Cyclist victim's lack of helmet affects guilty driver's sentence

32 comments
By Richard Peace | Tuesday, May 19, 2009 1.03pm

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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User Comments

There are 32 comments on this post

Showing 1 - 30 of 32 comments

  • Oh dear, a sad state of affairs.

  • What is the difference in this case to that of a driver of a large car killing the driver of a small car in a crash where the large car is at fault. Surely the dirver of the large car should receive a reduced sentence as the smaller car driver should have went and bought a larger car. Maybe a tank or something similar.

    If this is followed through the how long is it before clothing, foot wear and padded protection or lack of it is seen and mitigating eveidence.

  • That's like giving drivers carte blanche to hit cyclists that aren't wearing helmets and then saying as much in court. The legal system in this country always sides with car drivers.

  • I think this is a disgusting outcome, I've been knocked and fell off, both time knocking my head on the road/car lightly. Helmets do work but only for 'light' impacts. If on the flip side of this I pull out in front of a car causing an accident and the driver was killed because he wasn't wearing a seat belt would the courts give me a reduced sentence ?

  • More car drivers sustain head injuries in crashes than cyclists.

    So:

    - Should car drivers be compelled to wear helmets??

    - If a driver doesn't wear a helmet, should he/she be judged to have contributed to their own death if they die from head injuries in a crash?

    This judgement is a nonsense.

  • Agree bdu98252 - and let's face it, being on a bike on a public road, jeez, that's just asking for it.

  • What a joke.

  • It's a disgusting decision. This would have to apply to any accident - blaming the casualty for not protecting themselves better.

    Do pedestrians now have to wear helmets and body armour?

    Stab victims could wear stab proof vests! In fact it's stupid of them not to.

  • Isn't this a bit like saying you are partially responsible for being shot dead and not wearing a bullet proof vest?

  • I would expect this shit in America, but never in the UK. Why don't we just get all the drivers drunk and play a good ole game of "Hit the unprotected cyclist." Sounds like a fun time, no? Geez, even the courts can't see past the auto hype. I sure hope he rides a bike to the court house, because it won't matter if he is wearing a helmet or not when I run over his A#$.

  • The judge needs to learn a bit more.

    Presumably if you mount the pavement and mow down a pedestrian - should they have been wearing a helmet ? Or what about a skateboarder ? What if it was a cyclist walking his bike home on the road - does the helmet make a difference or not ??

  • Are you guys serious? I mean really. For goodness sakes. Wear a helmet, and that helps prevent head injuries almost always. Any size car hitting a bicycle wins, regardless of size. Now, if I forget to wear my seat belt and a bike or truck for that matter hits me and kills me, are they not as responsible for my death?

  • WEAKY6 - of course wearing helmet is always better than no helmet, and i always wear mine, however...the fact that it's not a legal requirement yet and has been used in court to say the cyclist is partly at fault is completely contradictory. If it was the law then the ruling would be acceptable, but that's the problem, in a crash where the cyclist dies a helmet probably won't make any difference.

  • I think thatthere i no need to argue about wearing or not a helmet, because there is no legal obligation to wear one.

    So, I wonder if family or CTC may appeal to special court (in France, there is Cour de Cassation) to have this judgent break, because judge clearly took into account elements that are not receivable (absence of helmet).

    Driver might have reduce responsablity and sentence if rider have done something illegal or against road code, but it was absolutly not the case.

    I think that CTC (or any cycling association) must act rapidly and strongly, because that judgment is very important and may lead to a lot of the same disgusting kind.

  • Quote: "Moore, who held a provisional licence"

    Q: Would anyone else agree that this is worse than James Jorgensen not wearing a helmet?

    Mitigating Circumstances? The driver wasn't properly qualified to be on the road! Was anyone in the car with the driver? If so, why did they not do something?

  • The jusdges in this country are as mad as a hat stand! WTF has wearing a helmet got to do with the fact that the idiot in the car killed an innocent cyclist it is to do with the standard of driving not whether someone was wearing protective clothing especially as there are no laws making helmet wearing mandatory in this country, the Judge needs a wake up call.

  • So what comes next? If I run a stop sign in my car, t-bone your car and you die of a head injury, will I be able to argue for a lesser sentence because you were not wearing a helmet? Of course not. THAT would be absurd.

  • This is utter lunacy. Does this mean now that this safety test will apply to all accidents? Does someone who kills a driver in a car without an airbag whilst driving dangerously get a reduced sentence because the driver should have bought a car with one fitted?

  • From what I have read today, the driver of the car was texting his girlfriend moments before he hit the cyclist from behind. If this is the case then clearly the motorist is totally at fault. Whether or not the cyclist was wearing a helmet is immaterial. The driver was clearly breaking the law by using his mobile phone while driving and this lead to the driver not concentrating on the road and taking an innocent life.

    I hope he makes some nice "friends" in prison who'll show him a good time in the absence of his girlfriend. See how he likes it from behind!!

    They should have thrown the book at this pr*ck as an example, but as usual the law is a joke in this country.

  • Shouldn't the judge have also decided that the cyclist should have stayed at home that day, because that would have been much safer for him than riding his bicycle. If he had stayed at home, he wouldn't have got into that accident, and so it is really entirely the cyclist's fault because he decided to leave the house that day. Therefore, the driver should be found not guilty. I don't know why they don't write that into the Highway Code - that staying at home is always the safest thing to do.

    This guy got a 24 weeks SUSPENDED jail sentence for "causing death by careless driving" - what a joke! Surely there should be some sort of minimum penalty that comes with this charge, which should be far more severe than this.

  • I suppose it is logical that if the cyclist had been wearing a helmet, he may not have died; therefore, the charge of causing death by careless driving would not apply

    but

    there is reasonable doubt that the helmet offered reasonable protection to prevent death in this case so..... Was the judge right? i dunno!

    and

    if the driver had been using a mobile phone i think it should be a manslaughter charge.

  • People who use their phones whilst driving should have their hands removed. They won't be doing it again!

  • Gives one faith in the legal system doesnt it??

    We are perhaps expecting our judges -and politicians- to be more in touch with common sense than they clearly actually are.

    Im old enough to remember an exact parallel to this when that judge stated that rape victims had themselves to blame if they wore short skirts. I cant find words to describe the level of contempt I hold these people in....

  • I thought the underlying legal principle was that you must take the consequences of your actions as they were, and not argue that you would have preferred a different victim.

    So in civil matters, if you run over a single mother of six, you cannot argue that compensation should be based on running over an elderly lady with no dependent children.

    In criminal matters I thought judges usually regarded the victim being relatively defenceless as an aggravating factor.

    Can anyone with legal expertise cast light on this?

  • Not seen the judgment and not a criminal lawyer but seems surprising see http://en.wikipedia.org/wiki/Eggshell_skull

  • "In criminal matters I thought judges usually regarded the victim being relatively defenceless as an aggravating factor."

    Many years ago, a colleague of mine was killed while cycling and not wearing a helmet. The judge in that case did indeed take the view you describe above, and treated it as an aggravating factor, not a mitigating factor. He said that the car driver should have recognised that the cyclist would be more vulnerable due to not wearing a helmet and therefore taken extra care when near him.

  • In the Jorgenson case he was accompanied by his partner who's mobility car he was driving but who held no licence (paper report - http://www.sunderlandecho.com/news/Driver-who-killed-pedal-cyclist.5251053.jp ). The driver had been driving for 8 years without a full licence and the judge said he had been driving responsibly!

    These cases seem to be an instance of judges trying to impose a law requiring the use of helmets.

    E - mail your MP and tell them that the sentencing gidelines must be changed so that riding legally without a helmet cannot be used as mitigation in sentencing in cases like this. All MPs will have web sites, take a few minutes, add some links and let them know ow you feel

  • Ridiculous, I find myself astounded. How often over the last couple of years these supposedly clever people keep showing themselves for the clowns they are.

    Quite frightening really, isn't it.

  • Yes, the basic principle as far as i am aware of, as a law student, as take the victim as you find them, whether that means them being a jehovah's witness when you stab them, or someone who was extremely healthy and who recovered within days.

  • In a way treating it as an aggravating factor is almost worse, since the law then seems to imply that cyclists in helmets can be treated like skittles.

    Is it possible that in treating the victims vulnerability as a mitigating factor the judge has got confused with civil law, and the concept of contributory negligence?

    WJH

    "Many years ago, a colleague of mine was killed while cycling and not wearing a helmet. The judge in that case did indeed take the view you describe above, and treated it as an aggravating factor, not a mitigating factor. He said that the car driver should have recognised that the cyclist would be more vulnerable due to not wearing a helmet and therefore taken extra care when near him."

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