Skip to content

The cycle helmets debate – legal aspects

4 July 2011
by blondwig

helmetsHelmets are probably the most controversial part of cycling law.

They’re not compulsory for cyclists in the UK, although attempts have been made quite recently to bring in legislation requiring them (and a Bill to make helmets compulsory in Northern Ireland is still before the legislative assembly there).

But that’s not fully the end of the matter. The Highway Code recommends that cyclists should wear helmets, and the courts have found cyclists who haven’t worn helmets to be at fault in certain respects.

This post doesn’t argue either way, for or against compulsory helmets. I’m not convinced there’s that much difference between riding on the road on a bike (no helmet necessary) and a 50cc scooter (for which, as far as I understand, a motorbike-grade helmet is compulsory). But, on the other hand, compulsion would probably damage cycling rates in the UK (which are already very low), and I’m not sure that cycle helmets as they’re currently designed are all that much use.  

I thought I’d describe the legal background to the debate, to help people make up their own minds about helmets.   

Compulsion

There’s no legal requirement to wear a helmet when you’re cycling in the UK.

In Northern Ireland, there is a Bill which would make it an offence to cycle without wearing a helmet which is still before the legislative assembly. The progress of the Bill was held up earlier this year, when the “committee stage” was not properly completed. It seems likely that there will need to be a new committee report before the Bill can be progressed further. At the moment it’s not clear exactly what is going on, nor when the Bill will be voted on again.

Proposals to make helmets compulsory across the UK are also occasionally discussed in Parliament. Most recently, in 2004, there was an attempt to introduce a requirement for children to wear helmets while cycling. That proposal failed through a lack of interest or support.

In fact it’s arguable that primary legislation (the sort made by Parliament) wouldn’t be necessary to introduce compulsory cycle helmets in the UK. Section 81(1) of the Road Traffic Act 1988 already empowers the Secretary of State to “make regulations as to the use on roads of cycles, their construction and equipment and the conditions under which they may be so used”. It seems arguable that rules requiring helmets would be regulations as to the use on roads of cycles or as to the conditions under which bicycles may be used, so could be made under section 81(1). To do this the Secretary of State wouldn’t need the support of Parliament (although any regulations could be annulled by Parliament). (RTA s. 81(1); 195(3))

But there are also arguments the other way – that helmet compulsion would be a safety provision, rather than a construction and use provision, and therefore the relevant rules would have to be made under Part 1 of the 1988 Act (which would require primary legislation through Parliament). This is how the compulsory helmets rule for motorbikes was created – as a safety provision under Part 1 of the 1988 Act. (RTA s. 16; Motor Cycles (Protective Helmets) Regulations 1998 (SI 1998/1807))

The point is arguable either way. But any move by the Secretary of State under section 81 would be open to challenge in the courts (and would be very controversial), and this probably makes it unlikely.

So are there any legal consequences if you don’t wear a helmet?

Rule 59 of the Highway Code recommends that “you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened”. It’s not a compulsory provision, but the courts can take it into account in determining your liability. (Highway Code rule 59; RTA s. 38(7))

So, for example, rule 59 of the Highway Code would be relevant in determining whether it’s negligent to ride a bike without wearing a helmet. Of course it’s difficult to see how failing to wear a helmet could hurt anyone else. So it’s difficult to see how it could lead to liability for negligence (being sued and made to pay damages).

But the courts have considered this issue in the context of contributory negligencewhere the person who wasn’t wearing a helmet is injured in an accident, and sues the person who caused the accident.

Contributory negligence

For example, a car driver knocks over a cyclist who isn’t wearing a helmet, causing the cyclist to suffer head injuries. The cyclist sues the driver for damages. One of the defences which the driver can raise (as a way of trying to avoid paying full damages) is contributory negligence – arguing that the injury was caused or contributed to by the cyclist’s negligence in failing to wear a helmet, so the driver shouldn’t have to pay for the injury in full.

In this context, for contributory negligence to be proved, two things are necessary:

  • The cyclist has to have been at fault in some respect; and
  • The cyclist’s fault has to have caused or contributed to their injury.

This is an issue which the courts have dealt with a number of times. On the two most recent occasions, they have held that the cyclist who rode on the road without wearing a helmet was at fault – so the first part of the test for contributory negligence was satisfied. (Smith v Finch [2009] EWHC 53 at §§43-45; Phethean-Hubble v Coles [2011] EWHC 363, §136)

A few things need to be said about this. First, the cases deal with cycling on the road. The position might be different for young children, or for cycling in a park – it’s not clear, but it may be that in those situations, riding without a helmet wouldn’t amount to being at fault. (A (A Child) v Shorrock [2001] CLY 4466; Swinton v Annabel’s (Berkeley Square) Ltd [2005] CLY 2842)

Secondly, these cases don’t necessarily mean that the courts will always take this view – it’s probably not entrenched as a rule of law yet. So, for example, The Cycling Lawyer has written this paper (for a legal audience) arguing that it shouldn’t count as contributory negligence to ride without a helmet. But it’s worth noting that the paper was presented before the decision in the Phethean-Hubble case, which took the opposite view. 

Most importantly, though, the courts have so far declined to hold that any individual cyclist’s failure to wear a helmet has caused or contributed to their head injury.

In the Phethean-Hubble case, Wilcox J said that “the literature establishes that cycle helmets are generally beneficial in head injury cases. It is clear that a properly designed helmet worn by a cyclist at speeds of up to 12mph who falls 1.5 metres and hits his head on the pavement is afforded a high level of protection.” But, in the case before him, the helmet could have had only “the most minimal effect”, because of the nature of the impact and the head injuries which the cyclist suffered. (Phethean-Hubble at 137, 139)

Similarly, in Smith v Finch, Griffith Williams J found that the cyclist’s speed of impact with the ground was likely to have been greater than 12mph, and the nature of the impact was such that a helmet would not necessarily have helped. (Smith v Finch at 53-56)

So there was no evidence that the injuries which were being considered by the courts would have been prevented by wearing a cycle helmet. As a result the second part of the test for contributory negligence (set out above) has never been satisfied. This means that, so far, no cyclist has had their damages for a head injury reduced for contributory negligence because they weren’t wearing a helmet.

Conclusions

At the moment, if you cycle in the UK without wearing a helmet you’re not committing any kind of offence. That may change in Northern Ireland, depending on what happens with the current Bill.

Similarly, so far no cyclist who has suffered a head injury in a traffic accident has had their damages reduced for contributory negligence for not wearing a helmet. In the light of the current scientific evidence, it seems likely that a helmet will only be found to have made a difference in a case where the speed at which the cyclist hits their head is relatively low.

Of course this reflects the point often made by anti-helmet campaigners: given the way cycle helmets are made and tested, they’re more likely to be useful if you fall off your bike, and less likely to be useful in a collision with other traffic.

All of this makes it especially clear how important it is to avoid being hit. The court cases on cycle helmets are sad stories of everyday journeys ending in lives being destroyed. Whether or not you choose to wear a helmet, stay safe!

Update: the High Court has now reduced the damages awarded in a head injury case on the grounds of contributory negligence, based partly on the cyclist’s failure to wear a helmet. The case is Reynolds v Strutt and Parker [2011] EWHC 2263 (Ch). You can read more about the new case here.

———-

Photo by joshgray from here: http://www.flickr.com/photos/josh_gray/1098051448/in/photostream/

New: follow UK Cycle Rules on facebook! http://on.fb.me/jqwyja

 

37 Comments leave one →
  1. Mike Chalkley - Chair Bournemouth Cycling Forum permalink
    4 July 2011 14:49

    “I’m not convinced there’s that much difference between riding on the road on a bike (no helmet necessary) and a 50cc scooter” – presumably you’re a ‘sports’ cyclist? To me there’s a huge difference.

    I don’t doubt that many current cyclists are able to troll about at 30mph+ and in that situation you’re probably right. The difference comes when you look at cycling in terms of the current ‘ordinary’ non-cyclist who is scared to tackle the road conditions in the UK.
    If your mum (or gran) were to start using a bike to pop to the shops, she would most likely never exceed 10-12mph. If she were to take the same journey on moped, she would likely reach 30mph wherever congestion allowed.

    My wife and I cycle as often as we can, our last trip of 26 miles had an average speed of 9mph. I think we touched 20 on a downhill.
    People who ride bikes now will, on average, cycle faster than the general population would if we could get a real shift in modal share. This is one aspect of helmet compulsion that’s often overlooked.
    On the ride I just mentioned, we travelled down the lovely Castleman Trailway, an onld stretch of railway bed that used to run between Wimborne and Upton near Poole. It’s flat, bikes & walkers only but the number of people I saw with helmets on was astounding.
    Helmet promotion puts the fear of god into people. It’s bad for cycling.

    On a final note, take RoSPAs guidance for teachers they recommend for a class of 6-7 yr olds…”Draw faces on two eggs and give them names (the pupils could make suggestions).
    Tell the children that they are going to ride their bikes, but one doesn’t like wearing a
    helmet. Ask them what would happen if he fell off his bike. Hold the egg one metre
    above the floor and drop it, watching it smash.” (http://www.rospa.com/roadsafety/info/lessonplans.pdf)

    No wonder people don’t want to ride!

    • 4 July 2011 15:59

      thanks mike – some good points, interesting stuff

    • Paul Jakma permalink
      4 July 2011 22:37

      Great post. The other factor in wearing helmets is risk homeostasis: drivers and cyclists will take greater risks, e.g. a study showed drivers pass closer on average to helmeted cyclists. There’s a recent study of australian helmet law which, though claiming to show a decrease in the period around the introduction of the law, seems to show a longer-term increase in head injury rates – despite a stable-ish accident rate.

      The other factor is the macro-social effect of discouraging cycling. Whatever gains there may be to an individual once they are actually involved in an accident, may be extremely small compared to the detrimental effect on public health over time of sedentary life-styles.

      Obesity is on balance the FAR greater risk to public health.

      When I see cyclists in hi-viz & helmets, I see rolling “Cycling is dangerous!” advertisements.

  2. 4 July 2011 15:53

    <>

    I presume they’re referring to the usual helmet test, which is putting a 5kg magnesium headform into a helmet and letting it drop 2 metres or so onto anvils of varying shape and seeing whether the liner compresses without breaking. If this is what they’re referring to, they’ve made a clear mistake.

    The head is afforded protection if falling 1.5 metres from a _stationary_ bicycle, or when the head is travelling at 12mph. Travelling at 12mph AND falling 1.5 metres results in kinetic energy that exceeds the standard test and therefore what the helmet is certified to absorb.

    As for Northern Ireland, the CTC specifically asked the committee to which they gave evidence whether the bill would have to go through all stages again, and they were told it would have to. So it’s completely back to the beginning again, but with it now being clear that Sinn Féin and the DUP are not interested in this bill, and they both have more seats in the Local Assembly than earlier in the year. So it’s highly unlikely to be passed any time soon.

    • 4 July 2011 16:02

      hi dermot – i must admit i’ve found it difficult to find anything online describing exactly how cycle helmets are tested. are you relying on particular sources, or have you got personal knowledge?

      i also tried to calculate how fast a head would be travelling after falling 1.5 metres, to see if that was the explanation for the 12mph thing, but didn’t get very far!

      • mike permalink
        25 July 2011 13:04

        12mph is 5.6 metres/second

        A body in freefall has a velocity that is the square root of 2gd, where g is gravity and d is the distance

        d = 1.5 metres
        g = 9.8 metres/second

        2*1.5*9.8 = 29.4

        sq root 29.4 = 5.4m/s

        So yes, an object falling due to gravity alone hits the ground at just under 12mph

      • blondwig permalink*
        25 July 2011 13:24

        thanks mike

        another thought – if i’m cycling along a flat road at 20mph and fall off, will my rate of fall necessarily be any faster than it would be if i fell from stationary?

        if my head hit a car or a wall, then i can see that the impact speed could well be the greater part of the 20mph i was travelling at. But if it just hits the ground, presumably the impact speed might still be 12mph – dictated by the rate at which i was falling, rather than the speed at which i was travelling?

      • 28 July 2011 11:26

        “another thought – if i’m cycling along a flat road at 20mph and fall off, will my rate of fall necessarily be any faster than it would be if i fell from stationary? ”

        I think you have to use vector calculations (velocity is a vector; it has magnitude and direction). The parallelogram law of addition is the relevant one, I believe.

        You have two vectors at right angles: a horizontal velocity of 32km/h (20mph) and a vertical velocity of 19.3km/h (12mph)

        So if you use Pythagoras’s theorem, you are hitting the ground at a speed of 37.4km/h (23.2mph). So it’s almost twice the velocity of the helmet’s test conditions — and you’re hitting the ground at an angle, which may lead to other problems, I don’t know.

        Someone else feel free to correct this, but I think it’s broadly correct.

      • blondwig permalink*
        28 July 2011 14:45

        thanks dermot

      • blondwig permalink*
        6 September 2011 10:02

        i’m currently reading TRL’s report on cycle helmets for the DfT – available here (requiring registration). The report is a review of other evidence, and says the following:

        “Mills and Gilchrist (2006) showed that the peak translational acceleration for head impacts with a cycle helmet is primarily due to the vertical component of head-to-road impact velocity, and is nearly independent of the horizontal component. In fact, for some of their computer modelling simulations at higher impact velocities than those included in test standards, the head translational acceleration was lower in tests with a horizontal velocity than in purely vertical drop tests. This was attributed to rotation of uncrushed foam into the contact region.”

        (TRL, p. 12)

        The full reference for the paper they are citing is Mills N and Gilchrist A (2006) Bicycle Helmet Design. Proceedings of the IMechE Part L: J. Materials: Design and Applications 220. 167-180

        TRL’s report also says that “a drop test of 1.5m is more severe than a typical cyclist head impact with the ground from a head height of 1.5m, because other body regions will often contact the ground before the head, which will tend to reduce the severity of the head impact.” (TRL, p. 13)

        It’s a pain that you have to register to download it, but the report is worth a read.

      • 8 September 2011 16:56

        Hi!

        I hadn’t realised that there were any more comments here until your new article in the Guardian.

        Does this mean that an athlete sprinting at 40km/h would experience much the same peak translational acceleration as me falling off a bar stool wearing a bicycle helmet?

        That seems a fanciful claim. I’ll have to look into it.

        On the issue of the interpolation of other parts of the body in the event of a fall, that’s very true; that’s why there are so few head injuries for casual cyclists, helmet or no helmet. People put out their hands and arms to protect the head by reflex. Broken collar bones are much more common than fractured skulls. Skinned hands and knees are far more common again.

        On the other hand, you might also say that the test is inadequate because in many falls where the user fails to interpolate hands or arms much of the weight of the body is ploughing into the helmet, which is much more than 5kg.

      • 9 September 2011 09:55

        Hi Jorren,

        I think one question is whether in the real world you meet impediments in a fall that arrest your horizontal motion. So if you bounce along the ground without meeting kerbs or walls, or without encountering friction on impact that grabs the helmet, then I suppose it’s possible that the horizontal component would not affect the translational acceleration very much. It seems rather optimistic to think that this is always the case, but since you are meeting the ground at an angle of about thirty degrees in your hypothetical example (20mph horizontal, 12mph vertical; inverse tan of 12/20), one might think that you might avoid most friction. (In fact, I’ll mention below some research that suggests that oblique angles are by no means innocuous, and bicycle helmets aren’t that good at sliding.)

        Perhaps more importantly, there’s good evidence that _translational_ acceleration is not all that matters. Most of the very debilitating or fatal impacts involve rotational acceleration, which causes the layers of brain tissue to move independently, thus shearing. Rotational acceleration is very likely to be influenced by the horizontal component of impact velocity (much like backspin in ball games).

        The TRL report seems to be rather dismissive of rotational acceleration, but it doesn’t mention, for example, Corner’s research from 1987, which showed very high levels of rotational acceleration for bicycle helmets.
        http://www.cyclehelmets.org/1182.html

        “Tests using crash dummies produced even more horrific results. Dummies in bicycle helmets had average rotational accelerations of 58,000 rad/s² (six times the threshold for potentially fatal brain damage) in tests simulating going over the handlebars at 45 km/hr. Motorbike helmets performed much better, producing only half the rotational accelerations measured for dummies wearing bicycle helmets.

        Corner et al. (1987) cited research showing that that even motorcycle helmets would not slide on a smooth surface in tests with forward velocity and a drop height of 1.4 m, presumably because of the high normal force acting during the impact. A test for sliding impact friction was therefore recommended for both motorbike and bicycle helmets but, unfortunately, never adopted for bicycle helmets. In contrast, the standard for motorbike helmets (Reg 22.05) now includes a test for tangential force in oblique impacts (which has a similar function to a sliding test).”

        This is a critique of TRL 446 itself, with particular reference to rotational acceleration but it is rather detailed:
        http://www.cycle-helmets.com/head-helmet.doc

  3. 4 July 2011 15:54

    Sorry, tried using angular quotes there. I meant to quote off this:

    In the Phethean-Hubble case, Wilcox J said that “the literature establishes that cycle helmets are generally beneficial in head injury cases. It is clear that a properly designed helmet worn by a cyclist at speeds of up to 12mph who falls 1.5 metres and hits his head on the pavement is afforded a high level of protection.”

  4. Mike Chalkley - Chair Bournemouth Cycling Forum permalink
    4 July 2011 19:23

    Try http://www.cyclehelmets.org/papers/c2023.pdf – the whole site’s good but this is info from an expert in helmet testing.

    • 4 July 2011 20:31

      Yes, I had that in mind, and this too:
      http://cyclehelmets.org/1081.html

      This is also by Brian Walker.

      Note the claim that helmet manufacturers aim to pass the weakest standard (and then I imagine only just, in order to keep profits higher). In fact, Walker’s tests in 1998 found
      some helmets didn’t even past the weakest test (EN1078 standard), which surprised me.

      Off the top of my head, I think this is the correct way to work out the velocity of a body dropped from a height.

      Energy = mgh (potential energy) = (1/2)mv^2 (kinetic energy)
      m is mass, g acceleration due to gravity, h the height from which the helmet is dropped, and v the final velocity at impact

      Simplifying: gh = (1/2)v^2

      So 9.807m/s/s x (2 metres) = 1/2 x v^2

      v = 6.263 m/s

      So a velocity of 22.55km/h, or about 14mph.

      If you drop from 1.5m, it’s 19.53km/h or about 12mph

      So the 12mph claim applies to a 1.5m fall from a bicycle that isn’t actually moving.

  5. 5 July 2011 19:17

    Jorren,

    Helmets are made compulsory in the Bicycle Safety Act 2012 for all cyclists on the road.

    Some thoughts. A 9 year old child is stopped by a police officer for not wearing a helmet. What course of action could the police take? Other than asking him/her, or his parents, in future to wear a helmet, not much.

    A 10 year old child is stopped for not wearing a helmet. If a fine is issued, what are you going to do if the cyclist doesn’t pay it?

    Interestingly, children are at most risk of a possible head injury but are the group who would be most difficult to enforce the law against.

    • 6 July 2011 09:21

      hi tom

      i think the approach that the draft bill in 2004 took was to penalise the parents for causing or permitting the child to ride without a helmet (or something similar) – then enforce the fine in the usual way (ultimately, with court proceedings if not paid). not without its difficulties, obviously.

  6. 5 July 2011 22:35

    Although a self-selecting sample I think this video of Dr. McNally (Scientific Director, Institute of Biomechanics, University of Nottingham) is pertinent here:

    http://www.guardian.co.uk/science/punctuated-equilibrium/2011/may/10/1

    • 6 July 2011 09:30

      thanks henz – powerful stuff, and good to see some pro-helmet material too!

      • 6 July 2011 14:00

        I’m afraid I can’t watch that video right now (restricted bandwidth), but I assume from the comments beneath that the victim’s helmet broke and is assumed to have saved his life. Anecdotes are a powerful friend to helmet advocacy, but have no scientific validity in themselves. There are far more “helmet saved my life stories” than there ever were cyclists with serious brain injuries.

        http://cyclehelmets.org/1209.html

        Looking at very large numbers of helmet-wearers (which has far more scientific validity) should show up a life- or injury-saving effect. So far the effect is very hard to discern, which suggests at the very least that the protection is modest. And that is what me might expect when they are certified for 1.5m falls (and worn incorrectly by most people).

        A recent review of case-control studies by Elvik suggests that once neck injuries are taken into account, the net safety effect of helmet-wearing has been zero — that is, helmets seem to prevent certain head injuries, but translate them into neck injuries.

        On another note, we probably should avoid the implication that somewhat sceptical contributions are “anti-helmet”. The term appears in both the original post and in the comments. Some sceptics are probably “anti-helmet”, for various reasons, but a great many just are perturbed by the grand claims made for a very limited form of protection, that is in any case, as I said, worn incorrectly by most people.

        Helmets almost certainly prevent scalp lacerations and perhaps simple skull fractures, for which reason they are probably of some value, but making them compulsory seems excessive, given that outside competitive cycling such injuries are rare, and in any case rarely life-altering.

      • 6 July 2011 14:13

        Actually, I may be misleading you on Elvik’s paper. The relevant quote is:
        “no overall effect of bicycle helmets could be found when injuries to head, face or neck are considered as a whole.”

        Which I assume means that some head injuries are prevented, but some neck injuries are caused that otherwise would not have happened. It doesn’t necessarily mean that head injuries are prevented in some cases but are translated directly into neck injuries in those same cases.

  7. 6 July 2011 14:14

    Sorry to hog the thread. I should give the name of the paper:
    Publication bias and time-trend bias in meta-analysis of bicycle helmet efficacy:
    A re-analysis of Attewell, Glase and McFadden, 2001

    Anyway, that’s enough from me.

  8. blondwig permalink*
    15 July 2011 11:04

    On 14 July, a new private members’ Bill was put forward in the House of Commons by Annette Brooke , Lib Dem MP for Mid Dorset, again proposing mandatory cycle helmets for children.

    The page for the Bill is here , and the proceedings in parliament here . Interestingly, the return date for the Bill is 4 November, the same day that the Dangerous and Reckless Cycling Bill will have its second reading.

  9. burtthebike permalink
    15 July 2011 13:53

    “This is an issue which the courts have dealt with a number of times. On the two most recent occasions, they have held that the cyclist who rode on the road without wearing a helmet was at fault.” Either you can’t write clearly or you are deliberately trying to obfuscate the issue. The cyclist who rode out into the road was at fault, but it had nothing whatsoever to do with him not wearing a helmet.

    “So, for example, The Cycling Lawyer has written this paper (for a legal audience) arguing that it shouldn’t count as contributory negligence to ride without a helmet. But it’s worth noting that the paper was presented before the decision in the Phethean-Hubble case, which took the opposite view.” No it didn’t “The head injuries in this case were severe and there was more than one impact causing severe injury as well as the rotational as injuries and oedemas. I am not satisfied that the wearing of a helmet by the Claimant in this case would have had other than the most minimal effect.” It took exactly the same view as the Cycling Lawyer, that a helmet would not have prevented the serious injuries and is not contributory negligence.

    Given that all the reliable evidence shows that cycle helmets at best make no difference to the death and injury rate of cyclists, and at worst increase the risk, the chances of a court finding contributory negligence for not wearing a helmet would appear to be zero.

    And in Australia, Sue Abbott has now shown that the helmet law can’t be enforced there.

    “All of this makes it especially clear how important it is to avoid being hit.” In the vast majority of cases, it is the driver’s fault in collisions between cyclists and drivers. Most cyclists are already well aware of how important it is to avoid colliding with a car, but that isn’t the problem. The problem is that many drivers don’t consider it very important to avoid colliding with a cyclist.

    I’m not sure what the point of your article is, but it appears confused and contradictory.

    • blondwig permalink*
      15 July 2011 15:03

      Hi Burt

      Some strong views. Allow me to clarify.

      The key point is that the test for contributory negligence involves two questions: (1) was the cyclist at fault, and (2) did their fault contribute to their injury.

      In the two cases referred to above, the courts held (both times) that question 1 was satisfied – they specifically held that not wearing a helmet does constitute fault for the purposes of the contributory negligence test. See the Phethean case above (paras. 135 and 136).

      The Cycling Lawyer’s paper criticises the Smith v Finch decision on question 1 – the fault point. Subsequently, Phethean went against him in that, as I’ve said, the judge found that question 1 was satisfied – the cyclist was at fault.

      When it came to question 2, the courts in both cases held that the fault did not make a difference – in other words, wearing a helmet would not have mitigated the injury. So, overall, the driver’s argument based on contributory negligence failed, because question 2 was answered in the negative.

      I agree that, given the state of the scientific evidence on helmets, at the moment it seems unlikely that the courts will find a helmet to have made a difference when a cyclist suffers a head injury at a high impact speed.

      But were there to be a case of a low-impact-speed head injury, then it does seem at least possible that question 2 would be answered in the affirmative – and that damages would be reduced by the court for contributory negligence. For example, if a stationary cyclist was brushed by a car passing too close, and fell off as a result but without any transfer of velocity, so that they hit their head around the impact speed at which helmets are considered to make a difference.

      • burtthebike permalink
        15 July 2011 16:25

        Then both you and the judge in the second case appear misinformed:

        paras 135 and 136:

        “Griffiths J in Smith -v- Finch (2009) EWHC at paragraphs 43-45 refers to the Highway Code and at paragraph 44 goes on to say:-

        “44. In my judgement the observation of Lord Denning MR in Froom and Others –v- Butcher above should apply to the wearing of helmets by cyclists. It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be “a sensible thing to do” and so, subject to issues of causation any injury sustained may be the cyclists own fault and “he has only himself to thank for the consequences”.

        I am satisfied on the balance of probabilities, that the cyclist who does not wear a helmet runs the risk of contributing to his/her injuries”.

        I accept that this approach is the appropriate starting point. No engineering evidence was available to the court as to the types and effectiveness of cycle helmets. They vary considerably in strength, design and effectiveness. There is a school of thought that thinks that the wearing of them gives a rider a false confidence that can lead him or her into dangerous situations. The wearing of a helmet in some circumstances may increase or cause injury.”

        The comments from Smith vs Finch were obiter dictum, and have absolutely no force in law. If the Phethean judge had found contributory negligence using that reference, I would expect an appeal to succeed because he hadn’t understood this point. Therefore your assertion that your own point one, that the courts found that not wearing a helmet constitutes fault for contributory negligence is not proven, and is mere speculation on your part.

        There has been no case where the court has found any contributory negligence because a cyclist wasn’t wearing a helmet, and your article appears to be a scare story to make cyclists wear helmets.

      • blondwig permalink*
        15 July 2011 17:24

        The ruling on question 1 in Smith v Finch is obiter (not binding), yes. I haven’t suggested otherwise. But that doesn’t mean it has no force in law - it has persuasive force. I’m just suggesting that it seems, from the Phethean case, to be gaining acceptance. I don’t think the judge in Phethean considered himself bound by Smith v Finch - if he did, he would have said so.

        I accept that no court has yet found contributory negligence for not wearing a helmet – and I’ve said this above. I’ve tried to explain in what circumstances the courts might find that not wearing a helmet constitutes contributory negligence.

        As ever, I’m not trying to persuade anyone to behave in any particular way – I’m simply seeking to explain the legal context, to help people make informed decisions.

  10. Colin Clarke permalink
    15 July 2011 17:00

    I made a number of comments regarding the Northern Ireland proposed Bill that may be of interest, see

    http://www.niassembly.gov.uk/environment/2007mandate/reports/2010/Report_59_10_11R.htm

    Where a reasonable doubt exists about any product providing a net benefit then the consumer should have the right not to use it. It is simply, but importantly, respecting human rights by allowing the individual to decide.

    • burtthebike permalink
      17 July 2011 21:37

      Thanks for posting that link Colin, and it’s interesting and depressing to see the misinformation and emotional manipulation so prominent, just like all the other pro-helmet law campaigns.

      Significantly biased too: Sustrans were asked whether all of their supporters were against helmets, and a great deal was made of the fact that they couldn’t say that 100% of people supported that view, but the pro-law organisations weren’t asked the same question. Certainly, there are a significant number of BMA members who do not support that organisation’s stance.

  11. Ron permalink
    29 July 2011 14:35

    I wear a helmet on most occasion but firmly believe that it is a matter of personal choice. DfT road statistics show that cycling casualties are twice as likely to be caused by motorists than by cyclists. Prescriptive helmets oblige a cyclist to armour plate themselves for risks mostly not of their making. This is an abdication of responsibility on behalf of the authorities. A law that makes the cyclist responsible for their injuries for the absence a helmet follows the same line of reasoning of assigning blame to rape victims because of the clothes they choose to wear.

    It’s not like you can say that cycling is so inherently risky that helmets are the only practical solution. The Netherlands destroys that argument. Only about 8% of their population don’t cycle at all. Of the balance, a vanishingly small percentage wear helmets. The Dutch safely cycle unencumbered by any polystyrene lid a because a safe cycling environment has been created. In New Zealand and Australia by contrast helmets are legally prescribed and analysis of before/after data has not demonstrated any measurable safety benefit. Rather ironic that a law in New Zealand and Australia’s would criminalise 92% of the Dutch just for going about their daily business. What a bunch of antisocial yobs those Dutch are!

    It goes to show, it’s not hard for a government to make criminals of their subjects. Just make stupid laws.

  12. blondwig permalink*
    6 September 2011 15:46

    post updated on 6/9/11 to add basic details of the High Court’s decision in Reynolds v Strutt and Parker. More on this soon.

  13. Colin Clarke permalink
    21 February 2012 23:13

    Evaluation of New Zealand’s bicycle helmet law
    See http://www.cycle-helmets.com/nz-clarke-2012.pdf

    Abstract
    The New Zealand helmet law (all ages) came into effect on 1 January 1994. It followed Australian helmet laws, introduced in 1990–1992. Pre-law (in 1990) cyclist deaths were nearly a quarter of pedestrians in number, but in 2006–09, the equivalent figure was near to 50% when adjusted for changes to hours cycled and walked. From 1988–91 to 2003–07, cyclists’ overall injury rate per hour increased by 20%. Dr Hillman, from the UK’s Policy Studies Institute, calculated that life years gained by cycling outweighed life years lost in accidents by 20 times. For the period 1989–1990 to 2006–2009, New Zealand survey data showed that average hours cycled per person reduced by 51%. This evaluation finds the helmet law has failed in aspects of promoting cycling, safety, health, accident compensation, environmental issues and civil liberties.

  14. Clair permalink
    2 August 2012 15:31

    I work with young people who have had brain injuries, if a helmet could save one child and their family going through the horrific experience of sustaining a head injury that will change their world forever I think making helmets compulsary doesn’t even need to be thought about. Lets face it the main reason people don’t wear helmets is they’re not cool, don’t go with their outfits or just can’t be bothered. I have never spoken to someone not wearing a helmet who has given me safety as an arguement. If people want to cycle but don’t want to wear a helmet go to the gym. Seatbelts in cars are compulsary so why not helmets for bikes.

    Sustaining a brain injury is not like breaking your leg, you can’t just plaster it up and wait a while and it’s back to normal, all areas of the brain can be damaged you may have to learn to speak, walk, eat, go to the toilet, order tasks… all at the same time because the window for rehab is small and no matter how hard you work or how good the care you recieve you will never be the same again… and the simple act of wearing a helmet could save you from all that – they should be compulsary end of.

Trackbacks

  1. Cycle helmets and contributory negligence - an update | UK Cycle Rules - information on cycling law in England and Wales
  2. Why wearing a helmet could affect your legal status | Jorren Knibbe | Environment | guardian.co.uk
  3. Potholes and the law | UK Cycle Rules - information on cycling law in England and Wales

Leave a Reply

Your email address will not be published. Required fields are marked *

*

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>