too.

My reaction is the opposite though. It's another case where the judge has allowed has accepted the concept of contributory negligence in not wearing a helmet (which is still argued by other legal opinion) but has then dismissed it's application because the effectiveness would need to be proved. In this particular case I believe the judge was quoted as saying the because helmets were only tested "up to 12 mph" it clearly wasn't applicable in the circumstances (and thus by implication in almost any other serious incident involving a motor vehicle).

I think that it's very helpful that the efficacy of helmets is tested in a legal environment. At the moment I'm not aware that any of the manufacturers or standards bodies make any claims that they're effective in preventing serious injury. There's a common perception or assumption that they do but this wont be enough to withstand challenge in a court. The more often this is challenged in a disciplined argument the better - eventually either the case will be made or the assumption will fall into disrepute.

 

[Origamist]

Gavin's post does support Porter's fears re: the possible repercussions of the judgment in Smith v Finch [2009] EWCH 53 (QB) though:

It is not clear that the judge recognised the extent to which his judgment will undermine his observation that a cyclist is free to choose whether or not to wear a helmet. The threat of losing 15% (or conceivably more) of the damages that would otherwise properly be due, were the worst to happen, is a far greater sanction than a £30 fixed penalty notice (the greatest likely criminal sanction were riding without a helmet to be criminalised). Many within the cycling community are rightly aghast at the implications of this ruling.

Op. cit.

 

[Origamist]

Gavin's post does support Porter's fears re: the possible repercussions of the judgment in Smith v Finch [2009] EWCH 53 (QB) though:

It is not clear that the judge recognised the extent to which his judgment will undermine his observation that a cyclist is free to choose whether or not to wear a helmet. The threat of losing 15% (or conceivably more) of the damages that would otherwise properly be due, were the worst to happen, is a far greater sanction than a £30 fixed penalty notice (the greatest likely criminal sanction were riding without a helmet to be criminalised). Many within the cycling community are rightly aghast at the implications of this ruling.

Op. cit.

 

[Slim]

Thanks for all the replies.

Unfortunately, it looks like while there is a possibility for the company to reduce or wriggle out of a payment they will make every effort to do so. As with their employment practises, the bottom line is on their bank balance.