If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.

- George Washington

Friday, 14 October 2011

Contributory Negligence?

I seem to be banging on a lot about high-visibility issues here lately. Sorry if that's a bit dull, but with the nights drawing in it seems to be relevant. I was searching the web on a completely unrelated matter when I came across this article on a site called Cyclists' Defence Fund. (The article is unsigned and undated, although the latest date to be referred to is 2004, which suggests that it is fairly recent.) It seems to be UK-based, and focuses on legal matters relating to cycling. The article in question deals with the question of contributory negligence in awards made for death and injury to cyclists where the cyclist was not wearing a cycle helmet. It's a fairly dry bit of work, but the gist is this: in assessing damages for death or injury against drivers who are at fault in an accident with a cyclist, insurance companies will automatically reduce the offer by between 20% and 25% if the cyclist was not wearing a helmet, claiming that by not wearing a helmet the cyclist had contributed to his/her own injuries. This seems to happen whether the wearing of a helmet was relevant to the injuries sustained or not. Worth ploughing through.

A couple of quotes to give the flavour:
It is therefore very important to note that these solicitors, acting on behalf of the claimant, in common with many others, routinely proposed a discount for a failure to wear a cycle helmet, in this case a figure of 20 per cent.


Research suggests that, routinely, there has been a tendency to reduce damages by a quarter when a cyclist was not wearing a helmet. It is suggested that this cannot be right or just, as so much depends on the circumstances. However, in analysing the settlement process, and cases in coroner’s courts, it would appear that cycle helmet wear is also becoming a kind of preliminary legal litmus test in cycle compensation cases.
Of course, insurance companies are businesses above all, and will try anything they can get away with to avoid paying out - or paying out as much. But I am sensing an unhappy comparison with the campaign for bikers to wear compulsory high-visibility clothing. How soon before a biker mown down by a car will have his damages reduced because he wasn't wearing a specific and approved piece of clothing - despite the fact that this had nothing to do with the accident?
It would appear that many personal injury lawyers, insurers and coroners are focussing on the peripheral question of helmet wear, rather than examining the cause of the vast majority of accidents involving cyclists – the negligent driving of a motor vehicle.
It looks like we have common cause with cyclists - people focusing on the often irrelevant issue, rather than the real one, the inability of car, van and lorry drivers to look properly and drive appropriately.
This context of ‘90 per cent driver error’ is therefore the backdrop for the vast majority of injuries on the roads. In any collision with a motor vehicle, it is quite clear that pedestrians and cyclists are susceptible to serious injury.
You can add motorcycists to that list.

The truly worrying thing is that these decisions are being made in an office somewhere, with no regard to the circumstances of the case. It's one thing if the lack of a helmet contributed to the injury: but it seems that this is considered irelevant by some insurers:
The claimant’s expert witness, Dr Nigel Mills, formerly chaired the British Standards Institution committee for motorcycle helmets in January 1994, and has been a member of the umbrella committee which oversees all helmet committees. His conclusions are very noteworthy: helmets are less effective when a cyclist hits a vehicle than when they simply hit the road; helmets do not eliminate injury; serious brain injury is quite common when cyclists are hit a glancing blow by a vehicle, as distinct from a direct collision; the site of the impact on the right side of the face would not have been protected by a helmet; and the claimant’s head injury was due to the right side of his face hitting the road, so a helmet would not have reduced his injuries.
I can see this kind of thing developing with regard to hi-viz and motorbikes. It won't matter if conspicuity was a relevant factor in an accident: if the rider wasn't wearing [add item of choice here] then the award will be reduced because he contributed to his own injuries - apparently.

And, of course, if the EU gets its way - and it probably will - then there will be the added force of the law. The rider was not only foolish, but acting illegally, not to dress like a banana so that Mr Volvo could stay half-asleep on his way to work.

How long before someone argues that the fact that an injury victim was riding a motorcycle in the first place is sufficient grounds for denying a claim? After all, he could have caught the bus!

The cyclists have scored a few victories, though.
This was followed in 2002 by the case of a Walsall cyclist, Alan Millett, who suffered serious head injuries when he was hit by a car on a roundabout. The insurers, NIG (the National Insurance and Guarantee Corporation), proposed a reduction for contributory negligence of 15 per cent for the sole reason that Mr Millett was not wearing a cycle helmet, but later backed down in the face of a massive campaign of letter and emails from CTC members.
The difference, of course, is that cyclists are seen as healthy, right-thinking and middle-class. I wonder if a campaign of letters and emails by bikers would be listened to so readily?


  1. I'm pretty sure I've seen stuff on the web related to studies showing that wearing a helmet makes cars LESS careful around cyclists. It's late, but I'll see if I can dig it out tomorrow...

  2. You're right. I can't remember the guy's name, but one of the UK universities did a study which found that drivers passed closer to cyclists wearing a helmet, and other similar ideas. I think I had the link in a post last year. I'll have a root around.

    There's also the health aspect, which is - er - exercising some cycling enthusiasts. Mandatory helmet wearing reduces cycle usage by a significant amount, so any health benefits from getting people on bikes quickly vanish. A couple of fatalities, or a few hundred premature deaths from heart disease? Tough call.

  3. Got it. My original post here, and the 2006 Bath University press release here.

    Thanks for the reminder, Julia.

  4. Richard - Very interesting post.
    I wonder if there is another angle to this as we are dealing with insurance companies who, as you say are busiensses.
    Car drivers have to buy insurance where cyclists do not. There are some things you can do such as fit a decent alarm, to bring down your premium.
    If the insurance company finds your alarm was not working when your car got nicked, you are unlikely to get a payout.
    I made a claim against a driver who ran into me years ago. An assesor came out and checked my tyres. If I'd had a bald one I would have been told the car shouldn't have been on the road and not been paid out.
    Insurers assess risk and thier ultimate aim is to pay out as little as possible. Maybe cycle insurance would address the problem, although I am very much against compulsary insurance in it's current form and would not wish it on anyone who doesn't have to pay for it now.

    Two questions, is any of this relevant and how do you spell assess?

    (Sorry, had a few scoops)

  5. You of course have hit on it in para 12 or so of your traetise: Well of course the ultimate contributory factor routine has long been practiced by the Arab justice system against hapless yet innocent foreigners viz if you had not been in our country then you would not have been party to the crime/accident/whatever.

  6. Bucko - thank you. I'm ambivalent on the insurance thing. On the one hand, it would make sense for either all road users or none to have compulsory insurance, and if cyclists had to shell out as car/bike owners do, it might make it easier to deal with the inevitable comings-together. But on the other, I like cycling as one of the few remaining unregulated pastimes - you buy one, you jump on it, and you go. No test, no tax, no insurance. It is, quite literally, free (apart from the cost of the bike, of course). The only laws are pretty much around lighting, and that is something you'd hardly ignore anyway. I say leave 'em alone, but at the same time hold them to the same standards that other road users have to obey.

    Answers: yes, and 'just like that'.

    Nikos: I am reminded of a Private Eye Christmas record many years ago (remember those original 7" floppy discs?). They were 'interviewing' Idi Amin about an opposition politician who had been found dead, and the official verdict was suicide.

    "But he was found with sixteen knife wounds and riddled with dum-dum bullets!"

    "Well, he bin sayin' things about me like I was not a great leader and so on. What dat if it ain't suicide?"


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