Sunday, 15 March 2009

Cyclists without helmets partly to blame for injuries?

The case of Smith v Finch (2009) in the Queen's Bench Division of the High Court appears to indicate that the idea of contributory negligence - which sees compensation reduced for those partly at fault for their own injuries - is extended to helmetless cyclists, although the defendant must show that not wearing a helmet contributed to the injury sustained. You can read the judgment here.

This is even though there is no legal compulsion to wear a helmet. The judge took the view that this did not matter.

This is an example of a judge reasoning by analogy to create an original precedent. In this case, the judge referred to Lord Denning's decision in Froom v Butcher (1976) which established the idea that occupants of a car are partially reposnsible for their own injuries if such injuries are caused by not wearing a seatbelt.

In Smith, the claimant could not prove that if the cyclist was wearing a helmet injury would have been prevented - so in fact no deduction will be made from the substantial damages likely to be awarded to the defendant in respect of his serious injuries. As a result, the judge's comments about contributory negligence and cycle helmets are arguably obiter dicta, meaning that they are persuasive in effect rather than binding.

Many cylists are really upset at the implications of this decision - they feel that this ruling potentially blames victims. What do you think?

PS: this article comments that the judge in Smith seems to have departed from the obiter comments of the judge in A (a child) v Shorrock (2001) where the judge attached no fault for the failure to wear a helmet.

Time for parliament to step in and clear things up? Or will we have to wait for a case to get to the Court of Appeal?

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