# Contributory Negligence???



## Slim (4 Jan 2010)

We had a discussion at work (an insurance company) regarding information gathered as part of a customer making a claim.

The topic of cyclists and helmets came up and the "subject matter experts" were adamant that it was vital that, in the case of a cyclist being injured, it should be recorded whether the cyclist was wearing a helmet or not. This was to reduce the payout due to contributory negligence. 

I questioned this at the time but was reluctant to push too hard. Is there a legal precedent in effect or is it at the judge's discretion? I'm sure the matter will come up again and would like some harder facts to back up my case.


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## bauldbairn (4 Jan 2010)

Slim said:


> We had a discussion at work (an insurance company) regarding information gathered as part of a customer making a claim.
> 
> The topic of cyclists and helmets came up and the "subject matter experts" were adamant that it was vital that, in the case of a cyclist being injured, it should be recorded whether the cyclist was wearing a helmet or not. This was to reduce the payout due to contributory negligence.
> 
> I questioned this at the time but was reluctant to push too hard. Is there a legal precedent in effect or is it at the judge's discretion? I'm sure the matter will come up again and would like some harder facts to back up my case.



Not cycle related - in industry(heavy engineering) it doesn't matter what injury you have - you generally have to be wearing safety boots(and now sometimes safety glasses) to be covered by insurance(not sure if this is company policy, to keep claims down). 
Even for a finger injury. It's always the first question asked - "were you wearing safety boots/glasses/overalls?" if not, it's considered contributory negligence.


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## addictfreak (4 Jan 2010)

Slim said:


> We had a discussion at work (an insurance company) regarding information gathered as part of a customer making a claim.
> 
> The topic of cyclists and helmets came up and the "subject matter experts" were adamant that it was vital that, in the case of a cyclist being injured, it should be recorded whether the cyclist was wearing a helmet or not. This was to reduce the payout due to contributory negligence.
> 
> I questioned this at the time but was reluctant to push too hard. Is there a legal precedent in effect or is it at the judge's discretion? I'm sure the matter will come up again and would like some harder facts to back up my case.



By no means an expert, but as the wearing of a cycle helmet is not compulsory it may not be possible to claim contributory negligence.

But im sure there will be someone on the forum who is better informed


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## kettle (4 Jan 2010)

See this on CTC.
http://forum.ctc.org.uk/viewtopic.php?f=6&t=25956


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## addictfreak (4 Jan 2010)

The judges words:

Britain's cyclists reacted in uproar yesterday to a High Court ruling that they can be blamed for their injuries if they don't wear a helmet – even if the accident itself was caused by someone else.

"There can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury," Mr Justice Williams said, making the unprecedented ruling on an accident involving a motorbike and a cycle in Brightlingsea, Essex in June 2005.

"A cyclist is free to choose whether or not to wear one," he said in the legal ruling. But not doing so means "any injury sustained may be the cyclist's own fault and 'He has only himself to thank for the consequences'."


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## Origamist (4 Jan 2010)

Article by Martin Porter QC:

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


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## wafflycat (5 Jan 2010)

Doesn't surprise me at all. Contributory negligence is a standard issue looked at when legal claims are made. And if you've ever seen the TV programmes where plod is looking at 'accidents' you'll see lots of action being taken to find out if the victims of any 'accident' contributed to their own demise. I watched one some time ago (I don't normally watch these things but was drawn in as it involved a cyclist) which was about a cyclist being hit by a HGV. The driver of the HGV insisted that the cyclist had no lights and was veering about the lane and couldn't be seen. The plod involved were searching the scene and found evidence of shattered light, and CCTV evidence showed the cyclist was wearing high-viz, using lights & wearing a lid. What struck me was the chat amongst plod where the emphasis seemed to be that if the cyclist was in any way missing one bit of kit, then he or she would have been held up as being at fault. It was almost as if they were looking to absolve the driver of blame and NOT trying to find out what had actually happened (no matter whose 'fault' it eventually turned out to be). The bias was distinctly on the side of the driver. As it turned out, because of finding the light & the CCTV, the driver was taken to court (and then got off with a retraining course even though the cyclist was hospitalised for some time).


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## Norm (5 Jan 2010)

I didn't see the program so I can't comment on the specifics, WC, but if the cyclist was in any way to blame, then they should be held partially responsible. 

I don't get the police attitude that we are to blame if we are not wearing stuff which we don't need to wear by law but if, for instance, the cyclist didn't have lights, then that would / could have been part of the reason for the accident.

Conversely, I hit a cyclist when driving and I was treated as if I was entirely to blame, including the warning that I could be prosecuted. Fortunately, for me, CCTV showed that I was doing about 10mph and braking at the time of the impact, and confirmed not only that the cyclist had no lights at night in the rain, but he was also riding the wrong way on a one way path and cycled straight out in front of me from behind a wall. I had to get the CCTV footage myself, though, the police were perfectly happy to continue with the prosecution.

The subject of helmet and hi-viz never came up.


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## Dan B (5 Jan 2010)

See also http://www.ctc.org.uk/DesktopDefault.aspx?TabID=5180 : 


> Although not open to challenge, Paul Kitson (the partner at RJW Solicitors who run CTC’s legal service) believes the judge’s remarks will, in practice, have little if any effect on the legal position. His words are probably no more than an “obiter dicta”, ie comments made in passing, which could in principle influence future cases but are not binding. In practice, any case serious enough to come to court is almost bound to involve impact forces greater than cycle helmets are designed to cope with. That was certainly the judge’s conclusion in this and all other such cases which the courts have decided on so far, and it is hard to imagine a case where the opposite conclusion is reached. [...]
> The good news, though, is that Mr Justice Griffith Williams did award cyclist Robert Smith full compensation, ruling that his particular injuries would not have been prevented by a helmet: the impact speed was above 12mph and the blow was to the back of Smith's head, an area not necessarily protected by a helmet.


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## dellzeqq (5 Jan 2010)

Slim - tell us what insurance company this is and we'll boycott it.

In truth insurance companies will try any old rubbish. Counterclaims for damages to front bumpers included. That's why you should join the CTC or the LCC or BC (but preferably the CTC). Having third party insurance means you can spit in the eye of the insurer.


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## dellzeqq (5 Jan 2010)

Slim - tell us what insurance company this is and we'll boycott it.

In truth insurance companies will try any old rubbish. Counterclaims for damages to front bumpers included. That's why you should join the CTC or the LCC or BC (but preferably the CTC). Having third party insurance means you can spit in the eye of the insurer.


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## Dan B (5 Jan 2010)

bauldbairn said:


> Not cycle related - in industry(heavy engineering) it doesn't matter what injury you have - you generally have to be wearing safety boots to be covered by insurance(not sure if this is company policy, to keep claims down). Even for a finger injury. It's always the first question asked - "were you wearing safety boots?"


I believe that's because safety boots are classed in law as Personal Protective Equipment. Cycle helmets aren't

But if the Health & Safety at Work law all applied to roads too they'd be _very_ different places ...


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## Dan B (5 Jan 2010)

bauldbairn said:


> Not cycle related - in industry(heavy engineering) it doesn't matter what injury you have - you generally have to be wearing safety boots to be covered by insurance(not sure if this is company policy, to keep claims down). Even for a finger injury. It's always the first question asked - "were you wearing safety boots?"


I believe that's because safety boots are classed in law as Personal Protective Equipment. Cycle helmets aren't

But if the Health & Safety at Work law all applied to roads too they'd be _very_ different places ...


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## wafflycat (5 Jan 2010)

Norm said:


> I didn't see the program so I can't comment on the specifics, WC, but if the cyclist was in any way to blame, then they should be held partially responsible.



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. 





Norm said:


> I don't get the police attitude that we are to blame if we are not wearing stuff which we don't need to wear by law but if, for instance, the cyclist didn't have lights, then that would / could have been part of the reason for the accident.
> 
> Conversely, I hit a cyclist when driving and I was treated as if I was entirely to blame, including the warning that I could be prosecuted. Fortunately, for me, CCTV showed that I was doing about 10mph and braking at the time of the impact, and confirmed not only that the cyclist had no lights at night in the rain, but he was also riding the wrong way on a one way path and cycled straight out in front of me from behind a wall. I had to get the CCTV footage myself, though, the police were perfectly happy to continue with the prosecution.
> 
> The subject of helmet and hi-viz never came up.



Entirely the opposite of the programme I saw, then. And the opposite of when a friend was hit when he was cycling along a road (in full daylight, clear visibility, wearing fluorescent clothing & wearing a lid) and was hit by a driver pulling out of a driveway - a SMIDSY - and the local plod really were not interested and took no action whatsoever against the driver, not even a slap on the wrist.


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## wafflycat (5 Jan 2010)

Norm said:


> I didn't see the program so I can't comment on the specifics, WC, but if the cyclist was in any way to blame, then they should be held partially responsible.



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. 





Norm said:


> I don't get the police attitude that we are to blame if we are not wearing stuff which we don't need to wear by law but if, for instance, the cyclist didn't have lights, then that would / could have been part of the reason for the accident.
> 
> Conversely, I hit a cyclist when driving and I was treated as if I was entirely to blame, including the warning that I could be prosecuted. Fortunately, for me, CCTV showed that I was doing about 10mph and braking at the time of the impact, and confirmed not only that the cyclist had no lights at night in the rain, but he was also riding the wrong way on a one way path and cycled straight out in front of me from behind a wall. I had to get the CCTV footage myself, though, the police were perfectly happy to continue with the prosecution.
> 
> The subject of helmet and hi-viz never came up.



Entirely the opposite of the programme I saw, then. And the opposite of when a friend was hit when he was cycling along a road (in full daylight, clear visibility, wearing fluorescent clothing & wearing a lid) and was hit by a driver pulling out of a driveway - a SMIDSY - and the local plod really were not interested and took no action whatsoever against the driver, not even a slap on the wrist.


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## Norm (5 Jan 2010)

wafflycat said:


> ...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.


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## Norm (5 Jan 2010)

wafflycat said:


> ...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.


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## Coco (5 Jan 2010)

wafflycat said:


> 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.


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## Coco (5 Jan 2010)

wafflycat said:


> 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.


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## MartinC (5 Jan 2010)

Origamist said:


> 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.


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## MartinC (5 Jan 2010)

Origamist said:


> 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.


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## gavintc (5 Jan 2010)

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.


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## gavintc (5 Jan 2010)

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.


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## dellzeqq (5 Jan 2010)

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


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## dellzeqq (5 Jan 2010)

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


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## MartinC (5 Jan 2010)

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.


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## MartinC (5 Jan 2010)

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.


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## Origamist (5 Jan 2010)

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.


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## Origamist (5 Jan 2010)

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.


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## Slim (5 Jan 2010)

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.


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## Slim (5 Jan 2010)

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.


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## marinyork (5 Jan 2010)

I wondered how would the company practically verify that they were wearing a helmet?

It seems quite a dangerous route to go down because you could have a claim and then the other party fills in the forms a few months later and have a section on helmets and it would be overwhelmingly tempting to say no they weren't wearing a helmet. Once you arm someone with the knowledge about helmets and perhaps even a section dedicated to finding out whether they were wearing a helmet people will be exploiting it. 

I remember being interviewed by an insurance investigator and when they found out I was a cyclist you could almost imagine them jotting down on the piece of paper - cyclist, must be lying, company should dismiss anything they say.


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## marinyork (5 Jan 2010)

I wondered how would the company practically verify that they were wearing a helmet?

It seems quite a dangerous route to go down because you could have a claim and then the other party fills in the forms a few months later and have a section on helmets and it would be overwhelmingly tempting to say no they weren't wearing a helmet. Once you arm someone with the knowledge about helmets and perhaps even a section dedicated to finding out whether they were wearing a helmet people will be exploiting it. 

I remember being interviewed by an insurance investigator and when they found out I was a cyclist you could almost imagine them jotting down on the piece of paper - cyclist, must be lying, company should dismiss anything they say.


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## Slim (5 Jan 2010)

The thing to remember is that they are in business to screw as much money out of people as they can in the way of premiums. They will also do as much as possible to pay as little as they can, as late as they can. "Doing the right thing" isn't even on the agenda.

I was just hoping for a minor victory (but wasn't holding my breath).


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## CopperBrompton (5 Jan 2010)

Insurance companies will always give this a go. It's why there was so much opposition amongst motorcyclists to the advice added to the Highway Code to wear hi-viz and a white helmet: the fear was that, although it's only advice, failing to follow it would open the door to a contributory negligence claim.


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## MartinC (6 Jan 2010)

I know that Insurance companies trying this on creates a lot of fear and irritation but as Ben points out they're bound to give it a go because it's in the interests of their policyholders as well as their shareholders. 

The significant thing is what the courts decide and every (AFAIK) ruling so far has not reduced damages. The more this is tested in the courts the better. Eccentric judges can always come up with strange decisions but there isn't any evidence that stands up to legal scrutiny that helmets are effective in accidents involving motor accidents so the more times the arguments get exercised in court the better.


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## Origamist (6 Jan 2010)

MartinC said:


> *The significant thing is what the courts decide and every (AFAIK) ruling so far has not reduced damages.* The more this is tested in the courts the better. Eccentric judges can always come up with strange decisions but there isn't any evidence that stands up to legal scrutiny that helmets are effective in accidents involving motor accidents so the more times the arguments get exercised in court the better.



Correct and worth reapeating. 

In the _Smith v Finch_ case the judge was of the view, or had sympathy with the view that the cyclist was at fault for not wearing a helmet. These comments were seemingly/arguably _obiter_. However, the defendant was unable to prove that a helmet would have made any difference - as a consequence, no reduction in damages was made.


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