Hemlet Safety Study flawed - SMH

[rooster]

The question is not whether helmets reduce injury rates or not - it is clear that they do.

The issue is whether the societal costs of legal compulsion - reduced participation and exercise rates, poorer health due to inactivity, increased pollution due to greater congestion from increased motor vehicle use in our cities, consequent impact on health care costs and loss of quality of life - are greater. I believe they are.

Sorry to be jumping in at this late stage but there is another aspect to this argument which I think weakens the libertarian view that it should be a matter of free choice etc - this is, if we accept that helmets reduce risk of injury, then society inevitably bears some of the costs of non-helmet use e.g costs of health care, rehabilitation, disability payments. The issue seems analogous to that of a candidate for a liver transplant being given the choice to abuse alcohol. In both cases individuals are potentially exercising a free choice that ultimately has implications for society's scarce health resources (and thus denying others of these resources). Perhaps therefore an argument for making them compulsory is not specifically to protect people from themselves but simply because the rest of us don't want to pay for people's bad decisions.

[Comedian]

The question is not whether helmets reduce injury rates or not - it is clear that they do.

The issue is whether the societal costs of legal compulsion - reduced participation and exercise rates, poorer health due to inactivity, increased pollution due to greater congestion from increased motor vehicle use in our cities, consequent impact on health care costs and loss of quality of life - are greater. I believe they are.

Sorry to be jumping in at this late stage but there is another aspect to this argument which I think weakens the libertarian view that it should be a matter of free choice etc - this is, if we accept that helmets reduce risk of injury, then society inevitably bears some of the costs of non-helmet use e.g costs of health care, rehabilitation, disability payments. The issue seems analogous to that of a candidate for a liver transplant being given the choice to abuse alcohol. In both cases individuals are potentially exercising a free choice that ultimately has implications for society's scarce health resources (and thus denying others of these resources). Perhaps therefore an argument for making them compulsory is not specifically to protect people from themselves but simply because the rest of us don't want to pay for people's bad decisions.

Yes but by stopping people cycling (and helmets definitely do), then a reduced level of fitness in the community leads to more lifestyle diseases which indirectly costs the community in a big way.

[jules21]

Yes but by stopping people cycling (and helmets definitely do), then a reduced level of fitness in the community leads to more lifestyle diseases which indirectly costs the community in a big way.

not necessarily. as rooster pointed out, the argument for free choice on helmet wearing is often based on libertarian principles - personal choice and responsibility. the same principle can be applied to funding health care for lifestyle diseases - i.e. not using public funds.

this is the problem with arguments against helmet laws, proponents want the responsibility to choose whether to wear a helmet, but don't want the responsibility for the consequences. that's a bit rich, in my view.

[Comedian]

Yes but by stopping people cycling (and helmets definitely do), then a reduced level of fitness in the community leads to more lifestyle diseases which indirectly costs the community in a big way.

not necessarily. as rooster pointed out, the argument for free choice on helmet wearing is often based on libertarian principles - personal choice and responsibility. the same principle can be applied to funding health care for lifestyle diseases - i.e. not using public funds.

this is the problem with arguments against helmet laws, proponents want the responsibility to choose whether to wear a helmet, but don't want the responsibility for the consequences. that's a bit rich, in my view.

Well where do you stop? Why draw the responsibility line at helmets? If car hits me and I'm not wearing a helmet does that make it my fault?

Statistically it would be safer for me to catch the bus to the city than ride. I could fall off, or god forbid be hit by a car. Then the hospital system may have to look after me.

That was exactly what i was doing. In ten years of bus riding I've never had so much as a scrape. I can be sure though that if I continued down that road the public would have to treat me for type 2 diabetes and heart disease just like my father and older brother.

Michael colville-Andersen said if you want to fill your hospitals with people put them all in cars. I think he's right too.

[jules21]

the point i'm making is simply that if we are to rely on the state for support, such as health care, then the state has a responsibility to minimise its corresponding liability. i agree entirely with you that part of that responsibility is to encourage public health, which logically would include supporting cycling. but there are options for how to do that, beyond allowing riders to not wear a helmet.

also, if you suffer a head injury in the manner you described, i think you've clearly got to share the blame with the car driver. in that circumstance, it was your decision not to wear a helmet that led (hypothetically) to a more severe head injury. you can't pin that on the driver.

[Comedian]

also, if you suffer a head injury in the manner you described, i think you've clearly got to share the blame with the car driver. in that circumstance, it was your decision not to wear a helmet that led (hypothetically) to a more severe head injury. you can't pin that on the driver.

Interestingly, in countries where cycling is widespread and very safe they put total absolute responsibility on the driver. That is exactly another reason why I'm anti mhl because it potentially gives drivers an out.

[jules21]

actually, i believe they only have strict liability, which is different to absolute liability. a lawyer would give a better explanation, but i understand strict liability to be a presumption of guilt on the part of a driver who collides with a cyclist. that presumption can be overturned by an effective legal defence. absolute liability does not permit a defence.

under strict liability, i imagine a driver could argue his responsibility should be reduced by a cyclist neglecting to protect himself with a helmet.

[il padrone]

under strict liability, i imagine a driver could argue his responsibility should be reduced by a cyclist neglecting to protect himself with a helmet.

Ummm.... not at all likely in the European use of this legal principle. A cyclist would have to do something very blatantly negligent - like cycling into a stationery car - for the onus to be dropped. Even where cyclists have not obeyed road rules, drivers are still expected to take action to avoid collision, and resulting death/injuries.



This excerpt is from a report to the UK All-Parliamentary Tour of Dutch cycling facilities

[Aushiker]

Ummm.... not at all likely in the European use of this legal principle. A cyclist would have to do something very blatantly negligent - like cycling into a stationery car - for the onus to be dropped. Even where cyclists have not obeyed road rules, drivers are still expected to take action to avoid collision, and resulting death/injuries.

Hi

Do you have any decent authoritative references to this? BTW Unless under the European Union laws are now the universal across all countries, then the concept of European use (read law) is not valid. There are at least two distinct legal systems in Europe ... the common law approach and the germanic approach, probably more.

As an aside it seems that cycling safety is not all it is cracked up to be in the Netherlands ...

Andrew

[jules21]

Ummm.... not at all likely in the European use of this legal principle. A cyclist would have to do something very blatantly negligent - like cycling into a stationery car - for the onus to be dropped. Even where cyclists have not obeyed road rules, drivers are still expected to take action to avoid collision, and resulting death/injuries.

we're not quite talking about the same thing here. i'm not suggesting wearing a helmet affects liability for causing a collision - it shouldn't - but it may (at least in my view, if not in law) affect liability for the resulting harm to the cyclist. of course, that may not apply in countries where helmet wearing is voluntary.

strict liability is a great idea - it reverses the current situation where drivers can get away with almost anything by merely casting doubt on the facts.

[twizzle]

My one and only comment on helmets - whiny d-heads who claim they won't ride a bicycle because of helmet laws would immediately think of another excuse if the helmet laws didn't exist. And anyone who thinks helmet laws are the only reason everyone isn't a cyclist need to have a good hard look at reality.

Yes - Australia is a nanny state, but that's only because there are so many people who need some guidelines to run their lives by. Not picking on Italians, but I have a friend living in Italy at the moment who tells some great stories about littering, driving with children standing on the front seat etc. etc., that would get you arrested in two seconds in Australia... but which are considered 'the norm' in Italy. It's a shame that they feel the need to legislate common sense in Australia - but have a look at Singapore if you want to see over-the-top legislation.

[il padrone]

Do you have any decent authoritative references to this?

John Pucher and Ralph Buehler to start with mention it on p. 28

Traffic Laws. As suggested by the previous section, traffic laws in the Netherlands,
Denmark, and Germany give special consideration to the especially vulnerable situation of
cyclists vis-à-vis motor vehicles (German Federal Ministry of Transport, 2006). Thus, they
generally require the motorist to make special efforts to anticipate potentially dangerous
situations and pro-actively avoid hitting cyclists. Moreover, motorists are generally assumed to
be legally responsible for most collisions with cyclists unless it can be proven that the cyclist
deliberately caused the crash. Having the right of way by law does not excuse motorists from
hitting cyclists, especially children and elderly cyclists.
For the most part, traffic laws intended to protect cyclists and pedestrians from motor
vehicles are far more strictly enforced by the police and courts in the Netherlands, Denmark, and
Germany than in the USA. Moreover, cyclists disobeying traffic laws are also more likely to be
ticketed than in the USA. In combination with comprehensive and rigorous training of motorists
and cyclists, the strict enforcement of traffic laws surely contributes to safer driving behavior by
motorists and safer cycling by cyclists.

Traffic laws
• Special legal protection for children and elderly cyclists
• Motorists assumed by law to be responsible for almost all crashes with cyclists
• Strict enforcement of cyclist rights by police and courts
Source: Information provided directly to authors by bicycling coordinators in the Netherlands, Denmark, and
Germany.

BTW Unless under the European Union laws are now the universal across all countries, then the concept of European use (read law) is not valid. There are at least two distinct legal systems in Europe ... the common law approach and the germanic approach, probably more.

It is my understanding that all except for UK, Ireland, Malta Cyprus and maybe Rumania and Portugal apply strict laibility. The rest of Europe (through EU rulings) are uniform in their legal application.

As an aside it seems that cycling safety is not all it is cracked up to be in the Netherlands ...

All a bit academic, and insignificant, in the bigger picture

When the rate of accidents per kilometre is looked at, the Netherlands still has an enviable record. Research by the UK's national cyclists' organisation CTC for their 'Safety in Numbers' campaign suggests that countries with the highest levels of cycling per person – Denmark, Sweden and the Netherlands – have the lowest level of deaths per kilometre.

The Netherlands has around eight deaths per 100 million km cycled and the UK has around 25 per 100m km. The typical Dutch person cycles 800km per year while in the UK that figure is less than 100km

[Aushiker]

Do you have any decent authoritative references to this?

John Pucher and Ralph Buehler to start with mention it on p. 28

Thanks for the link but I was hoping for something more authoritative.

It is my understanding that all except for UK, Ireland, Malta Cyprus and maybe Rumania and Portugal apply strict laibility. The rest of Europe (through EU rulings) are uniform in their legal application.

Looking at the European Commission website the laws appear to be national, not European wide. Further reading required when I have time but.

As an aside it seems that cycling safety is not all it is cracked up to be in the Netherlands ...

All a bit academic, and insignificant, in the bigger picture

Why am I not surprised by that response

Regards
Andrew

[jules21]

european law is complex. it appears to take different forms. i know for some, there is a requirement for EU member country parliaments to vote on it - but that includes the right to reject it. it's not generally automatically adopted in EU countries.

[high_tea]

Ummm.... not at all likely in the European use of this legal principle. A cyclist would have to do something very blatantly negligent - like cycling into a stationery car - for the onus to be dropped. Even where cyclists have not obeyed road rules, drivers are still expected to take action to avoid collision, and resulting death/injuries.

we're not quite talking about the same thing here. i'm not suggesting wearing a helmet affects liability for causing a collision - it shouldn't - but it may (at least in my view, if not in law) affect liability for the resulting harm to the cyclist. of course, that may not apply in countries where helmet wearing is voluntary.

strict liability is a great idea - it reverses the current situation where drivers can get away with almost anything by merely casting doubt on the facts.

Strict liability doesn't reverse anything, as I understand it. What it means is that the plaintiff doesn't have to show that the defendant is at fault.

So, and someone please jump in if I have it wrong, the present situation with negligence in Australia is that a plaintiff must show:
- duty
- breach
- damage
- causation

Introducing strict liability means there is no need to show fault. It's easier for a plaintiff to make their case out, but nothing is reversed. Showing fault on the plaintiff's part won't defeat their claim, except in extreme circumstances. MHLs, or the lack thereof, would have no bearing on this. Wearing a helmet or not would have no bearing on this. Come to that, helmets don't enter the picture even if you are talking about breach; the issue is the motorist's breach.

MHLs and/or helmet wearing might have some bearing on the size of the payout if the defendant successfully argued that not wearing one was contributory negligence. I remember reading about someone trying this (and failing? I think?) in the UK about 8 or 9 years ago. I haven't a clue whether civil-law jurisdictions have the concept of contributory negligence - can anyone comment? I also don't have a clue whether this has ever come up in Australia.

Bottom line is that, as far as I can see, MHLs aren't going to let drivers get off scot-free, strict liability or not. They will quite possibly affect the size of payouts, strict liability or not.

[Westgarth]

But there are two different sets of legal standards people are talking about. Liability meaning being liable to pay damages due to a tort action (i.e. being sued) and liability to be convicted of road traffic offences.

[jules21]

So, and someone please jump in if I have it wrong, the present situation with negligence in Australia is that a plaintiff must show:
- duty
- breach
- damage
- causation

in victoria at least, drivers should have 3rd party injury insurance (if their car is registered). you don't have to prove any liability to recover costs resulting from injuries you suffer - it's a no blame system. however, if you want to take civil action against the motorist (or their insurer, which is who would most commonly act for them in that circumstance) for losses not covered by injury insurance, having the driver fined or convicted for a breach of the road rules is advantageous - the insurer is more likely to concede liability. strict liability does reverse the onus on that - under current arrangements in australia, the police must be able to prove the driver was in the wrong. under strict liability, that is reversed. the whole arrangement over how compensation is paid may be different in countries like the netherlands, i'm unsure.

[high_tea]

So, and someone please jump in if I have it wrong, the present situation with negligence in Australia is that a plaintiff must show:
- duty
- breach
- damage
- causation

in victoria at least, drivers should have 3rd party injury insurance (if their car is registered). you don't have to prove any liability to recover costs resulting from injuries you suffer - it's a no blame system.

Presumably breaching MHLs wouldn't be an issue claiming under this system either?

however, if you want to take civil action against the motorist (or their insurer, which is who would most commonly act for them in that circumstance) for losses not covered by injury insurance, having the driver fined or convicted for a breach of the road rules is advantageous - the insurer is more likely to concede liability.

So you're talking about strict criminal liability? I understood the European system to be about civil liability.

strict liability does reverse the onus on that

It doesn't reverse the onus on anything. It removes the onus to demonstrate fault altogether. Here's the definition from the Commonwealth Criminal Code, for example:

6.1 Strict liability

(1) If a law that creates an offence provides that the offence is an offence of strict liability:

(a) there are no fault elements for any of the physical elements of the offence; and

(b) the defence of mistake of fact under section 9.2 is available.

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.

- under current arrangements in australia, the police must be able to prove the driver was in the wrong.

Not necessarily. Most offences under the Road Rules have no fault element. Liability is already strict!

under strict liability, that is reversed. the whole arrangement over how compensation is paid may be different in countries like the netherlands, i'm unsure.

EDIT: fix tag

[London Boy]

Ummm.... not at all likely in the European use of this legal principle. A cyclist would have to do something very blatantly negligent - like cycling into a stationery car - for the onus to be dropped. Even where cyclists have not obeyed road rules, drivers are still expected to take action to avoid collision, and resulting death/injuries.

Hi

Do you have any decent authoritative references to this? BTW Unless under the European Union laws are now the universal across all countries, then the concept of European use (read law) is not valid. There are at least two distinct legal systems in Europe ... the common law approach and the germanic approach, probably more.

Common law in England and Wales, civil law in most of Europe, in essence. The diference is largely in how laws are made outside of statute (e.g. common law accepts stare decisis - precedent to you and I - while e.g. the French civil law system follows 'le doctrine'). All countries have their own separate and distinct legal systems. European law, such as it is, is mostly based on regulations made by the various EU bodies (the Commission, the Council of Ministers, etc. all get a shot) according to the scope of the various treaties. Generally speaking however, laws are only valid if the individual parliaments enact them into each country's law. The EU has little power to enforce judgements, operating a bit like the UN in this.

As an aside it seems that cycling safety is not all it is cracked up to be in the Netherlands ...

Andrew

Even so, the Netherlands do ok compared with most. So does Italy - amazing how many people ride there, utility as much as for sport and leisure. No helmets.

The strict liability principle is not uniformly applied as far as I know. I'm now going to have to check, but I had believed that it is more a rebuttable presumption than strict liability. I will also have to check the position with regard to contributory negligence. I suspect it can be used to reduce the quantum of damages, like here, but I'm not sure. But I am interested enough to go find out...

[human909]

the point i'm making is simply that if we are to rely on the state for support, such as health care, then the state has a responsibility to minimise its corresponding liability.

Responsibility to minimise? You have to be kidding. Taking on risk is normally a cost benefit trade off.

also, if you suffer a head injury in the manner you described, i think you've clearly got to share the blame with the car driver. in that circumstance, it was your decision not to wear a helmet that led (hypothetically) to a more severe head injury. you can't pin that on the driver.

Blame the victim. Nice one Jules. So if a pedestrian gets hit by a car then they should share the blame because they weren't wearing a helmet!? You have some distorted logic here.

this is the problem with arguments against helmet laws, proponents want the responsibility to choose whether to wear a helmet, but don't want the responsibility for the consequences. that's a bit rich, in my view.

Responsibility of the consequences? Say What are you going on about? The person suffering the injury suffers the greatest loss here, they necessarily are the greatest affected by the consequences. This notion that society should only offer health care for people who live lives in a bubble wrap cocoon is bizarre. Should our hospitals not treat the hundreds affected by footballing injuries each year?

[il padrone]

This notion that society should only offer health care for people who live lives in a bubble wrap cocoon is bizarre.

C-i-g-a-r-e-t-t-e-s

M-a-c-c-a-s

[jules21]

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.

- under current arrangements in australia, the police must be able to prove the driver was in the wrong.

Not necessarily. Most offences under the Road Rules have no fault element. Liability is already strict!

strict liability means that in a prescribed incident or outcome, liability is apportioned to a prescribed party. you still need to prove that the incident occurred - in a collision, this is often straightforward, due to the abundance of evidence. the same goes for the road rules, while liability for a rule may be strict, a breach must still be proven for it to be imposed - which was my point.

[human909]

This notion that society should only offer health care for people who live lives in a bubble wrap cocoon is bizarre.

C-i-g-a-r-e-t-t-e-s

M-a-c-c-a-s

If it is just government expenditure on health care and social security that we care about the there has been studies showing cigarettes actually reduce government costs. Smokers generally are productive and good tax payers during their prime years of their life. However they die earlier and live fewer years in the 'unproductive' retirement years. There are significant savings reduced costs of care and the health costs of later in life diseases.

I'm not supporting cigarettes. I'm just saying that if government social security and health costs are you main concern then cigarettes aren't necessarily a negative thing.

[jules21]

Responsibility of the consequences? WT? are you going on about? The person suffering the injury suffers the greatest loss here, they necessarily are the greatest affected by the consequences. This notion that society should only offer health care for people who live lives in a bubble wrap cocoon is bizarre. Should our hospitals not treat the hundreds affected by footballing injuries each year?

you've missed the point. the libertarian view is that people take personal responsibility for their actions. for instance, if you choose to engage in an activity with an elevated risk, you should bear the responsibility for the consequences. you've assumed that means being left on the footpath outside of a hospital - it doesn't. it just means that individuals should not rely on the state to bear the cost of their choices (i.e. put more unsympathetically - leach off society).

take voluntary helmet use - an option would be to allow it, but to require cyclists to procure their own health insurance, rather than imposing the cost of any resulting injury on society. this is how conservative americans want to structure their health care system. i'm not saying it's the right idea, but it's unreasonable to cherry pick the nice bits (personal choice) and leave out the harder bits (personal responsibility) - which is what voluntary helmet law proponents want.

[human909]

you've missed the point. the libertarian view is that people take personal responsibility for their actions.

I think you have a incorrect understanding of the meaning of liberatarian

for instance, if you choose to engage in an activity with an elevated risk, you should bear the responsibility for the consequences. you've assumed that means being left on the footpath outside of a hospital - it doesn't. it just means that individuals should not rely on the state to bear the cost of their choices (i.e. put more unsympathetically - leach off society).

No it doesn't mean this. Libertarian is not a conflicting view to social welfare.

take voluntary helmet use - an option would be to allow it, but to require cyclists to procure their own health insurance, rather than imposing the cost of any resulting injury on society.

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?

this is how conservative americans want to structure their health care system. i'm not saying it's the right idea, but it's unreasonable to cherry pick the nice bits (personal choice) and leave out the harder bits (personal responsibility) - which is what voluntary helmet law proponents want.

You are continually perpetuating that choosing not to wear a helmet but accepting public health is somehow not being personally responsible. This is a bizarre notion. And pretty much implies that 90% of the Dutch do not take on personal responsibility.