Hemlet Safety Study flawed - SMH

[jules21]

So why would this apply to cycling but not driving or walking?? What defines the base level of 'safe' living as opposed to 'elevated risk' living?

it's determined on a case-by-case basis. where there is a disproportionate risk associated with an activity and its mitigation is practicable, the case for regulatory intervention is stronger. there is absolutely a case for head protection in driving - there is a strong degree of associated regulation (new car design rules) - helmets aren't the most effective solution in that case. with walking, the risk is obviously much lower.

the state has three responsibilities in this context: to protect its citizens from harm, to minimise its cost exposure and not unnecessarily infringe on people's freedom rights. helmet laws tick the box in all 3 - except for those who unreasonably believe that being required to wear a helmet is somehow a gross imposition on their rights.

And pretty much implies that 90% of the Dutch do not take on personal responsibility.

i'm sure they'll forgive me. cycling in the netherlands does not equate to cycling on australian roads. the reality is, the risk here is higher.

[brentono]

You must always be-aware that the people pushing/promoting compulsory helmet laws,
more than likely have a vested interest. (follow the money trail)

DYOR- Good W.A. site, with a lot of good info.
http://www.cycle-helmets.com/index.html

Seems health has suffered (less children riding to school, along with women) since the introduction,
of compulsory helmet laws.

[Comedian]

You must always be-aware that the people pushing/promoting compulsory helmet laws,
more than likely have a vested interest. (follow the money trail)

DYOR- Good W.A. site, with a lot of good info.
http://www.cycle-helmets.com/index.html

Seems health has suffered (less children riding to school, along with women) since the introduction,
of compulsory helmet laws.

You heretic you! How dare you question the accepted norm with critical thinking

[il padrone]

[there is absolutely a case for head protection in driving

.....and walking, and stair-climbing, and night-club district strolling

[il padrone]

You must always be-aware that the people pushing/promoting compulsory helmet laws,
more than likely have a vested interest.

Royal Australasian College of Surgeons - not reknowned as bicycle enthusiasts or lobbyists.

[human909]

So why would this apply to cycling but not driving or walking?? What defines the base level of 'safe' living as opposed to 'elevated risk' living?

it's determined on a case-by-case basis.

So for every conceivable activity the government decides what is the acceptable level of risk and what is unacceptable? Where do pogo stick fit in? What about roller blades without wrist guards? When people get injured should hospitals examine the accident and decide on a "case-by-case" basis whether to treat the person or not the authority approves of said activity.

That is absurd. And certainly not aligned with libertarian views in the way you seem to be suggesting.

where there is a disproportionate risk associated with an activity and its mitigation is practicable

Cycling is not particularly risky and wearing a helmet is a long long way down on the list of choices a cyclist can make of reducing injury. Near the top is to ride slowly and to not ride on roads.

And pretty much implies that 90% of the Dutch do not take on personal responsibility.

i'm sure they'll forgive me. cycling in the netherlands does not equate to cycling on australian roads. the reality is, the risk here is higher.[/quote]
And the reason why the risk is higher here is because we haven't taken the better options of reducing risk for cyclists.

EDIT:
Sure I can accept the view that some people believe that compulsary helmets for cycling are a way to reduce injuries and protect citizens from harm. That is a argument does have some validity. However to suggest that cycling is a high risk activity or that not wearing a helmet is not taking responsibility for your own safety is simply a flawed argument. Recreation like skiing or mountain biking are both far more dangerous even with good protective gear yet we our public health system still supports them.

[jules21]

So for every conceivable activity the government decides what is the acceptable level of risk and what is unacceptable? Where do pogo stick fit in? What about roller blades without wrist guards?

due to its popularity, cycling is a significant contributor to injuries, far more than pogo sticks. this is what has brought it to the attention of the govt. if there were only 5 bikes in australia, i'm sure no one would care about helmet laws. it's not that hard to understand.

[hannos]

Cycling is not particularly risky and wearing a helmet is a long long way down on the list of choices a cyclist can make of reducing injury. Near the top is to ride slowly and to not ride on roads.

Where are we supposed to ride then as it's illegal to ride on footpaths...

[human909]

So for every conceivable activity the government decides what is the acceptable level of risk and what is unacceptable? Where do pogo stick fit in? What about roller blades without wrist guards?

due to its popularity, cycling is a significant contributor to injuries, far more than pogo sticks. this is what has brought it to the attention of the govt. if there were only 5 bikes in australia, i'm sure no one would care about helmet laws. it's not that hard to understand.

No its not what hard to understand. The rest of your argument is. As I said I'm not arguing against the reasons for compulsary helmet laws. I'm arguing against you bizarre notion of personal responsibility, cycling risk and public health.

Cycling is not particularly risky and wearing a helmet is a long long way down on the list of choices a cyclist can make of reducing injury. Near the top is to ride slowly and to not ride on roads.

Where are we supposed to ride then as it's illegal to ride on footpaths...

Maybe we shouldn't be riding at all if it is so risky. We aren't 'supposed' to ride anywhere, we choose to ride. My point is that as far as risk choices go choosing to wear a helmet is far down the list. Suggesting that it is needed to qualify for public health support for injuries is odd to say the least.

[brentono]

You must always be-aware that the people pushing/promoting compulsory helmet laws,
more than likely have a vested interest.

Royal Australasian College of Surgeons - not reknowned as bicycle enthusiasts or lobbyists.

It would be quite foreign to Doctors to look for kickbacks,
just ask the Pharmaceutical conglomerates.
Thanks il padrone.

Not that I want to even be in this debate, I know where I stand.
(in a bike/car confrontation, the car is the BIG problem, 'scuse the pun.)

For the Group, here...
With research you will find a certain group of Doctors "forced" legislation with little actual
data, regarding cycling and helmets (there was no data or little) most of it came from
data regarding motorcycle helmets... quite a different animal.

As seen in the W.A. data (limited to one years research) most injuries came up as
upper-body, usually covering, collarbone, shoulder injury or broken arms.
Maybe we need "league style" shoulder pads and arm braces, more than helmets.
Just a thought, DYOR...

[high_tea]

This is in line with the other definitions of strict liability I've seen("no mens rea", etc). If you have a different definition in mind, fair enough. I'd be interested to see it.

i caveated my view above with the fact i'm not a lawyer, so i'll restate that here, but i understood that under strict liability, while a lack of mens rea is not a defence, due diligence is. for example, if a motorist is driving carefully along a road and a cyclist sprints out into traffic from behind parked cars and is struck, the motorist could presumably argue that they did everything reasonable to avoid a collision, but could not account for the gross recklessness of the cyclist. under absolute liability, the motorist would have no defence available to them. but under strict liability, i understand that the court may accept due diligence as a defence.

Righto. Any decided cases you can point to? That's not the sense it's used in, oh, anywhere that I can find. I mean, the lack of defences for absolute liability, sure, but the due diligence thing makes no sense to me.

[mikesbytes]

http://www.cycle-helmets.com/index.html

Interesting, this page like many others shows the drop in figures when MHL came in in 92. In this example there was a drop of 446 trips in the corresponding 9 months. However 10 years later (2002) the numbers had gone up a 1000 and then the next year there was a drop of 394 riders for 2003.

[brentono]

You must always be-aware that the people pushing/promoting compulsory helmet laws,
more than likely have a vested interest. (follow the money trail)

DYOR- Good W.A. site, with a lot of good info.
http://www.cycle-helmets.com/index.html

Seems health has suffered (less children riding to school, along with women) since the introduction,
of compulsory helmet laws.

You heretic you! How dare you question the accepted norm with critical thinking

Heresy, in the sense of falling away from the Faith, became possible
only after the Faith had been promulgated by Compulsory Helmet Law.
(Norm: "Life Be In It")

[il padrone]

(in a bike/car confrontation, the car is the BIG problem, 'scuse the pun.)

However the helmet campaign that led to compulsion was not even about CARS. The cocncerns were about the kiddies and newbies, falling off their bikes on bike paths and sconing themselves, leading to brain injuries which aforementioned surgeons saw and blamed on the lack of 'protection' (maybe they took their treatment strategies from the AIDS campaigns).

Bicycle helmets have minimal role to play in any car/bike collision. They are designed to prevent brain injury in a ~2m vertical fall onto a hard surface.

[jules21]

Righto. Any decided cases you can point to? That's not the sense it's used in, oh, anywhere that I can find. I mean, the lack of defences for absolute liability, sure, but the due diligence thing makes no sense to me.

well it makes a lot of sense to others - it's used in countries including NZ and canada, but not australia. a good discussion here. australia has a more restrictive defence, based on reasonable mistake - which excludes ignorance as a defence. in terms of my original point about its application to motor vehicle/cyclist collisions, it remains apparent to me that reasonable mistake may be an effective defence against strict liability where the cyclist has been reckless. my point was - having strict liability for motorists in a collision with cyclists doesn't mean cyclists can do whatever they like and escape liability for a resulting collision.

Bicycle helmets have minimal role to play in any car/bike collision. They are designed to prevent brain injury in a ~2m vertical fall onto a hard surface.

i doubt i'd be here typing this if it weren't for my mum making me wear a helmet when i was a kid, and got hit by a car. it doesn't make sense to say they're not designed for car collisions - they increase the severity threshold at which serious injury results. if it was my skull hitting the roof of that car, it would likely have been more than the hairline fracture that resulted.

[martinjs]

I get a good laugh out of the stats some use to prove a point. Not referring to any particular post but a section out of one of the Books in the Hitchhikers Guide to the Galaxy demonstrates where I'm coming from.

Ok it's fictional but the point is correct, they state that study's prove the population of the Universe is in fact Zero and all the people you meet on your travels are a figment of a deranged mind.

Where do they get there figures? They take the population of the universe and devide it by the number of planets in the universe and get a figure like 0.00000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000
000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000
000000000000000000000000000000000000000000000000000000000000000000000000145566558555589666666
or such like which is so small it's rounded down to zero.

Just crazy really but I have seen similar figures (but not that many zeros) used to show how safe cycling is.

Go figure.

Martin

[brentono]

Martin,
I am with you, and as I have ofter stated, statistics are often juggled to suit the platform.
(we get the message, better fix that number-it's x-ing the site format, it's very small,
we understand, a bit like Contador's Clenbuterol reading. )

But here with limited studies, many conclusions were drawn, and legislation put in place.
And subsequent statistics, since the introduction of hemet law, and not conclusive.
(End of Helmet rant)

My small dig, above...
"(in a bike/car confrontation, the car is the BIG problem, 'scuse the pun.)"
Came, after watching the amusing 1m advert on TV from the AG Foundation.
Near the end, they equate, that both parties are equally soleful after a
bike/car confrontation... yes, cyclist possibly dead or badly injured, and
car driver wondering if he did wrong, will insurance cover it, will they get
a smack on the wrist.

Strict Liability, the only way to even up the playing field, IMO

[high_tea]

Righto. Any decided cases you can point to? That's not the sense it's used in, oh, anywhere that I can find. I mean, the lack of defences for absolute liability, sure, but the due diligence thing makes no sense to me.

well it makes a lot of sense to others - it's used in countries including NZ and canada, but not australia. a good discussion here. australia has a more restrictive defence, based on reasonable mistake - which excludes ignorance as a defence.

Hang about, you're talking about due diligence in the context of mistake of fact? That wasn't at all clear.

in terms of my original point about its application to motor vehicle/cyclist collisions, it remains apparent to me that reasonable mistake may be an effective defence against strict liability where the cyclist has been reckless. my point was - having strict liability for motorists in a collision with cyclists doesn't mean cyclists can do whatever they like and escape liability for a resulting collision.

What would the motorist be mistaken about? How would it get them anywhere, whether due diligence is available or not? What situation could they reasonably believe existed, such that they wouldn't have been comitting an offence?

We're talking about helmets, right? Well, what kind of driving is only dangerous when unhelemeted cyclists are involved? Honestly, I've got nothing.

Civilly, that's a different matter. Civilly, I agree 100% - contributory negligence would be arguable. I don't know of any cases, but it seems arguable.

[jules21]

Hang about, you're talking about due diligence in the context of mistake of fact? That wasn't at all clear.

i can't be any clearer about this - i'm talking about these things because i found them in that document i linked. i hadn't even read it when i wrote my earlier posts.

What would the motorist be mistaken about? How would it get them anywhere, whether due diligence is available or not? What situation could they reasonably believe existed, such that they wouldn't have been comitting an offence?

the explanation of absolute liability on p.8 of the document i linked explains mistake of fact - if someone is caught with drugs in their luggage, a reasonable belief that their luggage did not contain drugs (e.g. the corby defence - that they were planted) is a defence of mistake of fact, under strict liability.

under strict liability for motorists, their duty is to avoid colliding with cyclists. i would suggest that similarly, a reasonable belief by a motorist that they had taken adequate steps to uphold that duty would also be a defence. presumably, the court would decide whether that belief was reasonable, or not - based on evidence of their driving and that of the cyclist. but the point is, the onus is on the driver to convince the court of their innocence, not on the prosecution to prove guilt (that's the reversal i referred to).

We're talking about helmets, right? Well, what kind of driving is only dangerous when unhelemeted cyclists are involved? Honestly, I've got nothing.

no! we were originally, but then we moved on to strict liability in general. i was clear in an earlier post that helmet wearing should not affect blame for causing a collision - i suggested it should (not does, necessarily) mitigate liability for the consequences.

[high_tea]

Hang about, you're talking about due diligence in the context of mistake of fact? That wasn't at all clear.

i can't be any clearer about this - i'm talking about these things because i found them in that document i linked. i hadn't even read it when i wrote my earlier posts.

What would the motorist be mistaken about? How would it get them anywhere, whether due diligence is available or not? What situation could they reasonably believe existed, such that they wouldn't have been comitting an offence?

the explanation of absolute liability on p.8 of the document i linked explains mistake of fact - if someone is caught with drugs in their luggage, a reasonable belief that their luggage did not contain drugs (e.g. the corby defence - that they were planted) is a defence of mistake of fact, under strict liability.

Mistake of fact would be if she thought it was oregano or something. In the right jurisdiction it would presumably be that she was ignorant of the drugs being there, despite due diligence. The point is that if she was right, she wouldn't have done anything that constituted an offence. That's mistake of fact.

under strict liability for motorists, their duty is to avoid colliding with cyclists. i would suggest that similarly, a reasonable belief by a motorist that they had taken adequate steps to uphold that duty would also be a defence.

No. They would not be mistaken about any elements of the offence. If they honestly and reasonably believed it was a kangaroo, not a cyclist, that would be a defence. If the offence is "unlawfully colliding with a cyclist", they would still have comitted an offence, even if they were right about taking adequate steps to uphold that duty. Why? because fault doesn't matter for offences of strict liability. If the offence is "negligently colliding with a cyclist", okay, but that's not an offence of strict liability.

presumably, the court would decide whether that belief was reasonable, or not - based on evidence of their driving and that of the cyclist. but the point is, the onus is on the driver to convince the court of their innocence, not on the prosecution to prove guilt (that's the reversal i referred to).

Neither that paper nor the Commonwealth Criminal Code says anything about reversing the onus. Fault just doesn't matter for offences of strict liability.

There are offences where the onus is reversed in respect of certain elements - drug posession in Queensland(s9 of the Drugs Misuse Act 1986(Qld)) is one example of this. Now, the offence has no fault elements - liability is strict. Over and above that, s129(1)(c) reverses the onus of proof with respect to posession under certain circumstances. Nothing to do with helmets, just an example of strict liability and reversed onus of proof being two completely different things.

Note that the onus is only reversed with respect to posession. The Crown is still required to make out the other elements; there is still a presumption of innocence.

We're talking about helmets, right? Well, what kind of driving is only dangerous when unhelemeted cyclists are involved? Honestly, I've got nothing.

no! we were originally, but then we moved on to strict liability in general. i was clear in an earlier post that helmet wearing should not affect blame for causing a collision - i suggested it should (not does, necessarily) mitigate liability for the consequences.

You mean reduce the sentence (criminally) or payout (civilly?). Sure, I don't see a drama with that.

EDIT: fix tag

[jules21]

No. They would not be mistaken about any elements of the offence. If they honestly and reasonably believed it was a kangaroo, not a cyclist, that would be a defence. If the offence is "unlawfully colliding with a cyclist", they would still have comitted an offence, even if they were right about taking adequate steps to uphold that duty. Why? because fault doesn't matter for offences of strict liability. If the offence is "negligently colliding with a cyclist", okay, but that's not an offence of strict liability.

no, fault clearly does matter. if you take the cited example of drug trafficking, an offence has been committed by virtue of the simple passage of drugs across a border - if fault didn't matter, then the defendant could not argue 'mistake of fact'. the document i linked clearly states that they can - it's not their fault if someone planted the drugs and they reasonably believed that their luggage did not contain contraband.

where you're mistaken in traffic law is around the offence - it is not "unlawfully colliding with a cyclist". the road rules outline duties and obligations on road users - it is unlawful to breach those duties and blame is apportioned for a collision to a party deemed to have been responsible for breaching them. the key measure is adherence to the road rules, which crucially include a provision for "careless driving" - this is a provision of great importance for cyclists, as it requires motorists to not only stick to the speed limits, etc., but also to take due care to protect other road users.

this is outlined here:

Strict liability places the onus of proof on the motorist, to show that they were taking account of the possibility of colliding with a pedestrian or cyclist and avoiding that possibility.

the "mistake of fact", a legal term, i would suggest refers to a reasonable mistake on the part of the defendant that they were fulfilling that duty. another example may be where a motorist is driving down the road in a careful manner and a cyclist falls from an overpass, onto the car roof. if the motorist can prove that he was adhering to the road rules and not driving carelessly (a defence with which you'd think he'd have a good chance), then there is no offence for which he can be held (strictly) liable.

this is well explained here, although it also clarifies that the danish system is for civil liability, while i'm/we're discussing criminal liability:

The classic example from liability courses is a car going the right way in a one way street, hitting a bicyclist going the wrong way. Because there is a requirement for liability insurance (da.: 'ansvarsforsikring') for automotive owners, the insurance companies will always draw upon that and thus making the automotive owner liable.

However the bicyclist may be deemed liable by the Danish legal system and the automotive driver be free of charges. In that case the automotive owners car insurance company may seek reimbursement (da.: regres) from the bicyclist.

edit: there is a really good description here:

A presumption of liability would normally work by shifting the burden of proof. So after a crash, a cyclist wouldn’t need to prove that the driver did something wrong; it would be for the driver to prove that he didn’t do anything wrong (or that the collision was caused by the cyclist doing something wrong).

[high_tea]

edit: there is a really good description here:

A presumption of liability would normally work by shifting the burden of proof. So after a crash, a cyclist wouldn’t need to prove that the driver did something wrong; it would be for the driver to prove that he didn’t do anything wrong (or that the collision was caused by the cyclist doing something wrong).

Yes, that document sums the issue up nicely. I'm referring to strict liability in the technical sense. If I substitute "presumed liability" for "strict liability", that pretty well clears it up for me.

As an aside, the defence of mistake of fact works differently for offences of strict liability under the Commonwealth Criminal Code. As I understand you, you're describing the non-strict liability flavour of the defence.

Anyway, this all seems to come down to a disagreement over the semantics of "strict liability". There's some interesting reading in some of the links you posted; thanks for that.

PS, the I made the offence of "unlawfully colliding with a cyclist" up. I should have made that clear; sorry for the confusion.

[jules21]

PS, the I made the offence of "unlawfully colliding with a cyclist" up. I should have made that clear; sorry for the confusion.

that's where i think we are talking about different things - i think you could have a strict liability offense for colliding with a cyclist, in which case, as i understand it, your argument makes more sense to me. but i think it's different if the strict liability applies to other offences, such as careless driving. in that case, i think that there would be more scope for motorists to defend themselves. but it's also hypothetical as there's no such rule, yet and presumably it could be crafted in an entirely different manner.

[Westgarth]

Here in Victoria we now have the wonderful Charter of Human RIghts. One of the few that actually means anything is that it is now a breach of the charter (and hence illegal) for a law to demand that a defendant prove themselves innocent. It has been used a couple of times now, most notably by an ex-solicitor who had been jailed because the law apparently required her to prove that her boyfriend's drugs which were at her address didn't belong to her (and she was unable to do).

So if you were to change the criminal law to say that a motorist who collides with a cyclist must prove that he or she was in the right, as opposed to the prosecution having to prove beyond all reasonable doubt that he or she was breaking the law, it would seem to be in breach of the charter.

[human909]

So if you were to change the criminal law to say that a motorist who collides with a cyclist must prove that he or she was in the right, as opposed to the prosecution having to prove beyond all reasonable doubt that he or she was breaking the law, it would seem to be in breach of the charter.

The fact that an accident occurred is pretty strong evidence that the motorist failed to avoid a collision with the cyclist.

Furthermore there is no such thing as being 'in the right'. You have an obligation to avoid collisions.