Challenging a helmet fine through the courts

Abstract

The defence of necessity allows people to break a law to avoid even more dire consequences. Bicycle helmets increase the risk of accident and can cause brain injury. To avoid these dire consequences, cyclists can legally ignore the helmet law.

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A fine for not wearing a helmet in New South Wales (NSW), Australia, can be challenged in court. Sue Abbott successfully fought her helmet conviction in August 2010, arguing that wearing a helmet was more dangerous than not wearing one.

This is based on the defence of necessity, that states that people can break a law to avoid even more dire consequences.

This newspaper article describes this successful challenge to a helmet fine.

The test for the defence of necessity has 3 parts:

1.  You must have an honest belief that complying with the law puts you at increased risk of injury

For example:

Theses risks are backed by research, some mentioned here. Normally, you can’t quote research in a court case unless the author of the research is present. However, the defence of necessity merely requires that you hold a belief on reasonable grounds.

It may be worth mentioning the position of the District Court Judge Ellis who, after carefully examining the evidence, concluded that:

“Having read all the material, I think I would fall down on your side of the ledger …

I frankly don’t think there is anything advantageous and there may well be a disadvantage in situations to have a helmet  and it seems to me that it’s one of those areas where it ought to be a matter of choice.”

2. It was necessary to do the activity that led to the breach (ie., to cycle)

This is a personal thing, so you need to emphasize what is relevant to you. For example combining regular exercise with transport considering a busy work and family life is a necessity to stay in good health.

3.  You must show that no harm was caused by breaking the law.

No harm was caused from riding on that specific occasion. Cycling provides health benefits while reducing traffic congestion and pollution. Wearing a hat instead of a helmet reduces the risk of skin cancer.

More details from Sue Abbott court case can be found here.

 

Sue Abbott has successfully challenged several more helmet fines for herself and for her daughter.

Others have successfully challenged helmet fines. In May 2011, Dan successfully challenged a helmet fine in court. His defence can be found here, while a description of his court appearance is here. His defence ends with the following observation:

“Finally, I will leave it to your Honour to ponder the following absurdity. Riding a bicycle without a helmet is activity that delivers health benefits to the individual, reduces the healthcare tax burden on society, delivers economic benefits in terms of reduced road congestion, reduces the risks to other road users and benefits both the local and the wider environment. It is safe, has no appreciable negative consequences, and is considered entirely normal everywhere in the world where bicycle use is widespread. Yet this safe, fun, and beneficial activity is considered a criminal offence in New South Wales.”

Dan got more fines later. He fought four helmet fines in another court case in November 2011. The magistrate recognised the validity of his defence, including the risk of serious brain injury from wearing a helmet, and let him off with a token fine. Sue Abbott was there supporting him, describing the trial here. An extract from the verdict:
“[The magistrate] reviewed all the evidence presented, and basically accepted all of it as factually correct; he also made some comments about the bicycle helmet law not being ‘helpful’ …
It also highlighted the absurdity of the bicycle helmet law to the point where he was prepared to criticise it on the record.”
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