19 May 2009

A Poor Judgement

I'm always reticent to criticise the outcome of court cases, on the basis that the people in the courtroom probably had a lot more information available than I have looking in from the outside, but I’m going to make an exception for one recent case, because I believe it sets a precedent which is both wrong and dangerous. On 24th September 2008, James Jorgensen was killed when his bicycle was hit by a car driven by an unlicenced driver [1]. The driver was convicted of causing death by careless driving, but, when determining the sentence, the judge allowed the driver to put forward in mitigation the fact that Mr Jorgensen was not wearing a helmet.

The judge appears to have made no effort to determine whether or not wearing a helmet would have made any difference to the injuries sustained in this particular case. Deciding that the victim was somehow at fault because he wasn't wearing a particular item of clothing (which he wasn't legally obliged to), without determining what difference that piece of clothing would have made is profoundly unjust. It gives me the impression that the judge was implying that the victim was somehow "asking for it."

Going beyond the specifics of this case, the effectiveness of cycle helmets in general is still unproven, so I don't see why there should be any general presumption in favour of wearing them. In fact, as I've hinted previously [2], risk compensation effects could result in cyclists being at greater risk as a result of wearing a helmet. To be fair to the judge, this presumption is prompted by the Highway Code which says [3]:

Clothing. You should wear

• a cycle helmet which conforms to current regulations, is the correct size and securely fastened


I'm very uncomfortable with these pseudo-rules contained within the Highway Code. As they are not legal requirements, they will rarely face the same level of scrutiny as laws when they are drafted, but their status as part of the Highway Code allows them to be used to argue contributory negligence when they are not followed. In fact, the Road Traffic Act says [4]:

A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind but any such failure may in any proceedings be relied upon by any party to the proceedings as tending to establish or negative any liability which is in question in those proceedings.

The idea that failing to follow advice in the Highway Code automatically makes you partially liable creates a number of bizarre situations. Take this section of the Highway Code directed at drivers:

Before setting off. You should ensure that

• you have planned your route and allowed sufficient time


So, if you were driving along without a thoroughly planned route and a car pulled out of a side road into the side of your car, the driver could argue that his liability should be reduced because you didn’t have a pre-planned route.

Or, consider this section of the Highway Code directed at pedestrians:

Pavements (including any path along the side of a road) should be used if provided. Where possible, avoid being next to the kerb with your back to the traffic

So, if you were walking along the pavement on the left hand side of the road close to the kerb and a car mounted the pavement and ploughed into you, the driver could argue that his liability should be reduced because you should have been walking on the pavement on the other side of the road facing the traffic.

I don’t think these are desirable situations and as a first step, I think two changes need to be made to create a more sensible system:

1. Change the law so that failing to follow an instruction in the Highway Code makes you partly liable for an incident only when following the instruction would have prevented the incident or made the incident less severe.

2. For the elements of the Highway Code which aren’t restatements of laws (i.e. those elements which don’t begin you must or you must not), create two separate classes, instructions (you should) and advice (you might like to consider), with the latter being completely optional and the default for any action where the benefits are unclear.

1. http://www.sunderlandecho.com/news/Driver-who-killed-pedal-cyclist.5251053.jp
2. http://plockett.blogspot.com/2009/02/mother-of-all-nanny-statists-and-seat.html
3. http://www.direct.gov.uk/en/TravelAndTransport/Highwaycode/DG_069837
4. http://www.opsi.gov.uk/acts/acts1988/plain/ukpga_19880052_en

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