Cyclist victim's lack of helmet affects guilty driver's sentence
By Richard Peace | Tuesday, May 19, 2009 11.03am
Cyclist victim's lack of helmet affects guilty driver's sentence AFP/Getty Images
A driver found guilty of causing the death of a cyclist was given a reduced sentence because the rider wasn't wearing a helmet.
James Jorgensen, 55, was knocked down by driver Denis Moore on a roundabout in Seaham, County Durham in September 2008 and later died of severe head injuries.
When the case came to court, the judge said that Moore, who held a provisional licence, could put forward in mitigation the fact that Mr. Jorgensen was not wearing a cycle helmet.
Under the relatively new charge of causing death by careless driving (as opposed to causing death by dangerous driving or driving without due care and attention), Moore was given a suspended jail sentence of 24 weeks.
The CTC, the UK's national cyclists' organisation, condemned the light sentence. Their campaigns and policy manager Roger Geffen said: "There are still serious doubts about the effectiveness of cycle helmets, particularly in preventing serious or fatal injuries, and there is no law requiring cyclists to wear them. This sentence is an extraordinary example of a judge blaming the victim for his own death."
A judge earlier this year offered the opinion that a cyclist's decision not to wear a helmet could in principle be regarded as "contributory negligence" if it could be shown that the injuries suffered could have been reduced or prevented if the cyclist had worn a helmet. But in that particular case, the judge ruled that a helmet would not have made a difference.
The UK government's advice on helmet wearing is not clear cut. On the one hand, the country's Highway Code recommends that cyclists wear helmets; on the other, it is not a legal requirement to do so. In addition, the government is reassessing the evidence on cycle helmets as part of a wider study on cyclists' safety, suggesting that at the moment there is no obvious research-based answer as to whether you should wear a cycle helmet or not.
Lawyer Richard Brooks, a partner in Withy King solicitors, reinforced how the current situation is a recipe for confusion. He told BikeRadar: "The government seems content to say that it is advisable to wear helmets but without compelling their use. I do not think that it is inconsistent to say at the same time that it may be appropriate in certain circumstances to take failure to wear a helmet into account. The question of course is whether it is appropriate.
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"In this particular case the Highway Code had no bearing on whether the driver was guilty or not. The judge only referred to it when deciding on what punishment the driver should receive.
"It is a fact of life that when a judge comes to sentence a person who is guilty of a criminal offence they concentrate not on the victims but on the criminal. It may be in this case that the driver's representative was able to present a cogent medical case that Mr Jorgensen might not have died had he worn a helmet. But from what I know about the case, the judge has made a big leap of faith given the absence of supporting evidence.
"I suppose that it is legitimate for the judge to draw guidance from the Highway Code which does, of course, recommend the use of helmets. However, the spotlight must then fall on the government to provide a sensible analysis of the data and the moral arguments and ensure that the Highway Code provides the best advice possible."
The interim findings of the helmet part of the study are expected in June, with a final report due out by the end of 2009.
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