# £850 fine for causing brain damage



## PK99 (4 Jul 2012)

Cyclist who left solicitor brain-damaged fined £850

http://www.thetimes.co.uk/tto/public/cyclesafety/article3464777.ece


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## LosingFocus (4 Jul 2012)

> “I want the whole world to know that cyclists have a duty of care to behave like human beings,” she said. *“It’s about time people stopped worrying about cyclists being killed by lorries* if they do not conduct themselves in the right manner. He nearly killed my husband.”


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## sabian92 (4 Jul 2012)

I saw that as well.

Can we not worry about BOTH things? How many cyclists are killed by lorries every year?

That fine is pathetic but his wife needs her head checking.


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## peedee (4 Jul 2012)

The fine is indeed pathetic but that is the limit that the law allows. To have prosecuted a higher offence (ABH perhaps) may have required evidence of intent to cause injury. If this had been caused by a car then a jail sentence would have been an option. When the cyclist is the cause there are few options available.

It would be easy to say that the law should be strengthened, however incidents like this are, thankfully, very very rare. One off incidents should not be used to write laws.

The second last paragraph of the report states that the judge did not award compensation because civil proceedings will almost certainly follow. These will probably bankrupt the cyclist unless he has insurance.

Time to look at that insurance offer again...


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## dawesome (4 Jul 2012)

peedee said:


> These will probably bankrupt the cyclist unless he has insurance.


 
- probably.


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## Stonepark (4 Jul 2012)

He injured a lawyer, just wait for the civil action case now he has been found guilty.


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## MissTillyFlop (4 Jul 2012)

PK99 said:


> Cyclist who left solicitor brain-damaged fined £850
> 
> http://www.thetimes.co.uk/tto/public/cyclesafety/article3464777.ece


 
Her husband just had his life ruined, and then was raped by the judgement. I think we should let her make an angry, upset, untrue and spurious comment when she is clearly extremely distressed. It's the publication that printed it, knowing the circumstances and her emotional state at the time who need the rap here.


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## PK99 (4 Jul 2012)

Stonepark said:


> He injured a lawyer, just wait for the civil action case now he has been found guilty.


 
And the claim will not be small:
http://www.rosenblatt-law.co.uk/people/details-clive-hyer-10680


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## User269 (4 Jul 2012)

My sympathy goes out to the victim and his family, no matter who was actually to blame. I think we all need to slow down in town, whether cycling or driving. I know some cyclists think that riding at the same speed as the cars is the right way, but on the rare occasions I'm in town I slow down on the assumption that various pedestrians, motorists, and other cyclists won't see me because I'm smaller than a car, and that if I do have a collision I don't have airbags or crumple zones, and even if I did, I could still kill or injure someone apart from myself.

Some old data I had on file, guess it's still much the same;

*Pedestrian casualties 2001-09*


Killed by cycles: 18
Seriously injured by cycles: 434
Killed by cars: 3,495
Seriously injured by cars: 46,245
Figures apply to Great Britain. Source: Department for Transport


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## BSRU (4 Jul 2012)

User269 said:


> My sympathy goes out to the victim and his family, no matter who was actually to blame. I think we all need to slow down in town, whether cycling or driving. I know some cyclists think that riding at the same speed as the cars is the right way, but on the rare occasions I'm in town I slow down on the assumption that various pedestrians, motorists, and other cyclists won't see me because I'm smaller than a car, and that if I do have a collision I don't have airbags or crumple zones, and even if I did, I could still kill or injure someone apart from myself.
> 
> Some old data I had on file, guess it's still much the same;
> 
> ...


 
This incident has nothing really to do with speed people cycle/drive at.
The guy jumped a red light and cycled into a pedestrian crossing the road, the cyclist even had the nerve to tell the pedestrian to get out of his way. Hopefully the civil courts will take him to the cleaners.


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## BentMikey (4 Jul 2012)

It sounds like that cyclist is a James Blunt of the first degree. I've no sympathy with him, and every sympathy with the victim and his family.


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## downfader (4 Jul 2012)

That really is a shockingly low fine..?! I take it the CCTV evidence was conclusive that it was a) an RLJ and b) he had time to avoid and chose to barrel through? If so the court/cps had the option of £2500 for dangerous cycling, £1000 for careless, even 2 years prison for Wanton... 

I think its worth pointing out that if you're knocked over when on two feet, even at a slow speed, you still have a chance of cracking your head on the deck. Years back I slipped up at work and badly bruised the back of my head on the tiled floor. If you take a blow to the temple it can cause all kinds of other problems.


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## Red Light (4 Jul 2012)

sabian92 said:


> That fine is pathetic but his wife needs her head checking.


 
It is but not a fraction as pathetic as the fines for motorists injuring or killing cyclists or pedestrians. Going rate seems to be a couple of hundred quid at most plus three points. By that standard the fine looks exceeding harsh.


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## gambatte (4 Jul 2012)

I read it with complete sympathy for the victim and none for the cyclist.
However, in the back of my mind I was thinking "put the cyclist in a car, the lawyer on a bike.... wonder what the judgement would have been?"


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## Red Light (4 Jul 2012)

Stonepark said:


> He injured a lawyer, just wait for the civil action case now he has been found guilty.


 
But interestingly should he have reduced compensation for not having worn a helmet? This would seem a situation where a helmet would be most likely to have improved the outcome. It has already been established that in those circumstances the victim, if a cyclist, is contributory negligent so why not a pedestrian?


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## Globalti (4 Jul 2012)

It was only a matter of time before this happened. I hope the victim sues the bloke to Hell and back and I hope RLJers will learn from this, they give law abiding cyclists a bad name.


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## PK99 (4 Jul 2012)

Red Light said:


> It is but not a fraction as pathetic as the fines for motorists injuring or killing cyclists or pedestrians. Going rate seems to be a couple of hundred quid at most plus three points. By that standard the fine looks exceeding harsh.


 
*A Plymouth taxi driver who knocked down and killed a 76-year-old man after driving through a red light, has been jailed for four years.*

http://www.bbc.co.uk/news/uk-england-devon-16652480


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## dawesome (4 Jul 2012)

PK99 said:


> *A Plymouth taxi driver who knocked down and killed a 76-year-old man after driving through a red light, has been jailed for four years.*
> 
> http://www.bbc.co.uk/news/uk-england-devon-16652480


 

Recently three cyclists have been killed by drivers who suffered no punishment whatsoever.



> A top City lawyer left brain-damaged after being hit by a cyclist who went through a red light told how he continues to feel the “impact” on his life one year on.​Father-of-two Clive Hyer, a partner at Rosenblatt’s law firm, was knocked unconscious when the bike smashed into him at 26mph as he stepped onto a pedestrian crossing at Holborn Viaduct.
> The solicitor, who has represented the British Nuclear Test Veterans Association in its action against the Ministry of Defence, was thrown onto the road and suffered a fractured skull and brain haemorrhage.
> Cyclist Andrej Schipka, a German IT manager, was found guilty of careless cycling and fined £850 plus £930 costs and a £15 surcharge for the crash on July 5 last year.
> Earlier, in a victim impact statement, Mr Hyer, from Mill Hill, said he now had no memory of the collision but added he was only 40 per cent of the man he was before.​He told City of London magistrates’ court: “A statement of this kind can only scratch the surface of the problems and difficulties created by one cyclist’s carelessness and recklessness. There is barely a moment of any given day that does not result in my feeling the impact of the damage.”​


 
http://www.standard.co.uk/news/crim...ged-by-cyclist-who-ran-red-light-7908069.html


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## downfader (4 Jul 2012)

PK99 said:


> *A Plymouth taxi driver who knocked down and killed a 76-year-old man after driving through a red light, has been jailed for four years.*
> 
> http://www.bbc.co.uk/news/uk-england-devon-16652480


 
The killers of Dan Cox, Marie Vesco werent even technically charged. It went to inquiry but no further. 

The killers of Elidh Cairns, Cath Ward, Group Ctn Barrett, most recently Elizabeth Brown, Christian and Niggy Townend, and Tim Andrew.... all escaped with either a few £hundred fine, suspended sentence, community service, points on licence or a combination of.

A cultural precedent has been set.


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## dawesome (4 Jul 2012)

> The 3rd July was the first anniversary of the death of Berkshire cyclist Anthony Maynard, who was run over from behind in 2008 by a van driver who claimed in his defence that he didn't see Anthony. Another cyclist was seriously injured in the incident.
> Reading Crown Prosecution Service decided not to prosecute the driver, prompting Reading Cycling Club, of which the two cyclists were members, to organise a demonstration outside Reading CPS on the anniversary of the collision.


 
http://lcc.org.uk/articles/cyclists-demonstrate-against-cps-and-driver-apathy


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## Miquel In De Rain (4 Jul 2012)

gambatte said:


> I read it with complete sympathy for the victim and none for the cyclist.
> However, in the back of my mind I was thinking "put the cyclist in a car, the lawyer on a bike.... wonder what the judgement would have been?"


 

The same?

A trivial sentence.


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## lordloveaduck (4 Jul 2012)

Wasn't to long ago there was a thread here where some chap stated that he chose to hit a pedestrian rather than go round.
It will most likely end up a civil case and i truly hope the solicitor wins.
Laws exist for a reason, and if you choose to break them, you have to deal with the consequences.


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## HLaB (4 Jul 2012)

PK99 said:


> *A Plymouth taxi driver who knocked down and killed a 76-year-old man after driving through a red light, has been jailed for four years.*
> 
> http://www.bbc.co.uk/news/uk-england-devon-16652480


Call me a cynic but if the old man had been on a bike the taxi driver probably would have got off with it


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## Miquel In De Rain (4 Jul 2012)

HLaB said:


> Call me a cynic but if the old man had been on a bike the taxi driver probably would have got off with it


 

I don't understand that comment.

Go t it,sorry,had to reread the report.


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## glasgowcyclist (4 Jul 2012)

Red Light said:


> It has already been established that in those circumstances the victim, if a cyclist, is contributory negligent...


 
Has it?


GC


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## Tynan (4 Jul 2012)

cyclist is a daffodil, end of

going through the lights at a ped crossing at 26mph and hitting a ped you've seen early enough to shout something coherent at?

we'd all be frothing if a car had done that to a bike or ped under like circumstance, heaven knows how the court let the ride off so lightly, that's exactly the same logic that lets wilfully negligent drivers off with small fines


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## TheDoctor (4 Jul 2012)

The offence the cyclist was charged with carried a maximum sentence of a £1000 fine.
He's gonna be sued into oblivion for damages though...


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## dellzeqq (4 Jul 2012)

Red Light said:


> But interestingly should he have reduced compensation for not having worn a helmet? This would seem a situation where a helmet would be most likely to have improved the outcome. It has already been established that in those circumstances the victim, if a cyclist, is contributory negligent so why not a pedestrian?


I don't think it has. The only case to go to the court of appeal was the Burridge one, which went in favour of the cyclist


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## MrJamie (4 Jul 2012)

User269 said:


> My sympathy goes out to the victim and his family, no matter who was actually to blame. I think we all need to slow down in town, whether cycling or driving. I know some cyclists think that riding at the same speed as the cars is the right way, but on the rare occasions I'm in town I slow down on the assumption that various pedestrians, motorists, and other cyclists won't see me because I'm smaller than a car, and that if I do have a collision I don't have airbags or crumple zones, and even if I did, I could still kill or injure someone apart from myself.
> 
> Some old data I had on file, guess it's still much the same;
> 
> ...


Those cycling figures are worryingly high really. How many miles are covered by cars in the UK compared to bicycles? 

Its sometimes too easy to get caught up in trying to ride fast and to start taking chances. It doesnt change anything, but i imagine what that guy did barrelling through pedestrians happens a lot. 26mph through a red light is a bit of a piss take too far though :/


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## MrHappyCyclist (4 Jul 2012)

Red Light said:


> But interestingly should he have reduced compensation for not having worn a helmet? This would seem a situation where a helmet would be most likely to have improved the outcome. It has already been established that in those circumstances the victim, if a cyclist, is contributory negligent so why not a pedestrian?


No it hasn't. Martin Porter has done a good analysis of cases in this paper.


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## SquareDaff (4 Jul 2012)

The cyclist was caught on camera RLJ'ing and showing no regard for other road users. Let's just hope this air head doesn't own a car!!


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## hoopdriver (4 Jul 2012)

Red Light said:


> But interestingly should he have reduced compensation for not having worn a helmet? This would seem a situation where a helmet would be most likely to have improved the outcome. It has already been established that in those circumstances the victim, if a cyclist, is contributory negligent so why not a pedestrian?


That is a facile statement.


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## lordloveaduck (4 Jul 2012)

MrHappyCyclist said:


> No it hasn't. Marting Porter has done a good analysis of cases in this paper.


 
Thank you for the link, although it makes me feel more confused than ever, as to wearing a helmet. The high code part of the paper says that i should wear something of high visibility and a helmet. Is it a legal requirement or a choice?


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## Hawk (4 Jul 2012)

lordloveaduck said:


> Thank you for the link, although it makes me feel more confused than ever, as to wearing a helmet. The high code part of the paper says that i should wear something of high visibility and a helmet. Is it a legal requirement or a choice?


 
Both are a choice, the highway code is not law. Sections that use the word "must" are a reference to law, the rest is effectively advice.

What people are discussing here is contributory negligence - for example, if a pedestrian was to stand in the road and eventually got hit by a car - yes the car driver might have been driving without due care and attention and so the pedestrian might pursue compensation from him. However, such a pedestrian might not get all the compensation he would have got if he was just crossing the street at a traffic light, because he was negligent in standing in the road.

There is a fairly substantial legal debate as to whether cyclists who don't wear helmets are not taking good enough care of themselves and could be deemed negligent in a collision where a helmet might have helped them. This has been raised in a few court cases....

http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-contributory-negligence/ may be of interest


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## Miquel In De Rain (4 Jul 2012)

MrJamie said:


> Those cycling figures are worryingly high really. How many miles are covered by cars in the UK compared to bicycles?
> 
> Its sometimes too easy to get caught up in trying to ride fast and to start taking chances. It doesnt change anything, but i imagine what that guy did barrelling through pedestrians happens a lot. 26mph through a red light is a bit of a piss take too far though :/


 
A workmate and I saw a cyclist do that at a set of lights at Bethnal Green and how she got away with it I will never know,luck pure luck.Jump a straight red I mean.


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## Red Light (4 Jul 2012)

dellzeqq said:


> I don't think it has. The only case to go to the court of appeal was the Burridge one, which went in favour of the cyclist


 
The precedent has been set that if it can be shown that a helmet would have made a difference to the outcome, the cyclist would be contributory negligent and have their damages reduced. What has not happened on the road so far is a case where the Court has been persuaded it would have made a difference, mainly because of the speeds involved being above the design limits for helmets. Pedestrians falling over and hitting their heads is about as close to the ideal conditions for where a helmet has been designed to work.


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## lordloveaduck (4 Jul 2012)

Hawk said:


> Both are a choice, the highway code is not law. Sections that use the word "must" are a reference to law, the rest is effectively advice.
> 
> What people are discussing here is contributory negligence - for example, if a pedestrian was to stand in the road and eventually got hit by a car - yes the car driver might have been driving without due care and attention and so the pedestrian might pursue compensation from him. However, such a pedestrian might not get all the compensation he would have got if he was just crossing the street at a traffic light, because he was negligent in standing in the road.
> 
> ...


 

Thank you for the link and the reply. So would it be best to wear a helmet just in case i do get into an accident?


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## downfader (4 Jul 2012)

lordloveaduck said:


> Thank you for the link and the reply. So would it be best to wear a helmet just in case i do get into an accident?


 
Not the best place to ask such a question... if you look at the helmet section of the forums you'll see why. All we can really advice is - its down to your choice.


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## User269 (4 Jul 2012)

BSRU said:


> This incident has nothing really to do with speed people cycle/drive at.
> The guy jumped a red light and cycled into a pedestrian crossing the road, the cyclist even had the nerve to tell the pedestrian to get out of his way. Hopefully the civil courts will take him to the cleaners.


 Jumping a red light and telling pedestrians to get out of the way is all about speed.


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## User269 (4 Jul 2012)

MrJamie said:


> Those cycling figures are worryingly high really. How many miles are covered by cars in the UK compared to bicycles?


As a part time pedestrian, and based on the figures, I'm rather inclined to take my chances with the cyclists rather than the motorists.
Which part of 452 pedestrians killed or injured by cyclists, versus 49740 pedestrians killed or injured by cars is that you don't understand? Oh how silly of me, cars do more miles, so that's alright then.


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## Hawk (4 Jul 2012)

User269 said:


> As a part time pedestrian, and based on the figures, I'm rather inclined to take my chances with the cyclists rather than the motorists.
> Which part of 452 pedestrians killed or injured by cyclists, versus 49740 pedestrians killed or injured by cars is that you don't understand? Oh how silly of me, cars do more miles, so that's alright then.


 
He has a fair point. By your logic, taking cyanide pills is safer than driving because not many people die from taking cyanide pills every year.


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## lordloveaduck (4 Jul 2012)

downfader said:


> Not the best place to ask such a question... if you look at the helmet section of the forums you'll see why. All we can really advice is - its down to your choice.


 
Thank you for your reply.


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## GrasB (4 Jul 2012)

User269 said:


> *Pedestrian casualties 2001-09*
> 
> 
> Killed by cycles: 18
> ...


 
There's 2 critical pieces of information missing - how many cyclist/pedestrian collisions were there & how many car/pedestrian collisions were there. It doesn't matter if cyclists rode 10'000 miles & cars traveled 1'000'000 miles if there were 50'000 collisions between cars & pedestrians & 5'000 collisions between cyclists & pedestrians.


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## downfader (4 Jul 2012)

User269 said:


> As a part time pedestrian, and based on the figures, I'm rather inclined to take my chances with the cyclists rather than the motorists.
> Which part of 452 pedestrians killed or injured by cyclists, versus 49740 pedestrians killed or injured by cars is that you don't understand? Oh how silly of me, cars do more miles, so that's alright then.


 
Its not about the miles traveled when talking of criminal acts. Its about the numbers of acts per sub-population.

Remember.. most of those miles traveled will be on the motorways for motorists. That alone discounts mileage as a factor here.

These are the figures I have for the cycling related collisions: http://www.ctc.org.uk/resources/Campaigns/1110_Cyclists-behaviour-and-law__4M__brf_rev_.pdf


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## BSRU (4 Jul 2012)

User269 said:


> Jumping a red light and telling pedestrians to get out of the way is all about speed.


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


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## MrJamie (4 Jul 2012)

User269 said:


> As a part time pedestrian, and based on the figures, I'm rather inclined to take my chances with the cyclists rather than the motorists.
> Which part of 452 pedestrians killed or injured by cyclists, versus 49740 pedestrians killed or injured by cars is that you don't understand? Oh how silly of me, cars do more miles, so that's alright then.


I was simply suprised that there were as many deaths and injuries by cyclists as there are, given the relative low popularity, speed of cycling and lack of momentum/energy in a bicycle impact. A quick google suggests that only 2% of journeys are made by bicycle and Sustrans suggests the majority of these are very short journeys (ie. less time and presence on the roads) and a large number of those would presumably be rather slow rides (ie. less kinetic energy), so for us to account for as much as 1% of what cars do suprised me.

I quoted your post, because I agreed with the sentiment that we need to slow down in town and around pedestrians. I wasnt trying to imply that cyclists/bicycles are inherently dangerous


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## MrJamie (4 Jul 2012)

downfader said:


> Its not about the miles traveled when talking of criminal acts. Its about the numbers of acts per sub-population.
> 
> Remember.. most of those miles traveled will be on the motorways for motorists. That alone discounts mileage as a factor here.
> 
> These are the figures I have for the cycling related collisions: http://www.ctc.org.uk/resources/Campaigns/1110_Cyclists-behaviour-and-law__4M__brf_rev_.pdf


Yeah I mentioned miles to whiskeywheels erroneously.. What I wanted to imply was a way of quantifying the relationship between the number of incidents and the relevant types of traffic that would reflect the amount of each type of vehicle use, since Id imagine a lot of the bike owning "cyclist" sub-population probably dont cycle very often compared to the amount of driving a motorist does.


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## BSRU (4 Jul 2012)

User13710 said:


> How else do you save precious seconds then?


By ignoring the laws of the road, many slow cyclists jump red lights in order to save a few seconds.


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## Red Light (4 Jul 2012)

MrHappyCyclist said:


> No it hasn't. Marting Porter has done a good analysis of cases in this paper.


 
Did you read his paper. Try paragraph 8:

_"8. Therefore failure to wear a helmet is contributory negligence justifying a reduction in the damages where injury would have been avoided or reduced by a helmet."_​​


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## Red Light (4 Jul 2012)

hoopdriver said:


> That is a facile statement.


 
Explain?


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## Crankarm (4 Jul 2012)

The solicitor was a partner at Rosenblatts which could mean the cyclist could be hit with a civil action for millions - PSLA and lost earnings, family to support. I hope he has 3rd party insurance. What an idiot.

I air zounded a RLJer today. They nearly fell off their bike with fright. Ha!

Last week on Milton Road I saw what looked like a male student ride through a red light at a busy junction, no hands on the handle bars with mobile phone glued to his ear.


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## glasgowcyclist (4 Jul 2012)

Red Light said:


> The precedent has been set that if it can be shown that a helmet would have made a difference to the outcome, the cyclist would be contributory negligent ...



What is this precedent?

GC


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## Red Light (4 Jul 2012)

glasgowcyclist said:


> What is this precedent?
> 
> GC


 
Smith v Finch


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## MrHappyCyclist (5 Jul 2012)

Red Light said:


> Did you read his paper. Try paragraph 8:
> _"8. Therefore failure to wear a helmet is contributory negligence justifying a reduction in the damages where injury would have been avoided or reduced by a helmet."_​​


Did _*you*_ read his paper. Paragraph 8 is in the section headed: "The argument for". It is presenting the argument, not asserting that the argument is valid. The rest of the paper looks at previous cases to try to come to a view on whether "the argument for" is a valid one. Don't pick individual sentences completely out of context and attempt to twist them to suit your own purpose.


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## MrHappyCyclist (5 Jul 2012)

Red Light said:


> Smith v Finch


Smith v. Finch is unlikely to stand as a precedent. As it was not shown that wearing a helmet would have made any difference to the claimant's injuries, no reduction in damages was made. In that case, that part of the judgement would be unlikely to be challenged in any appeal as it would not be worth the cost, so it hasn't really been tested.


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## benb (5 Jul 2012)

BSRU said:


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


 
That's the same thing, isn't it?


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## hoopdriver (5 Jul 2012)

Red Light said:


> Explain?


Your pondering whether a pedestrian should have his/her compensatory damages reduced for not wearing a helmet. Facile.


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## glasgowcyclist (5 Jul 2012)

Red Light said:


> Smith v Finch


 
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


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## BSRU (5 Jul 2012)

benb said:


> That's the same thing, isn't it?


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.


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## hoopdriver (5 Jul 2012)

benb said:


> That's the same thing, isn't it?


It's exactly the same thing.

To try to say that saving seconds is not about speed reminds me of the old joke where the defendent tells the judge he wasn't doing cocaine, he just liked the smell of it.


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## benb (5 Jul 2012)

BSRU said:


> 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.


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## hoopdriver (5 Jul 2012)

Exactly.


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## BSRU (5 Jul 2012)

benb said:


> 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.


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## hoopdriver (5 Jul 2012)

Oh. Okay.


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## Red Light (5 Jul 2012)

glasgowcyclist said:


> 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.
> 
> ...


 
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.


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## MrHappyCyclist (5 Jul 2012)

Red Light said:


> 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.


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## glasgowcyclist (5 Jul 2012)

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


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## Miquel In De Rain (5 Jul 2012)

BSRU said:


> 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.


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## Crankarm (5 Jul 2012)

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.


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## Red Light (6 Jul 2012)

MrHappyCyclist said:


> 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.


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## Red Light (6 Jul 2012)

Crankarm said:


> 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.


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## Red Light (6 Jul 2012)

glasgowcyclist said:


> 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.
> 
> ...



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?


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## Rancid (6 Jul 2012)

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


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## benb (6 Jul 2012)

Rancid said:


> 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.


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## glasgowcyclist (6 Jul 2012)

Red Light said:


> 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


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## Red Light (6 Jul 2012)

benb said:


> That sounds slightly disproportionate.


 
Oh, I don't know. It would at least make sure drivers stop at a red light and may even slow down rather than accelerate on amber.


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## Miquel In De Rain (6 Jul 2012)

BSRU said:


> 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 see that,3mph and then straight through the red.


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## Red Light (6 Jul 2012)

glasgowcyclist said:


> 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


 
He didn't speculate, he reached a judgement. Have you read the case transcript at all?


_*In my judgment* the observations of Lord Denning MR in Froom and others v. Butcher above should apply to the wearing of helmets by cyclists._


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## hoopdriver (6 Jul 2012)

It's still a matter of being concerned with your speed, momentum, continuity.


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## Crankarm (6 Jul 2012)

Red Light said:


> He didn't speculate, he reached a judgement. Have you read the case transcript at all?
> 
> 
> _*In my judgment* the observations of Lord Denning MR in Froom and others v. Butcher above should apply to the wearing of helmets by cyclists._


 
What were Lord Denning's obeservations in Froom and Others v Butcher? What were the facts and the legal issues being debated? Your reference to this case means nothing unless you give the context ie was it a construction case where a worker was injured by a brick falling on his head and a hard hat would have meant he survived or was not seriously injured, so the worker was contributory negligent under Health and Safety at work legislation.

You have still glossed over my point that the judge in Finch seems to have gone off totally into an area which needs Parliament to debate. Do you not think that if Parliament's intention was for cyclists to wear a helmet then it would have legislated for this? It is not for judges to make new law through precedent. If a cyclist does have their damages reduced because of this stupid judges remarks then I would expect the case to be appealed and leave given to do so. You CANNOT get away from the fundamental point that it is NOT currently a legal requirement to wear a cycling helmet where as all the examples you have dragged up such as seat belts must be worn when driving. Period. End of. No dispute. The fact is we have some stupid judge thinking he can re-write the law via case law and undermining Parliament. Cycling helmets are such an important and emotive issue that making wearing of them mandatory needs to be debated by parliament or select committee.

Lets hope this anomoly of (Finch) is soon shown to be bad law and also the judge who has created uncertainty in the law where previously it did not exist is severely criticised by the Court of Appeal or Supreme court if it goes all the way.

BTW RL, are you a practising barrister, solicitor or clerk of the court, usher or even a security guard who has a lot of contact with court precedure?


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## Red Light (6 Jul 2012)

Crankarm said:


> What were Lord Denning's obeservations in Froom and Others v Butcher? What were the facts and the legal issues being debated? Your reference to this case means nothing unless you give the context ie was it a construction case where a worker was injured by a brick falling on his head and a hard hat would have meant he survived or was not seriously injured, so the worker was contributory negligent under Health and Safety at work legislation.


 
Why don't you read them yourself - they are readily available on-line - and then you might be able to have an informed conversation about it rather than guessing and making it up?



> You have still glossed over my point that the judge in Finch seems to have gone off totally into an area which needs Parliament to debate. Do you not think that if Parliament's intention was for cyclists to wear a helmet then it would have legislated for this? It is not for judges to make new law through precedent.


 
But first you'll have to overcome your complete ignorance of how English Law works. http://en.wikipedia.org/wiki/English_law might be a good place to start your education.




> If a cyclist does have their damages reduced because of this stupid judges remarks then I would expect the case to be appealed and leave given to do so. You CANNOT get away from the fundamental point that it is NOT currently a legal requirement to wear a cycling helmet where as all the examples you have dragged up such as seat belts must be worn when driving. Period. End of. No dispute. The fact is we have some stupid judge thinking he can re-write the law via case law and undermining Parliament. Cycling helmets are such an important and emotive issue that making wearing of them mandatory needs to be debated by parliament or select committee.
> 
> Lets hope this anomoly of (Finch) is soon shown to be bad law and also the judge who has created uncertainty in the law where previously it did not exist is severely criticised by the Court of Appeal or Supreme court if it goes all the way.


 
More of the same ignorance and making things up as a pretence for knowledge. Why don't you read the Smith v Finch transcript including the parts about helmets and the lack of a legal requirement to wear them in it? And while you are at it why don't you try to find the Act Parliament has passed on that far more important and emotive issue of murder. Or perhaps you think that all the judges who sentence people for murder are stupid people who are undermining Parliament who would surely have debated and passed a law of murder if they meant people to go to prison for it.


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## Crankarm (6 Jul 2012)

Red Light said:


> Why don't you read them yourself - they are readily available on-line - and then you might be able to have an informed conversation about it rather than guessing and making it up?
> 
> 
> 
> ...


 
Ehh? You are off your trolley tonight Redlight.

What has murder got to do with this case???? I don't follow.

Oh Wikipedia the omnipresent authoritative legal source for wanabee lawyers. Is this what you use? LoL! You crack me up. You haven't yet answered my question about what legal training/experience you have?


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## Jonno Boy (7 Jul 2012)

PK99 said:


> And the claim will not be small:
> http://www.rosenblatt-law.co.uk/people/details-clive-hyer-10680


 
And, apparently personal injury damages are normally outside the scope of bankruptcy as well.


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## dawesome (7 Jul 2012)

This horrible story made me check my TP public liability cover, I don't think long-term care for a high earner with two kids would be covered by £2m.


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## Jonno Boy (7 Jul 2012)

Try explaining that one to the dole, talking hypothetically here, (I have TP cover but this isn't the point) that I would like a job but I'm trying to starve someone out into a low settlement. After all, if X doesn't have the money then he can't pay, can he?
I'm not sure I'd be too keen on a job in such circs.

PS edit: In my case, I might just plead poverty and keep quiet about the TP. If I were in that hypothetical case, that fine would max out my credit card and put me in overdraft.


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## dawesome (7 Jul 2012)

I'm not sure keeping quiet about assets or TP cover would be sensible.


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## Red Light (7 Jul 2012)

Crankarm said:


> Ehh? You are off your trolley tonight Redlight.
> 
> What has murder got to do with this case???? I don't follow.
> 
> Oh Wikipedia the omnipresent authoritative legal source for wanabee lawyers. Is this what you use? LoL! You crack me up. You haven't yet answered my question about what legal training/experience you have?


 
I'm not off my trolley but you are way out of your depth in a subject you try to profess to have knowledge of but don't.

You claim for example:


> The fact is we have some stupid judge thinking he can re-write the law via case law and undermining Parliament.


 

English law (and the law in most other countries) is mainly case law set by judges in Court, not statutory law set by Parliament. What happened in Smith v Finch and Froom v Butcher before it is at the heart of the way English law works, not some aberration as you seem to see it. Setting precedents in Court is the way it works.

Murder is one of the best examples of that. You will not find an Act of Parliament on the offence of murder. The offence comes from case law. But you would seem to think the offence of murder was just "some stupid judge thinking he can re-write the law via case law and undermining Parliament" because surely if it was that important Parliament would have debated it and passed a law of murder.

And since you insist I have run, in a corporate context, a number of cases in both English and US courts up to and including the level of the Appeal Court which have set significant legal precedents. I have spent more hours than I would like to admit sat in chambers with the QCs and legal teams I engaged going over this stuff to know a bit about what I am talking about. Now since you insisted that I disclose my credentials, would you care to reciprocate and tell us what legal training/experience you have? Thought not! We know it doesn't even go as far as Wikipedia but that might be a good place for you to start.


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## hoopdriver (7 Jul 2012)

Red Light said:


> I'm not off my trolley but you are way out of your depth in a subject you try to profess to have knowledge of but don't.
> 
> You claim for example:
> 
> ...


You weren't cloistered away with all thise QCs and legal eagles as a defendent, I hope... :-)


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## Red Light (7 Jul 2012)

hoopdriver said:


> You weren't cloistered away with all thise QCs and legal eagles as a defendent, I hope... :-)


 
Not personally, no


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## hoopdriver (7 Jul 2012)

I get all my law from reading Perry Mason.


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## hoopdriver (7 Jul 2012)

Oh yeah, She's good too.


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## Red Light (7 Jul 2012)

Judge Dredd for me  Put down your weapons and prepare to be judged.


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## hoopdriver (7 Jul 2012)

And let's not forget Judge Roy Bean, the law west of the Pecos...


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## Red Light (7 Jul 2012)

Or Judge Constance Harm


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## Crankarm (7 Jul 2012)

Red Light said:


> I'm not off my trolley but you are way out of your depth in a subject you try to profess to have knowledge of but don't.
> 
> You claim for example:
> 
> ...


 
You seem to be attributing rather a lot of things to me I have not stated.

You still haven't said what your legal role is? Are you are an intern on work experience? Yet again your reply is all over the place introducing totally irrelevant areas. Stick to the specific issue in question RLJ. This thread is about the wearing of helmets by cyclists not about murder or other common law offences. Yes you are quite right a large part of criminal law has been developed by case law ie case by case basis in higher courts. But where issues have particular public interest, public policy or are suitably contentious then the courts have deferred to HoL or Parliament to decide on the matter. The fact that the offence of murder is still a common law offence is because there is no need for Parliament to debate it as there is no debate to be had about killing people with deliberate intention. Period. Parliament decided that drivers of vehicles should wear seat belts and motor cyclists helmets not judges.The courts enforce the law, Parliament makes it.

Me - the usual legal qualifications you know law degree, lpc things you need and a few years experience. How about you apart from "organising" cases for appeal in UK and US jurisdiction and relying on Wilkipedia as your legal source and taking inspiration from Judge Dredd? You really can't be taken seriously if you give Wikipedia as your source of cases. LMAO. What legal qualifications do you have if any .................?


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## hoopdriver (8 Jul 2012)

Wasn't there an Irish judge named Lynch, long ago, who enriched the Englsh language?


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## Red Light (8 Jul 2012)

Crankarm said:


> You seem to be attributing rather a lot of things to me I have not stated.
> 
> You still haven't said what your legal role is? Are you are an intern on work experience? Yet again your reply is all over the place introducing totally irrelevant areas. Stick to the specific issue in question RLJ. This thread is about the wearing of helmets by cyclists not about murder or other common law offences. Yes you are quite right a large part of criminal law has been developed by case law ie case by case basis in higher courts. But where issues have particular public interest, public policy or are suitably contentious then the courts have deferred to HoL or Parliament to decide on the matter. The fact that the offence of murder is still a common law offence is because there is no need for Parliament to debate it as there is no debate to be had about killing people with deliberate intention. Period. Parliament decided that drivers of vehicles should wear seat belts and motor cyclists helmets not judges.The courts enforce the law, Parliament makes it.
> 
> Me - the usual legal qualifications you know law degree, lpc things you need and a few years experience. How about you apart from "organising" cases for appeal in UK and US jurisdiction and relying on Wilkipedia as your legal source and taking inspiration from Judge Dredd? You really can't be taken seriously if you give Wikipedia as your source of cases. LMAO. What legal qualifications do you have if any .................?


 
Very odd. Someone claiming a law degree and a few years experience who a) didn't know the basics of the Common Law system and how English Law is made b) didn't know how to look up the transcript of Froom v Butcher c) didn't know the classic example of non-Parliamentary English Common Law of murder d) doesn't know that English law is made by both Parliament through statutory law and the judiciary through common law and that the role of the Courts is to interpret and apply the law and to make the law through the system of precedents and common law.

You also appear to be unaware that contributory negligence is a standard common law defence not just for helmets and seat belts and has long been thus since the precedent set by Butterfield v Forrester in 1809 ("One person being in fault will not dispense with another's using ordinary care for himself").

You also seem to have comprehension problems. Interns or work experiencers do not run major cases in the High and Appeal Courts - at least not in my world they don't. YMMV.

And if you think I am bullshitting just read what you have written above (and if you can be bothered in previous posts) and then read the Open University section on the role of the Courts and Judiciary


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## Red Light (8 Jul 2012)

hoopdriver said:


> Wasn't there an Irish judge named Lynch, long ago, who enriched the Englsh language?


 
American:

*‘The origin of the expression has not been determined. It is often asserted to have arisen from the proceedings of Charles Lynch, a justice of the peace in Virginia, who in 1782 was indemnified by an act of the Virginia Assembly for having illegally fined and imprisoned certain Tories in 1780. But Mr. Albert Matthews informs us that no evidence has been adduced to show that Charles Lynch was ever concerned in acts such as those which from 1817 onward were designated as “Lynch's law”. It is possible that the perpetrators of these acts may have claimed that in the infliction of punishments not sanctioned by the laws of the country they were following the example of Lynch, which had been justified by the act of indemnity; or there may have been some other man of this name who was a ring-leader in such proceedings. Some have conjectured that the term is derived from the name of Lynche's Creek, in South Carolina, which is known to have been in 1768 a meeting-place of the “Users”, a band of men whose professed object was to supply the want of regular administration of criminal justice in the Carolinas, and who committed many acts of violence on those suspected of “Toryism”.’ (N.E.D.)*


*The particulars supplied by Ellicott, together with other evidence, clearly establish the fact that the originator of Lynch law was Captain William Lynch (1742–1820) of Pittsylvania in Virginia. According to Ellicott, ‘this self-created judicial tribunal was first organized in the state of Virginia about the year 1776’; an article in the Southern Lit. Messenger (1836) 2 389 gives the date definitely as 1780.*


www.oed.com


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## benb (9 Jul 2012)

Red Light said:


> ... *a band of men whose professed object was to supply the want of regular administration of criminal justice in the Carolinas, and who committed many acts of violence on those suspected of “Toryism”.’ ...*


 
I like their style!


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