Cycle helmets debate continues

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Cycle helmets debate continues

3rd October 2012

Should cyclists be required by law to wear helmets or should it be a matter of personal choice? How much protection do helmets actually offer cyclists and should a failure to wear a helmet mean that any damages awarded in the event of an accident could be subject to deductions on the grounds of contributory negligence?

These are all issues of concern that affect solicitors, claimants and cyclists alike and it surprises many that the seemingly straightforward question of whether or not cyclists should be legally required to wear helmets remains such a contentious issue.

Matthew Claxson, a road safety specialist at Fentons Solicitors LLP, said the peculiar science of cycling safety is much more complex than many people realise. “The issue of helmet use within the cycling community is a fiercely controversial subject, particularly in regard to mandatory helmet laws. Opinions as to whether helmets should or should not be worn are frequently dominated by both emotion and exaggeration, which can make it very difficult knowing what to believe.

“The wearing of protective headgear for cyclists has never been required by law in the UK although a new EU report has proposed the mandatory use of helmets for children up to the age of 13,” added Matthew, a partner at the firm. “Parliament has so far refused to follow in the footsteps of nations such as Australia, Canada and the United States by making cycle helmets compulsory. In the meantime however, the civil courts in personal injury claims involving helmetless cyclists are having to consider whether any damages awarded may have to be reduced for the cyclist’s perceived ‘contribution’ to their injuries.”

Cycle helmets and contributory negligence

If an unhelmeted cyclist, who suffers head injuries after colliding with a vehicle, sues the driver for compensation, one of the defences the driver can raise as a way of avoiding paying full damages is contributory negligence. In a claim where a finding of contributory negligence can be made for a cyclist’s failure to wear a helmet, the motorist must firstly prove that the cyclist was ‘at fault,’ and secondly, that this fault or failure caused or contributed to the cyclist’s injuries. This is an issue which the courts are having to deal with more and more often.

In the landmark 2008 Reynolds v Strutt & Parker case, a claimant sued his employer after falling from his bike and suffering brain damage whilst competing in a cycle race organised as part of a company team-building day. Although the claimant was unhelmeted when he fell, despite the availability of helmets on the day of the incident, his employers were found liable because they had ‘failed to conduct an adequate risk assessment’ before the race. The claimant’s damages however, were reduced by two-thirds because of his perceived contributory negligence in firstly failing to wear a helmet and secondly because he was seen to have been riding in a dangerous manner.

“The Reynolds case was the first time the courts had reduced a cyclist’s compensation in this way and meant that any decision not to wear a helmet could have legal consequences for cyclists suing for compensation after suffering head injuries,” said Matthew. “The Cyclist’s Defence Fund suggest that it is now common for insurers to seek contributory negligence deductions in out of court settlements for cycling-related head injury claims and for the cases that have reached the courts in recent years, failing to wear a helmet has been deemed negligent, largely because it involves ignoring Rule 59 of the Highway Code which currently recommends that ‘you should wear a cycle helmet which conforms to current regulations, is the correct size and securely fastened’.”

Just such a conclusion was reached by Mr Justice Griffith Williams in the 2009 Smith v Finch case in which a cyclist suffered a serious brain injury after he was run down by a motorcyclist. After the defendant was found to have been entirely at fault for the collision, his insurers decided to pursue a reduction and alleged that a finding of contributory negligence should be made on the basis that the cyclist should have been wearing a helmet.

After relying on both the Highway Code recommendations as well as Lord Denning’s observations in the 1976 Froom v Butcher case - where a failure to comply with Highway Code seatbelt recommendations before the wearing of seatbelts was made mandatory, was found to be sufficient to found a finding of contributory negligence - the defendant’s insurers were unable to prove that a helmet would have made any difference to the cyclist’s injuries and he was awarded full compensation as a result. However, although, there was no reduction in the cyclist’s damages, Judge Griffith Williams ruled: ‘In my judgement the observations of Lord Denning MR in Froom v Butcher 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 injuries sustained may be the cyclist’s own fault and ‘he has only himself to thank for the consequences.’

“For defendants, being able to show that a claimant wasn’t wearing a helmet in the event of an accident is not enough in itself,” said Matthew. “The burden of proving causative contributory negligence rests on the defendant to show that wearing a helmet would have prevented the injury or made it less severe. Defendants wishing to argue contributory negligence need to ensure they have evidence addressing helmet design as well as the speed and direction of the impact and the injuries sustained.

“Following the Smith v Finch ruling, many cyclists were seriously concerned that a High Court judge had effectively said unhelmeted cyclists who suffered head injuries may not be entitled to full compensation if it could be proved that a helmet would have reduced or prevented their injuries,” added Matthew. “Although the defendant in the Smith v Finch case was unsuccessful in arguing contributory negligence, many believe the judgement could in principle influence future cases. However, in practice it is widely acknowledged that any future cases serious enough to come to court will in all likelihood involve ‘impact forces’ greater than cycle helmets are designed to withstand.”

How effective are helmets at protecting cyclists?

In contrast with the efficiency of seatbelts and motorcycle helmets, the evidence surrounding cycle helmets is hugely controversial. Cycle helmets have been around since 1975 and were originally conceived as a ‘spin-off’ product from the development of expanded polystyrene foams in motorcycle helmets. Acting like a shock absorber, the expanded polystyrene liner is intended to dissipate the energy of an impact by compressing - in theory, protecting the rate at which the skull and brain are accelerated by a collision. However, once the liner is fully compressed, the helmet can offer no further protection and any residual energy is then passed directly onto the skull and brain. In high impact cases involving vehicles, the protection afforded by helmets is likely to be minimal as the energy potentials are commonly at rates known to overwhelm even Formula 1 racing helmets. Put simply, cycle helmets are not designed to protect wearers from an impact with a moving vehicle and many remain convinced that they only offer protection in low speed falls involving no other parties.

“Most neurosurgeons will accept that a helmet may help protect a cyclist from skull fractures, lacerations and extradural/subdural haematomas, however comparatively few would argue that helmets can protect against traumatic brain injuries resulting from the head impacting against stationary or moving objects,” said Matthew. “Indeed, some neurologists argue that helmets may in fact increase the risk of rotational type injuries to the brain due to the fact that the diameter of the head is effectively increased by the size of the helmet.”

In 2009, the Department for Transport commissioned a report reviewing the evidence on cycle helmets and concluded that helmets ‘would be expected to be effective’ at reducing the risk of head injury in accidents not involving any other vehicles. However, there was no reliable evidence that helmets have resulted in a lower risk of head injury in cases involving vehicle collisions, as helmets themselves don’t require testing at impact speeds above 12mph.

Before the Reynolds v Strutt & Parker case, court rulings regarding injured cyclists had involved high impact collisions with vehicles. The courts therefore couldn’t deduct compensation awards made to cyclists as they didn’t have sufficient evidence to support the concept that a helmet could affect the severity of a head injury. The Reynolds case was different as there were no vehicles involved and the judge found that the impact speed was likely to have fallen within the range at which helmets are tested.

“The current European standard for cycle helmets requires the provision of head protection for a cyclist falling onto a flat surface travelling at no more than 15mph,” said Matthew. “The requirements involve a freefall drop from 1.5 metres onto a flat and kerb-shaped anvil with an impact speed of no greater than 12.1mph. As the impact speed was found to have exceeded 12.3mph in the Smith v Finch case, the judge was unconvinced a helmet would have made any difference to the claimant’s injuries.

“This is a recurring theme and as of yet, no court has found that a helmet would have made any difference to a claimant’s serious injuries following a high impact,” added Matthew. “The circumstances of an accident are crucial in determining causation and the type of accident likely to give a defendant an argument regarding causative contributory negligence might involve for instance a car door being opened in the path of a slow moving cyclist who then suffers scalp lacerations as a result, i.e the kind of claim more likely to end up being settled out of court.”

Many out of court settlements of this nature are comparatively lower in overall value than those settled in court and as such, the pressure is on to keep litigation costs down by achieving quick settlements at a relatively low cost. As a result, reductions in liability are often taken so as to prevent the prolonged and expensive research required with the instruction of experts – the differing opinions of whom regarding the wearing of cycle helmets mirror the countless studies available either condemning or supporting helmet use. As each low level settlement is fed into insurance industry statistics, an ‘industry standard’ reduction occurs and it is only in large cases involving serious injuries that this standard can be challenged, ironically in the very cases where any pro-helmet arguments are more often than not deemed redundant.

So should cycle helmets be worn or shouldn’t they?

Very few people would argue against the voluntary use of helmets. However, it is the active promotion of helmet use - particularly in regard to mandatory helmet laws - that attracts the most controversy. Those advocating the use of helmets, such as road safety campaigners, brain injury charities and those who believe helmets have already saved their lives or spared them more serious injury, invariably believe that in the event of a fall, a helmet might spare them from lifelong disability by significantly reducing the severity of any potential head injury suffered.

Although arguments against helmet use initially involved issues surrounding personal liberty and freedom of choice, the balance started to change during the 1990s when the health benefits of cycling became more widely acknowledged and more and more research was conducted looking at the effects of cycle helmet legislation. Many helmet-sceptics believe that there is no demonstrable link between helmet use and cyclist safety, citing evidence suggesting that so far as can be determined, nowhere in the world has compulsory helmet use led to a fall in head and brain injuries relative to cycle use, and that the promotion or mandating of helmets is a disproportionate response to what they believe is the small and often overstated risk of serious head injury that unhelmeted cyclists face.

“Two-thirds of collisions between adult cyclists and vehicles are deemed by the police to have been the fault of the motorist,” said Matthew. “Helmet campaigners often assume that helmets are as effective at preventing brain injuries and fatalities as they are at preventing lacerations and minor concussions. In London, more than 50 per cent of cycling fatalities are caused by large vehicles turning left at junctions. Sadly, no helmet in the world is going to save anyone from being crushed under a heavy-goods vehicle whose driver failed to see them on the inside. As such, any reflex response that the absence of a helmet might be a causative factor in someone’s injuries often ignores the reality on our roads.

“Many cyclists believe the greatest risks of serious injury come from aggressive or inappropriate driving and poor cycling behaviour and that by institutionalising the concept that helmet use is necessary for safe cycling, attention will shift away from preventing collisions from happening in the first place to blaming cyclists who are injured through no fault of their own,” added Matthew. “Any legislation must put the onus on those who cause these types of collisions, not the victims.”

Some believe that by forcing people to wear helmets, legislators are unwittingly conveying the message that cycling is an inherently dangerous activity. According to various studies, such mandatory helmet use actually deters individuals from cycling and creates concerns about liability. This leads to a reduction in the numbers of people cycling and increases the risk of injury to those continuing to cycle helmetless or otherwise. Put simply, more cyclists mean fewer accidents with the critical mass theory suggesting that the more commonplace and visible bikes become on our roads the more motorists will learn to afford them space and treat them as equals.

Another argument born from the findings that helmet laws tend to lead to an immediate reduction in cycling is the predicted overall damaging effect on public health any compulsory helmet law would lead to. The now widely acknowledged health benefits of regular cycling are so vast to both individuals and society that many members of the British Medical Association and The Royal College of General Practitioners believe that any arguments regarding risk and compulsory helmet use are simply a waste of time and that the benefits of cycling on cardiovascular diseases, strokes, diabetes, cancers, obesity and mental health problems far outweigh any risks involved.

“It is concerning that an automatic implication of fault for failing to wear a helmet is gathering currency and that many personal injury lawyers, insurance companies and coroners are focusing too much on the question of helmet use, rather than analysing the cause of the vast majority of accidents involving cyclists, that of negligent driver error,” said Matthew. “Many injuries to cyclists could not under any circumstances be prevented or remotely affected by the wearing or absence of a helmet. Seeing that helmets can clearly only protect the crown of the wearer’s head, it is absolutely wrong for a helmetless collision victim to be held culpable without a great deal of further investigation.”

In the 2001 case A (a child) v Shorrock, a QC repeatedly tried to persuade a group of experts including neurosurgeons of the common sense rule, that it must logically be safer to wear a helmet than not. All of the group refused to agree saying the performance of cycle helmets was too complex a subject for such a generalised claim to be made and that all had seen severe brain damage and fatalities amongst both helmet-wearing and bare-headed cyclists.

“Many people remain surprised that there is no law governing the use of helmets for children,” said Matthew. ”Although the number of children who suffer serious albeit non life-threatening head injuries each year in England numbers no more than 500 out of a population of 6 million children who cycle often, children are obviously particularly vulnerable whilst cycling as they do not have the same awareness, competency, balance or experience that adults are expected to have when it comes to cycling. Helmets undoubtedly have the potential to affect the outcome of a head or brain injury suffered by a child or a young person coming off their bike when there are no other vehicles involved and as a society it would perhaps be prudent to do everything we can to protect them.

“The safest forms of travel are walking and cycling,” added Matthew.  “Cycling is not inherently dangerous but like pedestrians, cyclists are more vulnerable and susceptible to serious injuries than motorists. Driver error is responsible for 90 per cent of all collisions on the road and as such, they have the major responsibility to take care. Rather than making cycle helmets compulsory for all we should instead be concentrating on calling for a range of additional measures to improve cyclists' safety, such as more widespread 20mph limits, more traffic-free and segregated cycle lanes - especially on key commuter routes - and a greater emphasis on awareness campaigns aimed at educating both cyclists and motorists in how they can share the limited road space we have in the most effective and appropriate way.”

Although the Royal Society for the prevention of accidents (RoSPA) have a policy that recommends all cyclists wear a helmet, they also state that ‘The most effective ways of reducing cyclist accidents and casualties are to improve the behaviour of drivers, improve the behaviour of cyclists and to provide safer cycling environments.’

How can Fentons help?

Fentons has a specialist department experienced in handling claims for individuals who sustain serious injuries in road traffic accidents.

If you think that you have a case or require further information contact Fentons on 0800 0191 297 or fill in the online claims questionnaire.