HELMETS - HELPFUL OR HOPELESS?
NEGLIGENT OR NOT?

PIBA 10TH APRIL 2005

Introduction
Seat belts
Motorcycles
Cycles
Horses
Work
Causation
Apportionment
Evidence 
Miscellaneous 
	Hitchens
	Varied information from the web
	Williams
	Other countries, activities and advice

INTRODUCTION
1.	Motorcycle helmets have been compulsory for years, but cycle helmets have not. It is moderately common nowadays for defendants to make an allegation of contributory negligence against a cyclist who was not wearing a helmet; surprisingly perhaps, there seems to be little clear authority, and the worry for claimants’ lawyers is that uncertainty breeds weakness, which leads to disadvantageous settlements.

SEAT BELTS
2.	I start with seat belts because many of the juridical principles are likely to be relevant.

Front
3.	From 1967, all new cars had to be fitted with front seat belts - 1970s “clunk click every trip” - compulsion suggested first in 1973, but not imposed until 1983 temporarily, and permanently in 1986.

4.	The Highway Code has said, since 1968 (note that it took seven years before Froom v Butcher was decided): “fit seat belts in your car and make sure they are always used”. The RTA 1972 provides that failure to observe advice in the Highway Code can be relied on as tending to establish or negative liability

5.	Froom v Butcher was decided in 1975. Lord Denning: because we all live in a practical world, the issue should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side (in particular, as to whether the driver was grossly negligent or only slightly negligent) - therefore 0/15/25%. But see comments below.

6.	Patience v Andrews [ 1983] RTR 447 - the judge held that the court is not concerned to enquire what alternative injuries would have been suffered if a seat belt had been worn - Luke J*** (two others killed, him paralysed - no allegation of contributory negligence)

7.	Hitchens v Berkshire CC 1999 - (see below) HHJ Thompson QC would have deducted 50% to 70% if he had not been bound by Froom v Butcher (why, I wonder?)- this fuelled the rumour that the insurance industry was going to attack the 0-15-25% rule, particularly the 25% limit.

8.	J (a child) v Wilkins [2000] P.I.Q.R. P179 - Claimant travelling on mother’s knee in the front, with lap belt around her - Keene LJJ said that the Court of Appeal in Froom v Butcher was not imposing an absolute ceiling in every case. This is the second of the two cases which were being used by insurers to give weight to the argument that it is time to re-visit the percentages.
HELD: 	(1) Any consideration of apportionment had to begin with the statutory test in s.2(1) Civil Liability (Contribution) Act 1978 whereby the contribution due from any party was as the court found to be "just and equitable having regard to the extent of that person's responsibility for the damage in question".....
(3) Whilst it was right that Froom v Butcher (supra) was concerned with a reduction in damages for contributory negligence, and not as to the contribution due as between joint tortfeasors, the language of s.1 Law Reform (Contributory Negligence) Act 1945 bore a striking similarity to that used in s.2(1) of the 1978 Act. In those circumstances there was no reason for not adopting the same approach to the question of apportionment as to contributory negligence, such an approach being implicit in the decision in Ingram v United Automobile Service Ltd (1943) KB 612. (4) In Madden v Quirk (1989) 1 WLR 702 at p.707E Simon Brown LJ said, in considering s.2(1) of the 1978 Act that "responsibility involves considerations both of blameworthiness and of causative potency". That of course was also the test under the 1945 Act (see Davies v Swan Motor Co (Swansea) Ltd (1949) 2 KB 291 at p.326) and accordingly the judge had not been wrong to have relied on Froom v Butcher.

Rear
9.	Compulsory fitment 1987 - children under 14 1989 - adults 1991.

General
10.	In South Australia, if the injured person was not wearing a seat belt, damages must be reduced by 15%, with a further deduction if the court wishes.

MOTORCYCLE HELMETS
11.	O’Connell v Jackson [1972] 1QB 270 - 10% deducted by Court of Appeal for injuries which would have been less if a helmet had been worn - before statutory compulsion in 1973 - the Highway Code said: “When on a motor cycle ...always wear a safety helmet”.

12.	Capps v Miller 1989 1 WLR 839 - an unfastened crash helmet was just as ineffective a way of wearing a helmet as was an unfastened seat belt one of wearing a seat belt. This was not a case of de minimis & defendant was 10% contributorily negligent. Appeal allowed.

CYCLE HELMETS
Negligence
13.	We are used, in relation to seat belts and motorcycle helmets, to considering only causation, but it is important to remember that, until there is a binding decision or statutory compulsion, there is a debate whether it is negligent to fail to wear a cycle helmet.

14.	Williams v Ashley 1999 - (see below) HHJ Rogers QC as HCJ - the allegation of failing to wear conspicuous clothing was abandoned on the morning of trial, and the helmet point (whether it was negligent to fail to wear one) was abandoned five minutes before trial.

15.	In A (a child) v Shorrock 2001, the judge said that failure to wear a helmet was not contributory negligence.

16.	The Cyclists Touring Club seem to have helped two cyclists to fight allegations of contributory negligence by failing to wear helmets, in 2001 and 2002.

17.	Major settlement in 2003 after RSA abandoned the allegation.

18.	In 2004 a private member’s Bill was put before Parliament to make cycle helmets compulsory. That had been done previously in 1998-9.

19.	The British Medical Association and the Royal College of General Practitioners have argued that the health benefits of cycling outweigh the risks of not wearing a helmet - but that is based apparently on the supposed evidence that statutory compulsion puts people off cycling, and it compares cycle deaths to heart disease. The BMA’s current stance is that helmet-wearing should be compulsory for cyclists of all ages (see below). According to the web site of CTC, “the UK’s national cyclists’ organisation”, the BMA’s previous policy (encouragement, not enforcement) was based on a comprehensive examination of the helmet issue, published in 1999. By contrast, the new stance is said to be based on a short paper which takes a very selective view of the evidence, ignoring a great deal of evidence to the contrary; it cites a number of misleading (and in some cases incorrect) references without referring to published critiques of these; it identifies just one counter-argument to its conclusion (even though many are raised in the published literature), and this one argument is said to be dismissed on entirely spurious grounds. 

20.	Cycling organisations assert that cycling regularly reduces the incidence of all sorts of serious illnesses - note the claim by an MP that about 28,000 children under 16 receive a serious head injury due to a cycling accident - and that wearing a helmet would reduce that figure by 85% - BUT the 28,000 is for all serious head injuries - actual 1,200 - the 85% has been withdrawn, and the statistics used for that figure have been re-calculated to produce a figure which is statistically insignificant.

21.	Drinkall v Whitwood [2003] EWCA Civ 1547 - 20% deduction agreed by parties, but Defendant then sought to withdraw from that agreement, so that they could argue for 25% (on appeal).

22.	There is an  impression that claimants’ lawyers are frequently agreeing to a 25% deduction - it is difficult to say whether this is so, but it is an obvious risk. If they are, it is likely to be because they feel that a court would consider it negligent not to wear a helmet.

23.	The evidence available to the ordinary cyclist - the Highway Code - public perceptions.

24.	Government advice - advertising (compared to seat belts) - the Department for Transport is encouraging wider use of helmets - Cycle Safe - Tips for Safer Cycling - “Wear a helmet” - Highway Code “Rules for Cyclists - Clothing: you should wear a cycle helmet ...” (and, incidentally, cyclists should wear light-coloured or fluorescent clothing). But Dr Kim Howells, Transport Minister, said earlier this year that, although he wears a cycle helmet, he does not believe that any helmet compulsion law could be enforced in this country, and therefore a Private Member’s Bill is unlikely to be supported by the DfT. If this is his view, and that of the Government, what effect would that have on a consideration of whether it is negligent to fail to wear a seat belt? The argument for defendants could be that the failure by the Government to enforce helmets cannot be prayed in aid by claimants who fail to wear them, because the Government’s stance is dictated by considerations which have no impact on the legal issue of whether it is negligent not to wear them.

25.	An argument put against helmets is that pedestrians and young drivers are more at risk than cyclists in terms of numbers of serious injuries - far more pedestrians and vehicle occupants sustain serious head injuries, and children are more likely to sustain brain injury through jumping and falling. However, this is unlikely to be a compelling argument because, however small the cohort, if it is clearly negligent to fail to wear a helmet, courts will so find.
26.	The balancing of small cost and inconvenience against the appalling results may be one factor in the equation; however, it may not be decisive, because there are some other important factors. Some people would regard freedom as being at stake (although that was an argument against seat belts too). Perhaps more important, the scientific position may not be sufficiently clear for the public to be expected to abide by what the informed scientists may consider to be proved. On the other hand, if the Government advocates the use of helmets, should that be enough for judges to say that, despite the vocal controversy, the public should accept the advice, even though that advice is not considered sufficiently important or well-supported to be enshrined in statute (remember that the Highway Code advocated the use of seat belts long before the statute was passed).

27.	There are very few papers written by informed medics which are against the use of helmets. But this still might not mean that the cycling public (who will be very diverse in their approach to cycling, from casual to fanatical) is negligent in not heeding the medical opinion.

28.	A significant proportion of cyclists are children. How should their negligence be assessed? There is an age below which no child would be blamed, and an age above which they should know better, but what about the middle of the range? Many considerations might come into play here; for example, what were they told by their parents, was a helmet available, do other children in the locality wear helmets, what sort of area is it, what type of journey, what hazards? One possible irony is that the area where a helmet may be least likely to protect is against impact with vehicles, ie ordinary roads, and yet that is precisely where most people would consider that they should be worn.

HORSES
HORSES(PROTECTIVE HEADGEAR FOR YOUNG RIDERS) ACT 1990(C. 25)
29.	An Act to secure the wearing of protective headgear by children while horse riding; to prescribe offences and penalties; and for connected purposes. 13th July 1990.

1. -(1) Except as provided by regulations, it is an offence for any person to whom this subsection applies to cause or permit a child under the age of 14 years to ride a horse on a road unless the child is wearing protective headgear, of such description as may be specified in regulations, in such manner as may be so specified.

WORK
30.	Royal Mail has made the wearing of cycle helmets compulsory for its 37,000 cycling delivery workers - the largest cycling fleet in Europe. The move is said not to be popular with many postal workers, who complain that they have not been given a balanced appraisal of the pros and cons of cycle helmets.

31.	I have only one experience of military helmets; the Claimant was in an observation tower, supervising grenade practice - he was crouching down behind the parapet of the open-fronted tower, but was severely brain-injured by shrapnel, even though he was wearing his helmet. The shrapnel had ricocheted somehow from the front of the tower, and travelled backwards to hit him.

32.	Police?

CAUSATION
33.	If a decision is made to concede contributory negligence, then it is always important to assess causation.

34.	In a recent case there were three medical experts who all considered that helmets are acknowledged to be beneficial, and that therefore a helmet would have prevented, or substantially reduced, the Claimant’s injuries. One of them admitted that he had no specialist knowledge, but felt that the proposition was so obvious that it needed no argument. What was of interest in that case, though, was that the Claimant had been thrown off the pillion and had flown through the air, landing on the road. He suffered severe brain damage. The only fracture was a small one in the area of the eye. How then did the damage occur? Was this the result of the head hitting a solid, but non-fracturing object? If so, would a helmet have made any difference, or was it the equivalent of the contre-coup brain injury seen so often in other circumstances? Whatever the correct answer to those questions (which will depend on evidence), it would be important to investigate them thoroughly.

35.	In relation to cycle helmets, which are designed differently from racing car and motorcycle helmets, there is a separate issue on causation depending on the nature of the impact. In Williams v Ashley, the Claimant’s expert considered that there was a significant difference between an impact with a vehicle, as distinct from hitting the road, and also that there is a difference between direct and glancing blows. He said that the injury in that case, caused by the Claimant’s face hitting the road, would not have been prevented by a helmet.

36.	A similar point arises in relation to the site of the injury in smaller cases; it is acknowledged that there are limits to the protection afforded by cycle helmets because they are not as all-enveloping as the others (so that they are less intrusive?).

APPORTIONMENT
37.	The apportionment of contributory negligence is based on blameworthiness and causative potency. Therefore it is always worth looking at the behaviour of the Defendant and the Claimant - eg appalling driving and fleeting failure to wear a helmet. This may be particularly important in the case of cycle helmets, because it is possible that one could have a case where blameworthiness is very unequal. Also, what would the position be in relation to children? There was a decision in South Australia in 1981, that the failure to wear a seat belt was “venial” compared to the manner of the driving, resulting in a deduction of only 10%. Section 1 of the Law Reform (Contributory Negligence) Act 1945 provides that  “damages recoverable shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.

38.	In O’Connell v Jackson [1972] 1QB 270, two of the Court of Appeal felt that 10% was the appropriate deduction because it was less blameworthy to fail to fasten the helmet properly than it was to fail to put it on.

EVIDENCE 
39.	In seat belt cases, there are usually two issues; was a properly-adjusted seat belt (assuming that it was fitted and available) being worn and, if not, would it have prevented or reduced the injuries.
40.	In helmet cases, as is so often the case, evidence is vital. Unlike seat belts, there is unlikely to be doubt whether the claimant was wearing a helmet, but if it has come off in the accident there may be a dispute whether it was correctly fastened. That could have implications when considering apportionment.

41.	The second issue, if one is not worn, is the same as with seat belts. This applies equally to cycles and motorcycles, but there are vastly different considerations eg design and speed. See Williams v Ashley. It may be important to emphasise here that the design of cycle helmets is very different from motorcycle ones; as can be seen below, the design criterion is that they are capable of withstanding an impact equating to about 12 mph, onto a shape representing a kerb. That fact, coupled with their shape, means that they have to be considered differently.

42.	Interestingly, in that case one of the many arguments apparently being run by the defence was that the claimant’s expert was not qualified to express an opinion whether a helmet would have prevented or reduced the injury, because he was not medically qualified (presumably a doctor would need expertise in the mechanics of brain injury). We never had to litigate that issue; whether it could succeed would depend on the nature of the injury. As usual though, the decision on the nature of the experts required, together with the selection of the best ones for the particular case, is one of the essential skills of the personal injury barrister. This type of specialisation is one of our major selling assets, and we must be astute to ensure that we are knowledgeable on topics such as helmets in all their manifestations.

43.	A recent experience involved a young man on the pillion being thrown through the air, landing on his head. No skull fracture. Therefore the argument is that the brain might be subject to the same acceleration/deceleration/shear forces as it would have been had he been wearing a helmet. Of course, evidence is required to raise/prove that point (burden of proof).

44.	Above all, every case is different, and requires individual consideration.

22nd March 2005
BILL BRAITHWAITE QC

MISCELLANEOUS

NICHOLA ANN HITCHENS V BERKSHIRE COUNTY COUNCIL 1999 QBD 
Anthony Thompson QC 13/10/99 

A local authority that had failed to grit a highway was liable for the death of a motorist who lost control of his car on an icy road. The parties agreed to increase the figure for contributory negligence for failure to wear a seat-belt following judgment from 15 per cent to 50 per cent.
A claim for damages brought under the Fatal Accidents Act 1976 by a widow ('C') on her own behalf and on behalf of her daughter arising from the death of her husband ('H'). In the early hours of 1 January 1994, H was working as a self-employed taxi driver when he was involved in a fatal accident on the A4 Bath Road. He was 29 years of age. There were no witnesses to the accident and no other vehicles were involved. From the evidence of a reconstruction expert it appeared that H had lost control as he rounded a bend and hit a tree. He was not wearing a seat-belt and was ejected from his car. A number of witnesses who attended the scene shortly after the accident happened testified to the slippery nature of the road and the absence of any sign of salt. A joint report prepared by civil engineers concluded that all the evidence indicated that the length of road where the accident occurred was not salted as it should have been. Both liability and quantum were in issue at trial.

HELD: (1) The defendant's primary liability for the accident was established. It was clear that the defendant's duty to maintain the highway included taking preventative or ameliorative measures such as gritting where there was ice present Cross v Kirklees Borough Council (1998) 1 ALL ER 564). The defendant had in place a proper maintenance programme to deal with such conditions and a proper means of weather forecasting but it was clear that on the night of the accident instructions had not been followed and the road had not been salted as it should have been.

(2) The defendant raised the issue of contributory negligence in respect of H's speed and his failure to wear a seat-belt. There was no evidence to suggest that H was travelling in excess of the speed-limit or that he was warned that the road surface was slippery.

(3) H was not wearing a seat-belt at the time of the accident which he should have been as he did not have a fare on board. The evidence suggested that if H had been wearing a seat-belt, he would have survived the accident and suffered minor and easily reversible injuries at worst. Had the instant court been free to approach the matter unguided by authority, it would have found a very substantial degree of contributory negligence on the part of H of at least 50 per cent. However, the court was bound by the decision in Froom v Butcher (1976) 1 QB 286 and, accordingly, H’s damages would be reduced by 15 per cent. The damage would not have been avoided altogether if H had been wearing his seat-belt (in which case the reduction would have been 25 per cent), but H's injuries would certainly have been less severe and survivable.

(4) The issue of quantum would be determined on the basis that H would have remained as a full-time self-employed taxi driver earning £12,420 per annum (increased at a rate of 4 per cent annually) and the appropriate multiplicand was 20.5. A further figure for DIY of £500 per annum would also be allowed which would attract a multiplicand of 23 to compensate beyond retirement age.

(5) PER CURIAM: It was perhaps time for the Court of Appeal to look afresh at the appropriate level of contributory negligence where seat-belts were not worn by those who suffered severe injury or death, and where the damage could either have been avoided or substantially reduced by a seat-belt. Up-to-date guidance was necessary because not only was it a criminal offence not to wear a seat-belt, but also there had been a sea change in attitudes to the wearing of seat-belts.

Judgment for C in the sum of £187,500. Leave to appeal granted to the defendant on the finding of 15 per cent contributory negligence.

Following judgment the appeal point was conceded by C and by consent the sum of £187,500 was set aside and a lesser sum of £110,000 substituted in full and final settlement of the claim, that figure representing a 50 per cent reduction against H.
	****

VARIED INFORMATION FROM THE WEB

According to Dr Mayer Hillman, Senior Fellow Emeritus at the Policy Studies Institute in London, who has undertaken the only major international research of the evidence on the use of helmets, you're better off not wearing a helmet. 

"By wearing helmets, cyclists are, at best, only marginally reducing their chances of being fatally or seriously injured in the rare incident of a collision with a motor vehicle." 

He believes protective devices encourage higher levels of risk taking. 

"Imagine you're driving a car in the outside lane of the motorway and a wasp has got under your seat belt. To free the insect you undo your seat belt. Instinctively you slow down the car because now you're not strapped in, you feel vulnerable." 

Dr. Hillman believes that in feeling vulnerable you will instinctively behave more cautiously. 

"The problem is you can't show how many cyclists have avoided head injury by riding with more vigilance. However studies show that when you don't wear a protective device you compensate for the risk you run. For instance, if motor vehicles were fitted with a spike in the centre of the steering wheel which pointed towards the driver's chest, the driver would drive slower in the knowledge that should they hit something they'd be the first to get hurt." 

Dr Hillman believes that by being more careless, the helmet-wearer is using up any extra protection offered. 

"Cycle helmets provide limited protection for the head. Neither manufacturers nor retailers tell the public this." 

"You're much better off cycling with extra care than you are wearing a helmet and riding with an exaggerated sense of security," says Hillman. 

"Non-cyclists say they don't cycle because they think it's too dangerous. If you tell them they should always wear a helmet when they ride you're reinforcing their belief that it's dangerous. I have calculated that the health benefits of regular cycling in terms of life years gained through increased longevity, far outweigh the loss of life years in cyclists' deaths." 

Dr. Hillman doesn't even recommend children should always wear a cycle helmet while cycling. 
He says: "If they were using the bike for dare devil tricks such as if they were deliberately testing their skills, yes, but not if they were simply using the bike as a form of transport." 

Safety & Security.. Cycling Helmets
Wearing a helmet could save your life. Fact or Fiction?
The truth is that there is no simple answer. Certainly, in some accidents a helmet can reduce the risk of severe head injury but every accident is different and therefore the outcome can never be judged before the incident. Indeed the majority of head injuries which result in death are caused by collision with other vehicles, travelling at comparative high speed, something which a bicycle helmet is not designed to cope with (See "What can a helmet do?" below). In reality, the numbers of these serious head injuries is extremely low and it is felt that the overall health benefits offered by regular cycling far far outweigh the small amount of risk involved. 

Is it compulsory to wear a helmet? 
Currently in the UK there is no legislation which places any requirement on you to actually wear a helmet. Whether to wear a helmet or not is currently a matter of personal choice (the majority of the cycle industry wishes it to remain that way). 
There are both pro compulsory and anti compulsory arguments, both of which are simply too complex to publish here, however an excellent article covering both sides of the story exists at  and we would recommend that you take the time to read both arguments before making up your own mind. 

What can a helmet do? 
As with most safety orientated products, bicycle helmets have to pass certain standards prior to being allowed to be sold. What may be surprising is the exact nature of those standards.
Cycle helmets are only designed and tested to withstand an impact equivalent to an average weight rider travelling at a speed of 12 mph falling onto a stationary kerb shaped object from a height of 1 metre.This is the equivalent of falling from your bike onto the road or the kerb edge. Helmets are not tested nor expected to be able to offer full protection if you come into contact with a vehicle which is moving. 

The importance of size 
If you decide that you should wear a helmet then for that helmet to be able to offer you any worthwhile protection it must be the correct size AND fit. To understand why size and fit is so important, you need to understand how a helmet works.  Bicycle helmets are manufactured from expanded foam polystyrene, similar to the type of stuff polystyrene coffee cups are made from. Polystyrene is structurally rigid and can be moulded into virtually any shape. However whilst being structurally rigid, it is a material which is easy to damage by crushing because it contains a high number of tiny air pockets. The process of crushing absorbs energy. It is these facts which make it ideal for the construction of bicycle helmets. Any moving object has energy. To stop an object from moving, this (kinetic) energy must be removed by conversion to other energy forms, eg heat and sound OR by using it to alter the chemical or structural composition of a material.

What evidence is there that cycle helmets save lives?
There is no direct evidence that the wearing of cycle helmets has led to fewer deaths amongst cyclists. Most research into cycle helmets has not included cyclist fatalities.
The premise that helmets save lives is by extrapolation from research that has suggested that helmets might reduce injuries to the head. As most fatalities involve head injury (this applies to all causes of premature death, not especially cycling), the reasoning is that by reducing injuries to the head, cycle helmets can lead to fewer cyclist deaths.
However, whole-population statistics for cycling fatalities do not support this hypothesis. 
In Great Britain, the United States, Canada, Australia and New Zealand there has been no discernible improvement in fatality trends, relative to levels of cycle use, as helmets have become more common.
In New South Wales (Australia), in the three years following the introduction of its helmet law, 80% of cyclists killed and 80% of those seriously injured wore helmets at the time. These proportions are almost identical to wearing rates in street surveys (85% and 83% for adults in 1992 and 1993 respectively; 76% and 74% for children, suggesting that helmets had little effect on the likelihood of fatal or serious injury. 
Specific research into fatalities in Sheffield, UK, has shown that even if head injuries were eliminated completely, at least 50% of cyclist deaths would still occur. Most fatalities involve multiple injuries and head injury is not by itself the cause of death. Furthermore, most fatal head injuries usually involve rotational forces, which cycle helmets do not mitigate and may even make more likely.
Despite the considerable effort that has been put into research about cycle helmets, there is no real-world evidence that helmets have ever resulted in a net saving of even a single life. Potentially, a much greater number of pedestrian and motor vehicle occupant lives could be saved if these groups wore helmets.

BRIAN WILLIAMS -v- JACQUELINE ASHLEY
	CYCLISTS’ HELMETS AND CLOTHING

	Mr Brian Williams was born on the 1st March 1950 and so was 46 when he was grievously injured in a road traffic accident on the 7th July 1996.  His case came on for trial of liability on the 22nd October 1999, and raised some interesting points which practitioners might find of value.

	Mr Williams was cycling along a fairly minor country road in North Wales when the Defendant drove her car along an even more minor road, up to the junction with the road Mr Williams was on, and drove straight out without stopping, directly in Mr Williams’ path.  Sadly, when he then collided with the Defendant’s car, he was thrown over the car onto the road, sustaining extremely severe brain damage.  The Claimant had no recollection of the accident, but by the most enormous good fortune there was an independent witness who was able to negative the Defendant’s denial of careless driving, coupled with her accusation that the Claimant was himself negligent by riding too fast, with his head down and not looking where he was going, and failing to see her approaching the junction. 

	However, the two major allegations of contributory negligence were that the Claimant failed to wear a cycle helmet, and failed to wear fluorescent or conspicuous clothing.  Each side obtained expert evidence, which was served in the early part of 1999 pursuant to the directions order.  The Claimant relied on Dr Nigel Mills, who has vast experience in helmets, having been, amongst other things, the chairman of the British Standards Institution committee for motorcycle helmets in January 1994, and a member of the umbrella committee which oversees all helmet committees.  He concluded that 
	1	there is no legal requirement to wear a helmet
	2	helmets are less effective when a cyclist hits a vehicle than when he simply hits the road, and helmets do not eliminate injury
	3	serious brain injury is quite common when cyclists are hit a glancing blow by a vehicle, as distinct from a direct collision
	4	the site of the impact on the right side of the face would not have been protected by a helmet
	5	the Claimant’s head injury was due to the right side of his face hitting the road, and a helmet would not have reduced his injuries
	6	a report in 1994 found that most cyclists do not wear helmets.

	The Defendant obtained a report from Mr Kevin Clinton, a project manager in the road safety department of the Royal Society for the Prevention of Accidents.  His report extended to 26 pages, dealing with a good deal of background history in relation to helmets and cycling clothing, and might have been thought to support the allegation that it was negligent in 1996 not to wear a helmet when cycling, and that it was also negligent to wear inconspicuous clothing.  

	In June 1999 the Defendant’s solicitors offered to settle the claim (which is likely to be very substantial) at 80% of full liability, on the basis that the Claimant was himself 20% to blame.  We rejected that offer, and it was followed by a Part 36 offer, in August 1999, that the Defendant would accept 90%, the Claimant being responsible to the extent of 10%.   That offer also was rejected.  

	So far, this is just another history of “negotiations”, but it is worth remembering that both cyclists’ helmets and cyclists’ clothing are potentially contentious and difficult issues, and many people might be persuaded to settle (particularly bearing in mind the financial pressures on privately paying clients involved in substantial litigation).

	Two days before trial, in a skeleton argument which was not received by anyone on the Claimant’s side until the morning of trial, the Defendant abandoned the allegation of failure to wear conspicuous clothing.  At 10.25am on the morning of trial, the Judge having expressed the view that he wanted to start promptly at 10.30, the Defendant abandoned the helmet issue.  

	The Judge (His Honour Judge Rogers Q.C., sitting as a Deputy High Court Judge) commented that it was not surprising that those allegations should be abandoned, but I expect the Claimant’s wife, his litigation friend, was surprised.  Perhaps she did not realise that brinkmanship operated to such an extent in litigation concerning the destruction of a man’s life.  

	In addition to the issue whether it was negligent in 1996 to fail to wear a helmet, there was also a causation point: Dr Mills said that a helmet would not have protected the Claimant from the injuries which he sustained.   The Defence argument was that Dr Mills was not qualified to express an opinion on this point, and that there would need to be a detailed explanation of precisely how the brain injury was caused.  
	There must be many cases in which cyclists are blamed for failing to wear a helmet, and failing to wear conspicuous clothing, and therefore it may be worthwhile for practitioners to know that even a detailed report from the Royal Society for the Prevention of Accidents will not necessarily be sufficient to win the point.
3 November 1999

OTHER COUNTRIES, ACTIVITIES AND ADVICE

HEADWAY
Facts and Figures 
Admissions to hospital and deaths from cycle related traumas are usually due to head injury1. In terms of cyclists2, it is known that in the United Kingdom: 

•	8 out of 10 young people cycle 
•	Each year approximately 200,000 people are injured through cycling accidents and receive hospital treatment 
•	50% of these are children aged 16 and under 
•	Over 1,300 under 16 year olds are killed or seriously injured each year through pedal cycling accidents 
•	70% of all pedal cycle fatalities are due to head injuries 
•	Standard Approved cycle helmets are proven to be effective in reducing head injuries in cycle related accidents by 85% 
(BUT note that CTC gives the following statistics:
Contrary to the impressions of many non-cyclists, cycling is not an especially “dangerous” activity, nor is it particularly prone to result in head injuries. Around 38% of child cyclists’ hospital admissions are for head injuries. This figure is only marginally higher than the figure for all child injuries (34%) and lower than the figure for child pedestrian injuries (44%).

The wearing of approved helmets by cyclists has been made compulsory in several states in Australia (1990), in the United States and, more recently, in New Zealand (1994). However the use of cycle helmets remains low in Britain, with only 18% of young people who cycle wearing them. 
Why Wear a Cycle Helmet? 
Cycle helmets reduce serious injuries to the head that result from direct contact with a hard surface, by distributing the force over a larger area and through absorbing some of the energy. 
Wearing a helmet cannot always prevent long term disability. 
Part of the energy of an impact is absorbed by the helmet, so reducing the force of the blow to the head. The structure of the helmet may be damaged in absorbing this impact and any helmet that sustains a severe blow needs to be replaced even if damage is not obvious. 
European Standards 
The European Standard CEN1078 was approved on 9th January 1997 and supersedes any previous National Standards. Headway was represented on the British Standards Committee concerned with the introduction of this standard. Headway is in support of the Charter objectives of the Bicycle Helmet Initiative Trust. 

Bump Caps and Industrial Safety Helmets 
Headway is represented on the British Standards Institute Industrial Helmet Technical Committee. 
Bump Caps EN812 
Industrial Bump Caps are intended to give protection to the wearer against the effects of striking the head against hard, stationary objects with sufficient severity to cause laceration or other superficial injuries. They are not intended to provide protection against the effects of falling or thrown objects or moving or suspended loads. 
An industrial bump cap should not be confused with an industrial safety helmet. 
Industrial Safety Helmet EN397 
These are primarily intended to protect the upper part of a wearer's head against injury from falling objects. The European Standard EN397 replaces BS5240. 

Equestrian Helmets 
Headway is represented on the British Technical Committee for riding hats and has worked with the British Horse Society and the Mark Davies Injured Riders Fund to achieve common safety objectives. 
Facts 
From a study of English riders wearing the BS 4472 pre 1988 helmet and attending hospital, it was found that people who sustain an injury to the front or the back of the skull are less likely to have a fracture3. This suggests that the BS 4472 pre 1988 helmet offered sufficient protection for most of these injuries, although it must be stressed that the contre coup and rotational affect of injury cannot be protected by this type of helmet. 
However, the majority of serious head injuries occurring in horse riders are to the side of the skull. This emphasises the need for greater protection in that area, which is an issue that has been addressed in the EN 1384, PAS 015 and other later standards. 
Road accidents produce the most severe head injury. In order to produce a more effective helmet, all round protection would be necessary. People wearing motorcycle helmets designed as such are known to have a low incidence of skull fractures following damage. However, the speed of impact is much higher and the helmets are more bulky than should be necessary for horse riders. 
***

J Ark Med Soc. 2004 Jun;100(12):430-3
Arkansas and the motorcycle helmet law
Bledsoe GH.
Department of Emergency Medicine, The Johns Hopkins Medical Institute, Baltimore, USA.
Motorcycle helmet laws have a long and colorful history dating back to the original work of Britain's Dr. Hugh Cairns during World War II. In Arkansas, the state's mandatory motorcycle helmet law was repealed in 1997 and replaced by a law requiring only those under the age of 21 to wear helmets. Recent work by researchers at the University of Arkansas for Medical Sciences has highlighted the impact of the helmet law repeal and demonstrated an increase in nonhelmeted motorcycle crash admissions, head injury severity, ICU length of stay and financial loss at this institution. In February of 2003, House Bill 1024 was submitted to the Arkansas House Committee on Public Transportation to reinstate the mandatory motorcycle helmet law for all motorcycle riders but was killed in committee. This article is a review of motorcycle helmet laws with particular emphasis on the arguments pro and con and the history of these laws in the state of Arkansas.
***

J La State Med Soc. 2004 May-Jun;156(3):151-2, 154-5, 157
Louisiana motorcycle fatalities linked to statewide helmet law repeal
Ho EL, Haydel MJ.
Louisiana State University Emergency Medicine Residency Program, New Orleans, USA.

BACKGROUND: On August 15, 1999, Louisiana's mandatory motorcycle helmet law was repealed. Our primary objective was to determine if the repeal resulted in an increase in motorcyclist morbidity and mortality. METHODS: We retrospectively evaluated the frequency of helmet use and morbidity and mortality before and after the repeal of the law. Fatality statistics for Louisiana were obtained through the National Highway Safety Traffic Association between 1994 and 2002. Injury statistics were totaled for motorcyclists admitted to Medical Center of Louisiana New Orleans during the same period of time. RESULTS: Statewide, helmet use decreased 21.2% (p < 0.001, chi-square) after repeal of the helmet law, while locally, helmet use decreased 34.7% (p < 0.001). Fatalities significantly increased after the repeal, both statewide (3.0%-3.9%, p < 0.05) and locally (3.8%-5.8%, p < 0.0001). CONCLUSION: Motorcycle helmet use decreased significantly and motorcyclist fatality rates increased significantly after repeal of the Louisiana mandatory helmet law.
***

Am J Public Health. 2004 Apr;94(4):556-8
Florida's motorcycle helmet law repeal and fatality rates
Muller A.
Department of Health Services Administration, University of Arkansas at Little Rock, 72204, USA. axmuller@ualr.edu

On July 1 2000, the State of Florida exempted adult motorcyclist and moped riders from wearing helmets provided they have medical insurance of 10,000 US dollars. Monthly time series of motorcycle occupant deaths are examined from 1/1994 to 12/2001. The interrupted time series analysis estimates a 48.6% increase in motorcycle occupant deaths the year after the law change. The impact estimate reduces to 38.2% and 21.3% when trends in travel miles and motorcycle registrations are controlled. Our findings suggest that the law's age exemption should be revoked.
	***

1: Inj Prev. 2004 Apr;10(2):99-102
Downhill skiing injury fatalities among children.
Xiang H, Stallones Letter, Smith GA.
Colorado Department of Public Health and Environment, USA.

OBJECTIVE: Young skiers are at increased risk for injury, however, epidemiological data on skiing related fatal injuries among child skiers are scarce. This study aimed to provide information needed to develop injury control and prevention programs. DESIGN AND SETTING: Study subjects came from Colorado, USA and were identified using a death certificate based surveillance system. Fatal injuries were limited to events that occurred at established commercial ski resorts in Colorado, and subjects were classified as child skiers (0-17 years) or adult skiers (> or =18 years). MAIN OUTCOME MEASURE: Type and external cause, time, and week day of injury, gender and residency of the decedents. RESULTS: During the study period from 1980-2001, 149 fatal injuries associated with downhill skiing were identified; 21 (14.1%) occurred among child skiers aged < or =17 years. The age of the youngest decedent was 7 years. In females the proportion of fatal injuries among child skiers was nearly three times that of adults. Traumatic brain injuries were the leading cause of death (67% of all deaths) among children, while multiple internal injuries and traumatic brain injuries accounted for almost equal proportions of fatal injuries among adults. Collision was the leading external mechanism of fatal injuries, accounting for more than two thirds of fatal injuries in both child and adult skiers. CONCLUSIONS: Traumatic brain injury was the leading cause and collision was the leading external injury mechanism of fatal injuries associated with downhill skiing among child skiers. This underscores the importance of brain injury prevention strategies, including the use of ski helmets and prevention of collisions on ski slopes.
***

In a recent study reported in the British Medical Journal, researchers found that wearing a helmet reduced the risk of head (brain?) injury by 29%, but could not rule out the possibility that wearing a helmet actually increases the risk of neck injury.
***

1: Pediatrics. 2004 Apr;113(4):e330-4
All-terrain vehicle legislation for children: a comparison of a state with and a state without a helmet law
Keenan HT, Bratton SL.
Department of Social Medicine, University of North Carolina, Chapel Hill, North Carolina 27599-7240, USA. hkeenan@med.unc.edu

BACKGROUND: All-terrain vehicles (ATVs) continue to be a source of morbidity and mortality in the pediatric population despite recommendations from the American Academy of Pediatrics that children <16 years old not ride in or drive ATVs. ATV injuries have increased significantly in both children and adults most years since 1997. OBJECTIVE: To assess the effectiveness of ATV regulations for children on serious injuries by comparing ATV-related admissions to level I and II trauma hospitals in a state with and a state without ATV regulations. DESIGN: Ecologic study. PATIENTS: Children <16 years old who died and/or were treated in the trauma system of Pennsylvania or North Carolina after ATV crashes. OUTCOME MEASURES: Injury types and cause of death were examined for all children. Comparisons were made by state (Pennsylvania [regulated] and North Carolina [unregulated]) for patterns of injury, place of injury, helmet use, and death. RESULTS: There were 1080 children identified in the trauma registries between January 1997 and July 2000. Forty-four percent required intensive care. Head injuries were the primary cause of death (45.7%). Fewer North Carolina children than Pennsylvania children (16.7% vs 35.8%) wore helmets, and they were more likely to be <11 years old (35.1% vs 27.8%). Living in North Carolina was an independent predictor for not wearing a helmet. CONCLUSIONS: Living in Pennsylvania was associated with decreased risk factors for ATV injury such as young age and riding unhelmeted. However, despite regulations, many children suffered serious morbidity and mortality. These data support the recommendation that children <16 years old should be prohibited from riding or driving ATVs.

Michigan Senate voted in 2005 to lift the 36 year old decree that motorcyclists should wear helmets - the Bill may be vetoed, as has happened previously, but the vote was regarded as a success by “leather-clad bikers”. The argument was that helmets offer little protection in crashes, and that some studies have shown that states without helmet laws have lower fatality rates for motorcyclists than Michigan.

***

BRITISH MEDICAL ASSOCIATION
Legislation for the compulsory wearing of cycle helmets
Board of Science and Education
November 2004

Introduction
The BMA has strongly supported the advice that all cyclists should wear properly fitted helmets but has not supported the proposal that this be made compulsory. This was not Annual Representative Meeting (ARM) policy but followed a recommendation made in the Cycle helmets (1999) report. 
In the past year we have received correspondence from a number of BMA members, in particular those treating injured victims of cycle related accidents on a daily basis, requesting that the BMA reconsider its existing policy on this issue [1]. In our 1999 report significant emphasis was placed on the BMA’s wish not to discourage cycling by making helmets compulsory. This advice was based on evidence from Australia indicating that cycling levels decreased following the introduction of legislation. This evidence is now outdated and contains distortions from variables including a reduction in the legal age of driving that meant more teenagers travelled in motor vehicles. A study from Ontario, Canada has demonstrated that introduction of helmet legislation did not reduce numbers of children cycling [2]. 

Research published in June 2003 for the Department for Transport revealed a growing trend for wearing cycle helmets in the UK. Wearing rates for the population as a whole rose from 16% in 1994 to 25% in 2002 [3,4].

The evidence
Cycle helmets are now compulsory in Australia [5], New Zealand [6], Spain, Iceland (aged under 16), the Czech Republic (aged under 16), Canada (aged under 18) [7] and twenty states in the USA. Studies in a number of these countries have shown that high usage rates of helmets as a result of legislation is associated with a reduction in cycle related deaths and head injuries. Evidence supporting the wearing of cycle helmets continues to mount:

It is estimated that 90,000 road-related and 100,000 off-road related cycling accidents occur every year in the UK, of which 53% (100,000) involve children under sixteen.

In 2002, 594 children and 1,801 adults were killed or seriously injured as a result of road-related cycling accidents.

Significantly, with child cyclists, 85 per cent of accidents occur off road where primary prevention measures such as cycle lanes, vehicle speed reduction and driver education are ineffective.

Several recent studies and discussions have provided scientific evidence that bicycle helmets protect against head, brain, severe brain and facial injuries, as well as death, as a result of cycling accidents: 
•	In the USA, a 30-month study of 3,854 cyclists showed that helmet usage decreased the overall risk of brain injury by 65 per cent and severe brain injury by 74 per cent in all age groups
•	An Australian study showed that wearing cycle helmets reduces both the incidence of facial injuries by 28 per cent and their severity
•	A Cochrane review considering five case-control studies from the UK, Australia and the USA illustrates a large and consistent protective effect from cycle helmets, reducing the risk of head and brain injury by 65 to 88 per cent and injury to the upper and mid face by 65 per cent
•	A study of primary school, secondary school and adult cyclists in New Zealand demonstrated a 19 per cent reduction in head injuries to cyclists in the three years after the introduction of legislation
•	In Victoria, Australia, an increase in helmet use from 31 per cent prior to legislation to 75 per cent one year after was accompanied by a decrease in head injuries by 40 per cent in the following four years
Enforcement
As with any other legislation enforcement is as important as the law itself. Without compliance the law is at best ineffective. To achieve maximum compliance, the legislation should be complemented by mass educational and promotional campaigns. Evidence from Australia and New Zealand showed that educational campaigns prior to the introduction of legislation resulted in an increase in helmet wearing from two per cent to up to 95 per cent

An education programme in Reading that promoted cycle helmet use among children and teenagers resulted in a local increase in usage from 18 per cent to 60 per cent and a concurrent decrease in cycle-related injuries. The most difficult group in which to increase helmet use was teenagers, who are often the category most at risk. One approach is to target educational programmes at adults, as evidence from a Seattle-based study suggests that helmet usage is greatest in children riding with helmeted adults.

At a practical level, enforcing the legislation can be achieved through on-the-spot fines or tickets issued by police and traffic wardens, while schools can ensure all children wear helmets on journeys to and from school. Cycle helmet legislation and other safe cycling promotions are not mutually exclusive, and there is a clear role for the simultaneous introduction of more primary prevention measures including cycle lanes, driver education and vehicle speed reduction initiatives. 

Further measures to improve cyclists' safety
The BMA believes that cycling has many advantages to the individual in terms of improved health and mobility, as well as to society via, for example, reduced air pollution and traffic congestion. Even in the current hostile traffic environment, the benefits gained from regular cycling are likely to outweigh the loss of life through accidents for regular cyclists. 

We need to reinforce the points made in our 1999 report, that action to reduce the high rate of fatal and serious accidents suffered by cyclists must include: 
•	the creation of a safer cycling environment 
•	reductions in vehicle speeds and traffic volume in urban areas 
•	the provision of cycling training for all children 
•	recognising road safety, including cycling proficiency education, as part of the curriculum for all school children. This should include basic cycle maintenance, and safety precautions (eg lights, reflective clothing), information on the health benefits of cycling, as well as encouraging cycle helmet use. 
•	Information on current cycle helmet standards and the level of protection they provide should be more easily accessible to consumers. 
•	Advertising Standards officials should ensure that the public are protected against misleading safety claims from manufacturers. 
•	Cycle manufacturers and retailers should consider supplying a free cycle helmet (or helmet voucher) with every bike sold. 
•	Helmet costs should be reduced substantially, eg through Government subsidy schemes and the reassessment of VAT on safety products on a European wide basis.
Summary of evidence 
•	The evidence from those countries where compulsory cycle helmet use has already been introduced is that such legislation has a beneficial effect on cycle-related deaths and head injuries. This strongly supports the case for introducing legislation in the UK. Such legislation should result in a reduction in the morbidity and mortality associated with cycling accidents. 
•	Recent evidence has indicated that the introduction of compulsory legislation does not have a significant negative effect on cycling levels. Such legislation in the UK should not discourage cyclists and lead to a more sedentary lifestyle with consequent health risks. 
Recommendations
In light of this evidence on 20 October 2004, the Board of the Directorate of Professional Activities of the BMA agreed that the BMA support the introduction of legislation making the wearing of cycle helmets compulsory for both children and adults.
Further, as stated in the 1999 report we strongly recommend that all cyclists wear proper fitting helmets which as a minimum should be certified to the EN 1078 standard, but preferably certified to the Snell B95 standard. It is also important that helmets are replaced after an accident.