The cycle helmets debate – legal aspects
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.
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 negligence – where the person who wasn’t wearing a helmet is injured in an accident, and sues the person who caused the accident.
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  EWHC 53 at §§43-45; Phethean-Hubble v Coles  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  CLY 4466; Swinton v Annabel’s (Berkeley Square) Ltd  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, Griffiths 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.
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!
Photo by joshgray from here: http://www.flickr.com/photos/josh_gray/1098051448/in/photostream/
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