Contributory Negligence???

[Slim]

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.

 

[bauldbairn]

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.

 

[addictfreak]

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

 

[kettle]

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

 

[addictfreak]

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'."

 

[Origamist]

Article by Martin Porter QC:

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

 

[wafflycat]

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).

 

[Norm]

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.

 

[Dan B]

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.

 

[dellzeqq]

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.

 

[dellzeqq]

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.

 

[Dan B]

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 ...

 

[Dan B]

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 ...

 

[wafflycat]

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.

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.

 

[wafflycat]

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.

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.