Helmets and Compensation

[HF2300]

Don't see this is an issue. It's at most a first instance decision, but in fact when you read further doesn't even sound to have been decided on as it wasn't argued due to the lack of expert testimony. That doesn't sound like case law to me. Read past the first para and it sounds more like comments by the judge.

Might be the ambulance chasers are getting all excited about it though...

 

[MartinC]

Quote from the Beachcroft report:

"This High Court judgment confirms that a cyclist who fails to wear a helmet will be guilty of contributory negligence if the helmet would have prevented all of his injuries or made them a good deal less severe."

This is just a platitude. Someone now has to go into court and prove that "the helmet would have prevented all of his injuries or made them a good deal less severe". No-one's been able to do that in any previous case (and I believe there have been many). They weren't able to do it in this case. I don't believe that they'll be able to do it in any future case because there just isn't any evidence or any reasoned proposition that bears any scrutiny.

 

[gavintc]

The problem is that most judges are car drivers not cyclists. There is a general opinion in society that helmets are a 'good thing' so anyone arguing against it will have a perception to overcome before he can make his case. Personally, I think this a significant judgement and it will difficult to defend against without being 'partly responsible' for any injuries that a stupid car driver has inflicted.

 

[MartinC]

gavintc, I understand what you're saying. However this is happening in a legal environment. If an insurer is asserting that their liability is less because a helmet could've prevented some injury then they will have to prove it. This is very hard to do and why it failed this time and all the previous times.

The judge here appears to have said in principle the damages could be reduced but that it needs to be proven what that reduction could have been in the context of the accident.

I don't know how a legal precedent is set so I'm not sure if this is one. I think the judge has said 2 things here:

He's said that damages could be reduced if you can show that a helmet would've lessened the injuries. I don't think this is helpful (or right - it's blaming the victim - does it apply in rape cases?).

He's made it clear that a helmet doesn't necessarily help. He appears to have used one of the common arbitrary rule of thumb helmet benchmarks that they can't help in an accident at more than 12mph (there's also one that they can't mitigate in a collision with a motor vehicle).

The first point might be a worry but the second appears to pave the way for dismissing all claims for reduced damages.

 

[HJ]

In reality this is a non story, there was no legal precedent set, and if there had been it would be thrown out on appeal. It is more a case of poor journalism, look to see who really benefits from just stories, pick up any of Future Publishing Limited cycling magazines and just count the number of ads for cycle helmets! There is a lot of money make from misplaced fear.

 

[gavintc]

In reality this is a non story, there was no legal precedent set, and if there had been it would be thrown out on appeal. It is more a case of poor journalism, look to see who really benefits from just stories, pick up any of Future Publishing Limited cycling magazines and just count the number of ads for cycle helmets! There is a lot of money make from misplaced fear.

I like your thinking.

 

[Nortones2]

Its because most journalists are not aware of the principles of judicial precedent. No High Court judgement can set a precedent except on inferior courts: it's persuasive only on itself. And it has to be relevant to the circumstances, so if the case did not decide whether a helmet would prevent harm, at least to some extent, then it would be fairly easy to eliminate that argument (or distinguish in legal terms). Not until a case is appealed to a higher jurisdiction can a binding precedent be set. Here is a useful link: http://legal-directory.net/english-law/rules-of-precedent-civil-courts.htm

PS: I graduated in law, by the skin of my teeth, quite a while ago. My mitigation is that I was also studying Economics, and indulging in too much athletics I have no idea what's happening re the economy BTW, in company with many economists, and even more politicians

 

[purplepolly]

That study the other year into how close motorists found when overtaking cylists in various situations found that motorists consistently drove close to helmet wearing cyclists. A motorist who had hit a helmet wearing cyclist could use this research to argue that the cyclist had encouraged him to pass closer by appearing to be protected against impacts.

 

[User169]

That study the other year into how close motorists found when overtaking cylists in various situations found that motorists consistently drove close to helmet wearing cyclists. A motorist who had hit a helmet wearing cyclist could use this research to argue that the cyclist had encouraged him to pass closer by appearing to be protected against impacts.

But if you go down that route, we'll all have compulsory to be dressed as trannys.

 

[theboytaylor]

Its because most journalists are not aware of the principles of judicial precedent. No High Court judgement can set a precedent except on inferior courts: it's persuasive only on itself. And it has to be relevant to the circumstances, so if the case did not decide whether a helmet would prevent harm, at least to some extent, then it would be fairly easy to eliminate that argument (or distinguish in legal terms). Not until a case is appealed to a higher jurisdiction can a binding precedent be set. Here is a useful link: http://legal-directory.net/english-law/rules-of-precedent-civil-courts.htm

What Nortones2 said. This case does not introduce a precedent as it's a High Court case.

Also, the Beachcroft article appears to be from their insurance litigation dept, which suggests to me that they may have been acting for the motorcyclist/his insurers. Anyway, they are writing a precis for an insurance-oriented audience. Of course it would be a welcome development in their view and it may well encourage a couple of insurance companies to bring out the medical evidence next time they are confronted with this situation.

Finally, as CotterPin has said, there's not really a problem with arguing contributory negligence against a non-helmet wearer. The Froom v Butcher case mentioned involved someone not wearing a seatbelt in a car and was deemed to have been to some extent negligent by not doing so. Damages were reduced (not thrown out, reduced) because in that case it was easier to bring evidence that wearing a seatbelt would have reduced the extent of the claimant's injuries. As has been mentioned here (and elsewhere ad nauseum) the evidence is far sketchier that even wearing a helmet would reduce the extent of the injuries received.

I'd be surprised if barristers haven't been raising this point for ages - some of the case law I vaguely remember from my studies suggest that contributory negligence is raised on even the mildest pretext. It's just that someone picked up on this particular case.

No precedent, no law by the back door.

 

[bobg]

My apologies for this post being slighly at variance with the real thrust of the thread, but I thought i'd mention it. I had an consultation with a neurologist earlier this week and he asked me if I wore helmet while cycling. He pointed out that he regularly saw numerous cases of significant brain trauma resulting from cycling accidents where the patient had not worn a helmet which in his view might have been avoided had a helmet been worn. I read all the pro anti stuff on CC over the months and could be swayed either way, but those few words from a man who tries to fix people after the event carried some weight for me

 

[Cab]

Dammit, if only we had a neurologist or some kind of brain specialist posting here to give his view...

 

[magnatom]

My apologies for this post being slighly at variance with the real thrust of the thread, but I thought i'd mention it. I had an consultation with a neurologist earlier this week and he asked me if I wore helmet while cycling. He pointed out that he regularly saw numerous cases of significant brain trauma resulting from cycling accidents where the patient had not worn a helmet which in his view might have been avoided had a helmet been worn. I read all the pro anti stuff on CC over the months and could be swayed either way, but those few words from a man who tries to fix people after the event carried some weight for me

I work with neurologists, neurosurgeons, neuroradiologists etc. I can safely say that (in general) their understanding of the risk/benefit analysis with regards to the use of helmets in cycling is (in general) a big fat zero. They understand how to fix things, but when it comes to understanding the mechanics/physics behind traumatic brain injury their knowledge falls to general public levels. There are exceptions but they are rare.

 

[magnatom]

Dammit, if only we had a neurologist or some kind of brain specialist posting here to give his view...

Tada! (Clinical Physicist who works in the area of brain scanning)

 

[BentMikey]

Funnily enough there's a good quote from a neurowhatsit saying that he doesn't think a helmet would help in the slightest.