With yet another attempt in April 2004 to pass a Bill making cycle helmets compulsory for children, an increasingly polarised public debate continues on this issue. Should there be compulsory safeguarding against a potential hazard, or will a mandatory insistence on helmets reduce cycling levels among children, with a longterm risk to their health? So far, the British Parliament has not yet joined the rush of Australian, Canadian and American legislatures in making cycle helmets compulsory1, but in the meantime the civil courts in personal injury cases have to consider the causal dimensions of whether cycle helmets should be worn by ‘reasonably prudent cyclists’ to prevent or reduce injury. Judges in tort cases do not resolve matters in a policy vacuum. They too are looking carefully at the scientific analysis, and whether in particular circumstances an award of damages may have to be reduced for the cyclist’s own ‘contribution’ to their injuries.

The sponsor of the 2004 Parliamentary Bill, Eric Martlew MP, claimed that there is scientific evidence that, in the event of a fall, helmets substantially reduce injury; and that 80 per cent of the public were on his side2: ‘It has been proved without any shadow of a doubt that cycle helmets reduce brain injuries and save lives’3. In particular he noted that child cyclists are nearly four times more at risk on the roads than adult cyclists, with annual statistics for 2002 showing that, of 133 cyclist deaths, 28 involved children4. Currently it would seem that about 22 per cent of all of cyclists on major built-up roads wear helmets, although 94 per cent of child cyclists currently do not wear helmets on minor roads and public open spaces5. Greater London appears to have one of the highest cycle helmet wearing rates in Great Britain, and from almost zero in the mid 1980s, helmet use in the capital on the roads rose to around 40 per cent by 1996, and was 50 per cent by 2000. The latest Bill has been sponsored by the Bicycle Helmet Initiative Trust, set up by Angela Lee, a nurse who specialises in paediatrics. Her claim is that she has seen ‘time and time again the absolute devastation caused [to] children with head injuries who have had accidents on their bikes when they haven’t been wearing a helmet.’6 The Formula One motor racing driver David Coulthard, who is the patron of the Bicycle Helmet Initiative Trust, indicated in 2002 that his eventual aim is to make all cyclists wear helmets7.

In the opposing camp are the British Medical Association and the Royal College of General Practitioners, stating that the health benefits of cycling far outweigh any risks involved, as helmet compulsion reduces cycling, and therefore leads to obesity and related illnesses; the car-dependent sedentary lifestyle would appear to be a far greater threat to children8. All the major cycling organisations have also lined up with their own scientific analysis, suggesting that ‘people who cycle regularly have lower incidences of cardiovascular disease, stroke, diabetes, cancer, obesity and mental health problems’9. Some of the pro-helmet lobby statistics have also been heavily criticised as sensationalist, particularly the claims in an Early Day Motion in 2002 proposed by Alan Meale MP that ‘approximately 28,000 children under the age of 16 years receive a serious head injury as a result of a cycling accident …[and] that by simply wearing a bicycle helmet 85 per cent of such head injuries could be prevented’10. The figure of 28,000 ‘serious’ head injuries is actually for all head injuries from any source, the vast majority resulting from trips and falls, whereas the correct figure for cycling injuries is 1,200, and of these the vast majority do not require a hospital stay and have no lasting consequences. Similarly the statistic that cycle helmets prevent 85 per cent of head injuries has been shown to be a large exaggeration and has been withdrawn; a recalculation from the same data showed the protective benefits of helmets to be so low as to be statistically insignificant11. However, with a previous attempt by Jean Corston MP to introduce a Ten Minute Rule Bill in 1999, half a dozen Early Day Motions on the topic in recent years, and the Horses (Protective Headgear for Young Riders) Act 1990 as a legislative model, this looks likely to be a long-running debate in Parliament12.

However, the proposed legislation is in the realm of criminal liability for the parent. What about the implications in the parallel universe of tortious liability? As with car safety belts and motorcycle helmets legislation from a previous era, there is inevitably a close relationship between possible compulsion in a criminal statute and ongoing civil litigation for personal injury on the roads. Indeed, in both the earlier instances the civil courts did not wait for legislative regulation on the compulsory use of safety belts or motorcycle helmets, but commenced to deduct damages for contributory negligence when they determined the evidence was compelling. What therefore should be the response of the civil courts when faced with a tort claim from an injured cyclist, when the defendant argues that they assumed a risk in not wearing a cycle helmet? The Court of Appeal recently came very close to a pronouncement on this question in 2003 in the case of Drinkall v Whitwood13, now on appeal. That case involved a preliminary issue on a technical matter of procedure, which was the withdrawal of the defendants from an agreed settlement. But this withdrawal was on the basis that the defendants wished to argue for a higher percentage of contributory negligence about the non-use of a cycle helmet. A 20 per cent reduction had already been agreed as a deduction, and the insurers were now arguing for 25 per cent. Indeed, that ‘quarter deduction’ is now becoming a standard response in cycling injury cases when a helmet has not been worn by an injured cyclist, so it can only be a matter of time before the issue requires full judicial resolution. Lessons should therefore be learned in advance from a proper analysis of the precedents on safety belts and motorcycle helmets, as an automatic 25 per cent reduction is not what the landmark decision of Froom v Butcher14 determined in 1975. However, it is also very important to point out that when the Court of Appeal reduced damages in that case for a driver not wearing a seat belt and being injured as a result, this was well before 1983 when Parliament legislated to make front seat belts compulsory15. In addition, it is vital for the courts to consider dispassionately the conflicting arguments of cycle helmet usage, separating out the realities from the mythologies. Our knowledge of the full context of road safety has moved on apace in recent years, and the full context of hazard, risk, and social as well as financial cost is important to bear in mind.

1 States, provinces and localities began adopting laws from about 1987. There is a chart on the USA laws at http://www.bhsi.org/mandator.htm Australia was the first country in the world to impose uniform national mandatory bicycle helmet legislation, beginning in 1990.

2 The Newcastle Journal (1 April 2004). Repeated in the Parliamentary debate on 2nd Reading at Hansard House of Commons (23 April 2004), when the Bill failed to attract the necessary 40 votes to avoid a technical closure on excluding ‘strangers’.

3 The Times (23 April 2004).

4 Figures have been falling. In 1995 fatalities numbered 213. Cycle use in the UK has increased by 10 per cent since 1993, but the rate of reported pedal casualties has decreased by more than 34 per cent over the same period. In London, cycle use has risen by 30 per cent since the introduction of the congestion charge in 2003, while casualties have fallen by 17 per cent; Simon O’Hagan, ‘Off with their helmets’, Independent on Sunday (25 January 2004).

5 Surveys showed 16 per cent in 1994, 17.6 per cent in 1996, and 21.8 per cent in 1999. The increase has been in adult helmet use, with little or no change in wearing rates among children; Elizabeth Towner, Therese Dowswell, Matthew Burkes, Heather Dickinson, John Towner, Michael Hayes, Bicycle helmets: a review of effectiveness (No. 30, 2002). See also the RoSPA website at http://www.rospa.com/cms/STORE/Road%20Safety/cycling_files/cycling.htm

6 Yorkshire Post (23 March 2004). Ms Lee claims that ‘research …shows [helmets] reduce head injuries by 88 per cent – that is a definite figure from research which has never been discredited’; see her article about setting up the Trust in The Guardian (1 April 1998).

7 ‘Helmet-law MP accuses ACT of being “cycling fascists”‘; Association of Cycle Traders http://www.bikebiz.co.uk/daily-news/article (5 April 2004). Eric Martlew also allegedly accused an opponent of helmet compulsion for children as ‘more interested in selling bikes than saving lives’; The Guardian (2 April 2004).

8 The comparable figure to the 133 cyclist deaths in 2002 is 58,000 deaths of coronary heart disease attributable to inactivity. See for some of the early debate ‘Cycle helmets and the law’, BMJ editorial (11 June 1994), and the letter ‘Cycle helmets deter people from cycling’, BMJ (20 August 1994).

9 Briefing by the Cyclists Touring Club (23 December 2003), http://www.ctc.org.uk/working/HELMETS.aspx

10 This EDM in 2002 also ‘commends the excellent campaign of the Bicycle Helmet Initiative Trust to get Parliament to introduce legislation to enforce the wearing of helmets by all bicyclists in the UK’; EDM 1983, entitled Bicycle Helmet Initiative Trust, proposed by Alan Meale MP.

11 The original ‘85 per cent’ claim was in R.S.Thompson, F.P.Rivara and D.C.Thompson, New England Journal of Medicine 1989, vol 320 No 21 p1361-7, but see a critique at http://www.cyclehelmets.org/papers which has a full analysis of all the arguments against compulsory helmet use.

12 See for an excellent review of the issues, House of Commons Research Paper 04/29 (31 March 2004).

13 The Times (13 November 2003), [2003] EWCA Civ 1547.

14 Froom and others v Butcher [1976] QB 286, [1975] 3 All ER 520, [1975] 3 WLR 379, [1975] 2 Lloyd’s Rep 478, [1975] RTR 518.

15 Motor Vehicles (Wearing of Seat Belts) Regulations 1982 (S.I. 1982 No. 1203), in force on 31 January 1983. See now section 14 Road Traffic Act 1988, and The Motor Vehicles (Wearing of Seat Belts) Regulations 1993 (S.I 1993 No. 176). Note also the seat belt directive, 16 December 1991 (No, 91/671/EEC).