Category Archives: Letters

Federal government abandons compulsory helmets policy

The Federal Government instigated in 1989 the nationwide policy of compulsion to wear a helmet, by offering ‘black spot’ funding for roads to the states and territories. All complied by 1992.

In 2009, CRAG made a comprehensive submission to the Prime Minister calling for the Government’s policy on helmets to be based on sound evidence of their efficacy. We (CRAG) said that the prime need was to protect the brain, the main site of fatal and disabling head injury, but that research had shown a potential for helmets to aggravate it.

We also pointed out that cycling declined sharply after helmets became compulsory. Benefits of the exercise for health were lost, but the risk of serious casualty, including fatal head injury, increased compared to other road users. As the policy had failed to serve its purpose, we called for corrective action.

The PM did not directly reply to our submission. Instead, the Federal Government quietly abandoned the policy later in 2009, stating in a letter to CRAG:

“Please note that helmet wearing policies are entirely determined at a state and territory government level and not linked to federally administered black spot funding”.

Despite being the instigator of this policy, the federal government has now disowned it, and refuses to take responsibility to fix it.

The federal government remains responsible for the mandatory standard for helmets. It is supposed to guarantee the efficacy and safety of helmets, but it does not. The standard does not contain a test for rotational acceleration, that would assess whether helmets can aggravate brain injury.

We in CRAG are working to press the Federal Government on the mandatory standard.

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Submission to Treasurer November 2010

10 November 2010

The Hon. Wayne Swan MP

Treasurer

Parliament House CANBERRA ACT 2600

Dear Mr Swan,

mandatory standard for BICYCLE HELMETS

I am writing to draw your attention to a deficiency in the mandatory standard for bicycle helmets and to a lack of due process in the review of it that the ACCC conducted last year. We request you to take remedial action.

The mandatory standard as prescribed under the Trade Practices Act 1974 serves to define the helmets which cyclists are compelled to wear under laws by which the states and territories give effect to the policy of compulsory wearing announced by the then Prime Minister on 5 December 1989.

As the motivation for wearing helmets and compelling it is fear of fatal and disabling injury to the head, the mandatory standard should ensure that helmets protect the brain and will not aggravate injury to it in any likely circumstances. An important cause of brain injury is rotation of the head as a result of oblique impulse, and experiments have shown that the addition of a helmet to a dummy head can increase it.

In submissions to the review of the mandatory standard, we argued the need for a test for rotation but, following the lead of Standards Australia, this is not required. Consequently, cyclists are compelled to wear helmets that might well increase their risk of death or disability, and they have never been warned. This outcome would appear to be attributable to shortcomings in the conduct of the review and departures from due process; see Appendix A to this letter.

 

I am hoping that you will be able to reply to this letter before the year is out.

 

Yours sincerely,

W.J. Curnow

President

 

 

ENCLOSURE A: Review of the mandatory standard

The ACCC reviewed the mandatory standard in 2009. It is now modelled on the 2008 version of Australian Standard AS/NZS 2063. Since 1998, we have been arguing that AS/NZS 2063 is inadequate in not testing helmets for capacity to reduce a major cause of brain injury, angular (rotational) acceleration, and that there is evidence that they can increase it. We made two submissions to the review. The ACCC summarises and responds to these in its Regulation Impact Statement (RIS), as follows:

“CRAG: Wearing of a bicycle helmet by a cyclist allegedly increases angular acceleration in the event of an accident, and that angular acceleration is a major cause of brain injury, in particular diffuse axonal injury.”

[In fact, our submissions detail experiments by scientists in Australia, Britain and the USA, which found that the addition of a helmet to a dummy head can increase angular acceleration. We note comments to similar effect by the NHMRC. By attributing to us the statement that wearing a helmet allegedly increases angular acceleration in the event of an accident the ACCC misrepresents what we say and its description of our submissions as mere allegation is gratuitous denigration.]

“ACCC response: Brain injuries, as well as facial, head and fatal injuries resulting from bicycle accidents are of concern to the ACCC. The main purpose of the Standard is to set minimum design, construction, performance and marking requirements as are reasonably necessary to prevent or reduce the risk of injury as a result of bicycle related incidents.

“As highlighted in the RIS, there is evidence that cyclists are subject to a greater risk of serious head injury if they are involved in an accident and are not wearing a helmet that meets relevant safety standards. Helmets offer protection to the head and brain reducing the risk of fatal injuries.

“In the absence of any standards that test for angular acceleration, the ACCC views that referencing the AS/NZS 2063:2008 in the new Standard (option 2) is necessary to ensure that helmets supplied in Australia market comply with minimum safety standards.”

[Being dissatisfied with this response, we made a FOI request for relevant documents. The documents received are referred to here as D1, D2 … . They indicate  that the review gave most weight to the interests of the helmets industry and Standards Australia and neglected the important problem of whether helmets do protect cyclists against fatal and debilitating brain injury. The RIS simply cites a conclusion of ATSB report CR 195, that helmets protect the head and brain reducing the risk of fatal injuries – as if it solves the problem. But that conclusion and the main studies supporting it, as they relate to the brain, have been rebutted in the scientific literature.[1] As ATSB declined to challenge the rebuttal, copies of correspondence of 14.2.07 and 5.4.07, attached as 1 and 2, the conclusion stands discredited. Further, as we advised the ACCC, the experiments mentioned above show that a helmet can increase rotation, and hence the risk of brain injury.

[The RIS on p.4 infers from current increased cycling, high rates of helmet use and compliance with AS/NZS 2063: 1996, combined with decreased head injury deaths and serious injuries, that bicycle helmet regulations are effective. This is a baseless inference: no numbers or time periods are stated and no sources of data are cited.]

[D19, an internal ACCC discussion paper that canvasses all issues applicable to the drafting of the RIS, shows that the review did not give due attention to the function of the mandatory standard of providing necessary support for compulsory wearing. It recommends, in its paragraph 88:

In the absence of any standards that test for angular acceleration, referencing AS/NZS 2063 in the new mandatory standard was deemed necessary to ensure that helmets supplied to the Australian market comply with minimum safety standards.
[Paragraph 89 states reasons for the recommendation; these include:

(i) “The main purpose of the consumer product safety standard is to set minimum

… requirements as are reasonably necessary (not beyond reasonable doubt as
suggested earlier by CRAG) to prevent or reduce the risk of injury … . ”
It notes that the term ‘are reasonably necessary’ appears in the Act.

[CRAG acknowledges that compliance with the Act is necessary, but it is not sufficient; more important is compliance with a recommendation by the Productivity Commission, in November 2006, that all government bodies should ensure that a mandatory standard is the minimum necessary to achieve the policy objective. Here it must assure that compulsorily worn helmets protect the brain and will not harm it. Anything less would compel cyclists to wear helmets which might not protect but increase the risk of severe injury to the brain. That such assurance cannot be given is clear from the ACCC’s reason (iii), stated in abridged form here, which acknowledges serious doubts:

(iii) …

(a) lack of precise medical data on the protection required; and the perplexing

rotational component of brain injury and its relationship to helmet design;

(b) there is no standard that tests for angular acceleration;

(c) lack of research in testing of helmets for rotational injury performance.

[On present evidence, both failure to protect the brain and increased harm are likely. Also, the RIS itself notes that “an absence of sufficient qualitative injury data continues to hinder any research that might strongly link increased head protection through the proper use of bicycle helmets with high rates of compliance with AS/NZS 2063 to trends in reduced head injuries and head injury deaths in Australian cyclists. This makes it difficult to measure the effectiveness of the Standard”. Yet paragraph 89 concludes: “In the meantime, however, there appears to be sufficient evidence (ATSB commissioned report) that helmets complying with the mandatory standard protect against head, brain, facial and fatal injuries.” The published rebuttal of the report and its authors’ failure to reply to it are not even mentioned!]

Lack of due process

Our submission to the review of 17 May 2007 suggested that it should be conducted in a fully open manner, including public hearings. We offered to provide further information or explanation and requested opportunity to consider any comment on our submission that the ACCC received from external persons. Our offer was not taken up, but the ACCC obtained comments on our submission from external persons without giving us an opportunity to consider them.

With letters of 5 May 2008, the ACCC sent copies of our supplementary submission to two research bodies, CARRS-Q and MUARC, requesting quotations for a “technical evaluation of CRAG’s claim that the addition of a helmet to the head can increase angular acceleration, a major cause of brain injury, in particular diffuse axonal injury” (D10,11). The ACCC did not consult us. Its use of the word ‘claim’ denigrates our submission, as do the letters’ background points 9 and 11. D15 contains a comment from MUARC. It asserts that CRAG misinterpreted results and details of studies, but the only example given is the citing of ‘bike helmet’ instead of ‘Bike helmet TM’ in our supplementary submission. The example is trivial and misses the point of the study we cited, that it provides evidence that the mass which a helmet adds to the head can increase rotation. This effect is explained in the extract in D1 from the NHMRC’s 1994 report Football injuries of the head and neck. The particular use made of the helmet, whether for football or for cycling, is not to the point. Also, we wonder whether the claimed misinterpretation is like a so-called misconception which Cummings et al. raised against me and which I refuted publicly.[2] In any case, this external comment was input to the review of the mandatory standard and the ACCC allowed it to go unchallenged.

D12 indicates that the ACCC also invited VicRoads to comment in relation to our submission. In its e-mail message of 8.5.08 to the ACCC, the “response to the group you referred to” is identical with the text of VicRoads’ letter of 23.4.08 to us, copy attached as 3. That letter responds to our request to VicRoads for details of studies supporting its published comment upon my article in Health Promotion Journal of Australia. The comment reads: “The use of bicycle helmets saves lives and lowers the severity of injuries as well as prevents them”. Correspondence with VicRoads of 8.5.08 and 5.6.08, copies attached as 4 and 5

, shows that it could not support its comment. But the ACCC gave us no opportunity to point this out.

D19 contrasts the performance required according to the ACCC with that suggested in submissions by CRAG. Paragraph 6 states that the purpose of the mandatory standard is to specify the minimum performance requirements for bicycle helmets so as to mitigate the adverse effects of a blow to the head. Paragraph 84 denigrates our argument that the standard should guarantee the efficacy of helmets against brain injury as “setting our own definition of minimum protection”. Yet our argument is in line with the function of the mandatory standard of defining the helmets that are compulsorily worn according to legislation of the states and territories, and with the Productivity Commission’s recommendation for a mandatory standard. The vague comment in paragraph 100 suggests that the ACCC has no understanding of the importance of the standard for supporting policy and laws.

D20 contains comment by the ACCC as follows: “CRAG has been opposed to both the mandatory standard for bicycle helmets and State/Territory laws”.

[CRAG’s comment: It is wrong to say that CRAG has been opposed to the mandatory standard. We recognise the need for a mandatory standard for helmets, but we argue that, so far, it is inadequate to support the policy and laws for compulsory wearing.]

Studies in the UK

In the UK, the Government has been pressed to introduce compulsory wearing, but it has not done so. Recognising that compulsion would need to be evidence-based, the Department for Transport (DfT) engaged the University of Newcastle (UK) in 2002 to study the efficacy of helmets. The study concluded that there was much scientific evidence that helmets reduce head and brain injury, but it did not refer, even in its discussion of standards, to rotation or angular acceleration. On this and other grounds, it was severely criticised. DfT responded by expressing its concern that helmets may increase the risk of brain injury from rotational motion and by commissioning Transport Research Laboratory (TRL) to investigate the potential for injuries in bicycle accidents, especially those to children.

TRL’s report, PPR 203 of 2007,[3] cites Curnow (2003)[4] as criticising statistical studies which attribute reductions in head injuries to helmets, because they “take no account of scientific knowledge of brain injury mechanisms and do not distinguish injuries caused through fracture of the skull and angular acceleration”. The report comments that it is not possible to identify which cyclists’ head injuries are caused by rotational motion, adding: “this tends to agree with Curnow”. Further, some of the experiments which TRL reports show that a helmet can increase rotation and that ventilation features, now common, can aggravate this effect; oblique transverse impacts upon longitudinal ridges of two helmets tested resulted in forces having potential to injure. TRL suggests that a test for rotation in the standard would certainly need to be considered “if bicycle helmet wearing were to become compulsory” (report pp.44-48).

Next, DfT engaged TRL to make a comprehensive review of the literature on the effectiveness of helmets. The report, PPR 446, of November 2009[5], also cites articles by Curnow.[6] It concludes that it is not possible to determine definitively from the literature the level of effectiveness of cycle helmets. And this is referring to head injuries, much less to brain injuries. It says that the most relevant head injuries are skull fracture and brain injury and it notes many gaps in knowledge. But it concludes that “no evidence was found for an increased risk of rotational head injury with a helmet compared to without a helmet”. This conclusion is astounding: TRL report PPR 203 contains such evidence! On the critical issue of rotation and brain injury, TRL admits to having no answer; the report is full of loose ends and uncertainty.

CRAG’s concluding comments on the review of the mandatory standard

While authorities in the UK give credence to research, by Curnow and by others, which criticises the ATSB report and which shows that wearing a helmet can increase the risk of injurious rotation of the head, the ACCC refuses to. It continues to claim against the evidence that standard helmets protect against brain and fatal injuries.

ACCC’s public statement on bicycle helmets

See http://www.productsafety.gov.au/content/index.phtml/itemId/974621,  Product Safety Australia, for the ACCC’s public statement on bicycle helmets:

“Bicycle helmets are specialist head protection designed to reduce the likelihood of injury to a cyclist in the event of an accident. …

“Cyclists may suffer death or serious injury in the event of an accident if the bicycle helmet they are wearing is unsafe and does not adequately protect their head  …

“Studies suggest that bicycle riders wearing helmets suffer lower rates of death than those not wearing helmets.”

[CRAG’s comment: The statement gives the impression that helmets reduce rates of injury and death, but it actually contains no assurance of this. “Designed to reduce the likelihood of injury” does not mean that they do and it is conceded that a helmet may be unsafe. Further, some studies link wearing helmets with higher rates of death.5,6 ]


References

[1] Attewell, R., Glase, K., McFadden, M., 2001. Bicycle helmet efficacy: a meta-analysis. Accid. Anal. Prev. 33, 345-352.
Curnow, W.J., 2003. The efficacy of bicycle helmets against brain injury. Accid. Anal. Prev. 35, 287 292.
Curnow, W.J., 2005. The Cochrane Collaboration and bicycle helmets. Accid. Anal. Prev. 37, 569 573.
Hagel,B.E., Pless, I.B.,2006. A critical examination of arguments against bicycle helmet use and legislation. Accid. Anal. Prev. 38 (2), 277-278.
Curnow, W.J., 2006. Bicycle helmets: lack of efficacy against brain injury. Accid. Anal. Prev. 38, 833-834.
Cummings, P., Rivara, F.P., Thompson, D.C., Thompson, R.S., 2006. Accid. Anal. Prev. 38, 636-643.
Curnow, W.J., 2007. Bicycle helmets and brain injury. Accid. Anal. Prev. 39, 433-436.

[2] Curnow WJ. Bicycle helmets and brain injury. Accid. Anal. Prev. 2007 39, 433-436.

[3] St Clair, VJM, Chinn, BP, TRL Limited. Assessment of current bicycle helmets for the potential to cause rotational injury, published project report PPR 213, April 2007.

[4] Curnow, WJ. The efficacy of bicycle helmets against brain injury. Accid. Anal. Prev. 2003. 37, 569-573.

[5] See http://btawa.org.au/wp-content/uploads/2010/02/The-Potential-for-Cycle-Helmets-to-Prevent-Injury-Review-.-D.Hynd-UK-2009.pdf

[6] Curnow WJ. The efficacy of bicycle helmets against brain injury. Accid. Anal. Prev. 2003. 37, 569-573; Curnow WJ. The Cochrane Collaboration and bicycle helmets. Accid. Anal. Prev. 2005. 35, 287-292. Curnow WJ. Helmets not helpful – an example of poor public policy. (letter) Health Promotion Journal of Australia 2005: 16 (2), 160.

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SUBMISSION TO NATIONAL HUMAN RIGHTS CONSULTATION May 2009

1. Introduction

This submission comments upon the specific application of the three key questions of the Consultation to cyclists. Enclosure A, being my chapter 6 of the book Transportation Accident Analysis and Prevention provides supporting data and argument. References to it are simply by page number designated as [141] etc. Other references are listed in the endnotes.

1. Which human rights (including corresponding responsibilities) should be protected and promoted?

The right of cyclists to choose how to protect their own persons from injury, there being no question of harm to other people.

Do you think that you also have responsibilities along with those rights and liberties?

Yes; it is simply to abstain from all actions which restrict the free and legal activities of others.

2. Are these human rights currently sufficiently protected and promoted?

No; cyclists in all public places are compelled to wear helmets. The Commonwealth adopted this policy in 1989, by offering funds for roads in the states and territories conditional upon them legislating for it. The Australian Road Rules now require it too. It responds to fear of death and disability from head injury, which mainly result from damage to the brain. Its rationale or purpose is to minimise the medical and other public costs of accidents to cyclists (Enclosure B). A mandatory standard for helmets prescribed by Commonwealth legislation supports the legislation.

3. How could Australia better protect and promote human rights?

(a) Abolish the policy, remove from the Australian Road Rules the provision for

compulsion to wear a helmet and repeal the legislation that gives effect to it.

(b) Incorporate the ICCPR, in particular Articles 7, 9 and 26, into Australian law,

and consider human rights more formally in the process of legislating.

This Group has been campaigning against the helmet laws since 1992.

 

2. Right of self-protection

In Western civilisation, protection of one’s own person has been regarded, at least from the time of St Thomas Aquinas, as a private matter not subject to public law. Law in Europe developed from his emphasis on avoiding harm to others to become the primary rule of the civil code of Austria in the 19th century: ‘Abstain from all actions which restrict the free and legal activities of others’.[1] Later in the century, J.S. Mill declared that individuals are sovereign over their own bodies and minds, and power can be rightfully exercised over them only to prevent harm to others[2] This principle was taken up in the Universal Declaration of Human Rights 1948. Also, Mill defined the proper function of public authority in guarding against accidents as being only to warn of danger; not forcibly to prevent individuals from exposing themselves to it [166-68].

3. Helmet laws harmful

Though the helmet laws are intended to provide benefits to cyclists and to improve public health, they are harmful. First, cyclists have suffered harassment and punishment for non-compliance. In Victoria, in the first year of the law, 19229 Bicycle Offence Penalty Notices (fine of $15 then) were issued to adults and 5,028 Bicycle Offence Reports (no fine) to parents of children. In 2003, Victoria Police said that they still issued around 20,000 Bicycle Offence Penalty Notices a year (fine $50).

Exemptions have been provided for in most jurisdictions, mainly for medical reasons, but have not been easily obtained. In Victoria only 52 were granted in more than two years of operation of the helmets law.[3] Generally, provisions for exemptions have been phased out on the advice of the Royal Australasian College of Surgeons in 1992 (Enclosure C). Considering, among other things, the poor state of knowledge about the efficacy of bicycle helmets then [158] the advice had no scientific basis.

For refusing to pay fines for not wearing a helmet, people have been imprisoned in five jurisdictions. In Victoria on 8 May 1996, a woman who was refused an exemption and would not pay a fine was imprisoned for 24 hours, despite being six months pregnant. In a letter the Adelaide Advertiser on 16 August 1993, Mrs Ricky Kaak stated that her “71 year-old father-in-law was picked up by the Ceduna police the day before Christmas, 1992, because he refused to pay a fine for consistently not wearing a safety helmet while riding his bike. This elderly gentleman endured two days and two nights in the Ceduna lock-up”. In the Northern Territory, a 15 year-old girl was jailed. In the ACT, 16 residents’ driving licences and 143 non-residents’ right to drive a motor vehicle in the Territory were suspended in the first five years of the helmets law. None of these punishments was condign.

Discouragement

Not surprisingly, many people who do not want to wear a helmet have been discouraged from cycling. Using data from surveys in five states and two territories [162, Table 1] it is estimated that cycling by children and by adults declined by 40 per cent perhaps 30 per cent respectively. These people would have lost its benefits, including better health from the exercise and, for children, early opportunity to learn how to use roads safely [163-64]. And it is likely that motorists seeing fewer cyclists made less allowance for them, thus increasing their risk of accident.

Increased risk of brain injury

There is evidence that the risk of serious casualty, including fatal head injury, increased after the helmet laws [164-66]. This came about because governments failed to meet their prime responsibility to cyclists: to verify that helmets protect the brain and will not harm it. They took no account of scientific research on brain injury [141-52]. Further, in prescribing the mandatory standard, Commonwealth authorities brushed aside findings of commissioned research which showed deficiencies in helmets including potential to increase diffuse injury to the brain [153-55]. This Group brought these deficiencies in the standard to the attention of authorities in 1998 and we have since been pressing for remedial action, but to no avail. And authorities have never warned the public of the deficiencies.

4. The ICCPR

Article 7 provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” As we interpret the article, the second sentence helps to define the meaning of the first, not vice versa, by making clear that it includes any enforced medical or scientific experimentation.

The Productivity Commission recently pointed out that it is not possible to have certainty in public policy: always it is experimentation. But it needs a good rationale or theory, and all policy experiments need to be monitored and evaluated.[4]

Because Australia was the first country in the world to compel the wearing of bicycle helmets, the policy is, more than most, an experiment, that is, “a procedure adopted in uncertainty whether it will answer the purpose” (SOED). Moreover, having regard to its purpose – see above – the policy amounts to (preventive) medical experimentation. Some other policies adopted for purposes of medical treatment would also be experimentation, but they normally are evaluated against scientific knowledge and by proper monitoring. Before drugs and therapeutic devices are permitted to be sold in Australia, the Therapeutic Goods Administration evaluates their efficacy and safety, having regard to all relevant knowledge, and thereafter monitors the use of them and published reports about them. If adverse effects or dangers in their use come to light, they are withdrawn from the market.

By contrast, on the critical issue of protecting the brain from fatal or disabling injury, the policy of compulsion to wear a helmet runs contrary to scientific knowledge [150-52], the mandatory standard for them is deficient and Commonwealth authorities have not done proper monitoring. The policy was adopted in uncertainty whether it would answer the purpose of reducing the risk of brain injury and its resulting social costs. Later, authorities failed to consider the implications of a report of the NHMRC in 1994 which warned that the wearing of helmets may result in an increase in diffuse brain injury [160]. It would appear that compulsion to wear a helmet contravenes Article 7 of the ICCPR.

Article 9

Article 9 provides that everyone has the right to liberty and security of person, but there is evidence that compulsion to wear a helmet increases the risk of serious casualty to cyclists, and of fatal head injury [164-66]. It would appear, then, that Article 9 is also contravened.

 

Article 26

Article 26 provides that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Compelling cyclists to wear helmets for the purpose of minimising the public costs of accidents contrasts sharply with motorists, who suffer many more head injuries; in 1988, 690 occupants of motor vehicles died from head injury compared to 40 cyclists.  Whether there is discrimination according to Article 26 depends, first, on whether for its purposes category of road user may be a status. As the examples of grounds that are listed do not seem to imply limitation to any class, it would appear that status has a wide meaning. According to Bailey, the intention of Article 26 is to prohibit discrimination of certain kinds, either those specified or extrapolated by using the concept of status.[5]

Second, the UN Human Rights Committee has observed that not every differentiation of treatment will constitute discrimination if the criteria for it are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. Differentiation therefore might be reasonable if authorities believed that compelling occupants of motor vehicles to wear helmets would not reduce their head injuries and the resulting medical and other public costs. But authorities do not believe that; the media release in 1998 of a study of head and brain injuries to occupants of cars (Enclosure D) shows that their belief is that bicycle-style helmets would provide great protection. Enclosure E depicts the study’s principal author, Professor Jack McLean, and others wearing helmets in a car.

It would appear that the laws that compel cyclists to wear helmets contravene Article 26 of the ICCPR.

4. The common law

The purpose of minimising the medical costs of cycling accidents makes the policy of compulsion to wear a helmet a preventive medical treatment in effect. An issue is whether the helmet laws take away human rights under the common law pertaining to medical treatment. Two such rights are the choice to be treated or not, and to be warned of likely adverse effects.

Over the twenty years before the helmet laws, it was increasingly recognised that people have the right – indeed the responsibility – to decide for themselves what medical treatment they will have and doctors have a duty to give them sufficient information to make their decisions.[6] Courts have expressed these rights in strong terms. In 1992, England’s highest court upheld the right to refuse medical treatment, as follows: “The patient’s interest consists of his right to live his own life how he wishes, even if it will damage his health or lead to his premature death. Society’s interest is in upholding the concept that all human life is sacred and that it should be preserved if at all possible. … In the ultimate the right of the individual is paramount.”[7] In the same year, the High Court of Australia made it clear that all medical treatment is preceded by the patient’s choice to undergo it, and that a doctor has a duty to warn a patient of a material risk inherent in it.[8]

Clearly, the helmet laws take away cyclists’ right to choose whether to wear a helmet, there being no question of harm to any other person. This contrasts with the respect which government accords to the right of persons to reject other preventive medical treatment, such as vaccination against whooping cough and other contagious illness, even though others are put at risk. And authorities have never warned the public that wearing a helmet is likely to increase the risk of diffuse injury to the brain. Rather, they proclaim that helmets save lives (Enclosure F).

We do not question the right of parliaments to override the common law, but suggest that they should make provision for more formal consideration of human rights in the process of legislating.

5. Conclusions

(a) Legislation which the Australian states and territories enacted to give effect to a Commonwealth policy that cyclists should be compelled to wear helmets removes a long-standing right to choose how to protect one’s own person.

(b) There is evidence that the legislation has harmed cyclists by subjecting them to penalties, by discouraging cycling, with loss of its benefits for health, and by increasing the risk of serious casualty including fatal head injury. It would appear that the legislation contravenes Articles 7, 9 and 26 of the ICCPR and takes away human rights under the common law.

(c) The policy of compulsion to wear a helmet should be abolished, the provision for it in the Australian Road Rules removed and the legislation giving effect to it repealed.
(d) The ICCPR, at least Articles 7, 9 and 26, should be incorporated into Australian law and human rights should be considered more formally in the legislative process.


References

[1] Strakosch, H.E., State Absolutism and the Rule of Law, p. 208, Sydney University Press. 1967.

[2] Mill, J.S., On Liberty and other Essays, World’s Classics, New York, Oxford University Press, 1991, p. 14.

[3] Vulcan, AP, Cameron MH, Finch CF, Newstead SV (Monash University Accident Research Centre). Establishing compulsory bicycle helmet wearing – the experience in Victoria, Australia. In Proceedings of European Consumer Safety Association meeting  “Helmets for all”. April 1993.

[4] Gary Banks speech ANZSOG/ANU Public Lecture Series 2009, Canberra, 4 February.

[5] Bailey, PH. Human Rights, Australia in an international context, Butterworths, Sydney. 1990.

[6] Skene, L., You, your doctor and the law, Oxford University Press, Australia, Melbourne, 1990.

[7] Re T (Adult: Refusal of medical treatment), (1992) 4 ER 649 at 668.

[8] Rogers v Whitaker (1992) 175 CLR 479, at 487.

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Submission to the Prime Minister April 2009

Following CRAG’s submission, the federal government abandoned its policy of supporting compulsory bicycle helmets, stating in a letter to CRAG that “helmet wearing policies are entirely determined at a state and territory government level”.

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SUBMISSION ON BICYCLE HELMETS

Introduction
When the then Prime Minister Hawke announced the ‘black spots’ program in December 1989 to reduce the national road toll and improve safety, he offered additional road funding to induce the states and self-governing territories to legislate for ten “known and effective” measures. One such is the compulsory wearing of bicycle helmets, and even though it was untested anywhere in the world, it became law Australia-wide by 1992, as “a logical progression from motorcyclists”.[1] The states’ and territories’ laws are supported at the federal level by the prescription of a mandatory standard for helmets under the Trade Practices Act 1974.

The policy of compulsory wearing of helmets is examined here as follows:

1. Origins

2. Efficacy of helmets

3. Helmet laws in practice

4. Upholding the laws

5. Discussion

6. Conclusions.

The submission draws on the detailed exposition in Chapter 6 of the book Transportation Accident Analysis and Prevention, a copy of which is enclosed. It is referred to by page number designated as [141] etc. Other references are listed in the endnotes.

1. Origins [156, 158]

The Royal Australasian College of Surgeons (RACS) was the first to argue for compulsory wearing of bicycle helmets. Its testimony to a federal parliamentary inquiry in 1977 emphasised death and permanent intellectual incapacity from head injury and the inquiry’s report, released in 1978, recommended that the possibility of compulsory wearing should be kept under review.[2] Precedents for compulsion were the wearing of helmets by motorcyclists and the use of seat belts by motorists.

A further federal parliamentary inquiry was undertaken in 1984, and by that stage belief in the value of helmets for mitigating injury to the brain was widespread. The RACS was urging what it called “the third major step”[3] and some bicycle groups had accepted the use of helmets and were promoting it as a safety measure.[4] The Australian Medical Association’s (AMA) policy was that all cyclists should be required to wear a helmet while the National Health and Medical Research Council (NHMRC) recommended compulsory use by children. The then Federal Minister for Transport stated that he supported the wearing of helmets, opining that they can save cyclists’ lives.[5] But all such support for helmets, from medical bodies, cyclists’ groups and Minister, predated the studies that were subsequently relied upon to show their efficacy [160-61]. It was not informed by any properly conducted studies. Nevertheless, the inquiry’s final report in 1985 recommended the compulsory wearing of helmets by cyclists. Subsequent parliamentary inquiries in Victoria in 1986 and NSW in 1988 assessed the risk to cyclists as great or worsening and made similar recommendations. Their reports appear as principal exhibits in an official statement of reasons for the Federal Government to adopt this policy.[6]

In Victoria, the Government acted from 1980 to promote the voluntary use of bicycle helmets. In 1984, an official publicity campaign highlighted the risk of death and permanent disability from head injury, its intention being to trigger parents’ fear about their children’s safety. An increase in voluntary wearing followed and in 1984 Victoria announced its intention to make it compulsory. The intention became policy in September 1989.

Two further factors influenced the development and adoption of a federal policy on bicycle helmets. In a submission to the then Prime Minster in April 1989, the prominent surgeon Sir Dennis Paterson urged the Government to take the initiative on road safety. He emphasised the occurrence of brain injury and permanent disability to young adults and children and the savings in hospital and other costs that prevention of these could yield. For cyclists, he suggested that the wearing of helmets should be encouraged with a view to it being compulsory later, but the Government opted for compulsion forthwith. Sir Dennis also pointed to need for further research and analysis on the causes of death and injury and recommended that both the Departments of Transport and Health should contribute to supporting a road safety authority with the capacity for research. But health authorities have consistently declined to undertake research or engage in the debate on the effects of the helmets policy on public health.

The second factor was an assurance of popular support. A national survey of 2000 people just before the Prime Minister’s announcement indicated that 84 per cent of respondents supported compulsory helmets for all cyclists, rising to 93 percent for their use by children. It is highly likely that most of the respondents would have been non-cyclists and favouring restrictions on other people is an easy course. Such surveys are of course no substitute for proper research and analysis.

The compulsory helmets policy was tied to the Government’s “black spots” program with the Federal Government securing the agreement of responsible ministers of the states and self-governing territories through the Australian Transport Advisory Council (ATAC). It is stated that the official purpose of the federal policy is to minimise the medical and other public costs of accidents to cyclists.[7] This, in effect, imposed a preventive medical treatment solely upon those who choose to cycle. Ironically, the risk of serious casualty to cyclists was falling in 1989.

2. Efficacy of helmets [141-150]

By tradition, protection of one’s own person without harm to others is a matter of individual choice.[8] Law to compel it therefore requires, as a minimum, sound evidence that the means are efficacious.

The laws that compel the wearing of helmets stem from the fear of death and dementia from head injury. Those who advocate the use of helmets and the content of official publicity have typically focused on these dire outcomes, but they have failed to acknowledge that they are rare. The problem for policy is therefore how best to protect the community from brain injury without unfairly discriminating against a particular group.

A rational search for a solution would start from knowledge of the types of injury and their causes. There are two main types, focal and diffuse. Until the mid-twentieth century, only focal injury comprising obvious lesions was recognised. A common cause of it is an external object or cranial bone striking the brain when the skull is penetrated or otherwise fractured. Helmets used in warfare and industry therefore have hard shells which protect the skull against fracture by bullets, falling stones and the like. The first cycle helmets were of this design, but it is doubtful whether today’s soft helmets can prevent fracture of the skull and consequent injury to the brain.

The other type is diffuse injury which occurs to the nerve cells of the brain, concussion being its mild form. Its severe form, diffuse axonal injury (DAI), occurs mainly in road traffic accidents, is often fatal and is the commonest cause of dementia from head injury. It typically occurs when the person is the moving object and is subject to an oblique impulse which imparts rapid rotation to the head. The skull need not be damaged or the head even struck, as with whiplash injuries. Focal injury can also occur if bony protuberances inside the rotating skull strike the brain. Reducing rotation is therefore critical for protecting against both focal and diffuse injury, but it is an unsolved technical problem standard helmets are not tested for capacity to do it. Further, studies in Australia (1987), the USA (2003) and the UK (2007) have yielded evidence that the addition of a helmet to the head can actually increase rotation. The conclusion is that no assurance can be given that helmets of current design can protect the brain. Worse, wearing a helmet might well increase the risk of injury to it.

When the RACS urged the compulsory wearing of bicycle helmets at the federal parliamentary inquiry in 1977, it provided no evidence of their efficacy. Indeed, Dr Trinca showed a cavalier attitude to it, stating: “We could perhaps worry a little less about and take a little less time in proving what is precisely right according to all standards … As doctors we are impatient. We cannot wait for 2 or 3 years evaluation”.[9] This is no basis for good policy. Later, the RACS argued that helmets would be efficacious because a study by two of its members, McDermott and Klug, had found a higher rate of head injury among cyclists who did not wear them than motorcyclists who did. A later study by Dorsch et al. discredited this argument, but the RACS persuaded governments that there should be no medical exemptions (Enclosure 2). By 2002, the RACS was relying on a 1993 study by several of its members for evidence of the efficacy of helmets, but it has been refuted [161]. Neither the AMA nor the NHMRC has provided independent evidence to support their advocacy of compulsory wearing, the former merely relying on the RACS.

2.1 Evidence for the 1989 decision [158-160]

In response to a request to state the rationale for compelling cyclists to wear a helmet traffic authorities have cited six reports. None of them provides sound evidence of efficacy against brain injury.

Extraordinarily, the report of the federal parliamentary committee which recommended compulsory wearing is not cited. The committee was prematurely disposed to believe in the efficacy of helmets and readily accepted findings of the studies it cited. The most influential, a 1984 version of a study by Dorsch et al. in South Australia, included an estimate that wearers of hard helmets were 19 times less likely to die. An officer of FORS[a] who appeared before the committee on cited this estimate[10] and the committee accepted it, but Dr Dorsch retreated from it in her own evidence and it does not appear in the final version of the study, published in 1987. The committee also cited the discredited study by McDermott and Klug of the RACS, see above. Finally, the Victorian Government, despite its own promotion of helmets, told the committee that their efficacy had not been verified. Yet the committee’s belief in the efficacy of helmets would seem to have been unshaken.

FORS, in its submission of May 1984 to the federal parliamentary committee, affirmed “unequivocally” that the wearing of helmets by motorcycle riders and pillion passengers and by bicyclists is the principal means of reducing casualties, but upon inquiry was unable to provide supporting evidence.[11] FORS prepared a paper, “The road safety benefits of the compulsory use of bicycle helmets”, that persuaded the ACT to pass a helmets law. It claims “overwhelming evidence” that compulsory wearing would improve safety. But its focus is on head injury, not the brain, and for evidence of the efficacy of helmets it merely cites Dorsch et al. for an estimate that helmets could reduce the risk of dying by 90 per cent, and McDermott and Klug.

The only evidence of efficacy of helmets which Sir Dennis Paterson offered in his submission to Mr Hawke in 1989 was Dorsch et al. (1987).

Clearly, belief that helmets protect cyclists from severe injury to the head was widely accepted by 1989 even though evidence for it was lacking. It appeared to be a matter of common sense, respected medical bodies were saying it and authorities were advocating it. Everybody “knew it”. So when ministers meeting as ATAC came to consider compulsory wearing, no-one queried whether helmets were effective. Exaggerated claims abounded: “The medical evidence is overwhelming”, “Young children in simple falls from their bicycles are finishing up with permanent brain injury and helmets contribute to their safety”. The meeting turned to practical problems of enforcement.

2.2 The mandatory standard [153-156, 161]

The mandatory standard defines the helmets to be compulsorily worn. Its officially stated purpose, as of 2007, is to set minimum requirements to prevent or reduce the risk of injury or death. It is modeled on the voluntary standard prepared by Standards Australia (SA), a private body and, clearly, it should ensure that helmets protect the brain. But commissioned research, by Corner et al. in 1987, reported that the standard tests were deficient in merely ensuring protection against a direct blow but not in reducing rotation, which a helmet could even increase. Also, unlike the control of therapeutic goods, the mandatory standard does not include monitoring for adverse effects. The SA standard before 1990 required helmets to have hard shells, but to overcome an obstacle to mandatory wearing it was amended to allow soft helmets.[12] The amendment degraded the standard, but the Department of Transport advised its minister that it was being upgraded and would result in improved helmets.

Our submission to the Treasury’s review of the mandatory standard in 1998-99 argued the need for a test to ensure that helmets reduce rotation, but officials relied on advice from SA which takes no cognisance of rotation and our argument was disregarded. The review gave less attention to the safety of cyclists than the benefit to the helmets industry. Nevertheless, the responsible minister declared that the new standard would ensure that helmets provide the necessary protection. Late in 2002, we called on SA to include a test for rotation in its voluntary standard. The response says there is not sufficient evidence that standard helmets would perform poorly against rotation (Enclosure 3). This ducks the issue that evidence should ensure that helmets always reduce rotation.

Progress on the current review of the mandatory standard has been greatly delayed because the ACCC relies upon SA for technical advice and waited for it to revise its standard. SA published its revised standard in November 2008, but it includes no test for rotation because, it would appear, the helmets industry would not be able to satisfy it. In three submissions to the current review by the Australian Competition and Consumer Commission (ACCC),[13] we have argued that the standard is deficient in lacking such a test, but we have received no indication in subsequent communications that the validity of our argument is recognised. And authorities have never warned the public of the deficiency.

2.3 Formal review [160-61]

In 2000, the ATSB belatedly attempted to establish the efficacy of bicycle helmets by making a formal review of 16 studies, though only three of them had been published prior to the policy of compulsory wearing. The review (Road Safety Report CR 195) was also published as a slightly altered version in 2001, in the journal Accident Analysis & Prevention. ATSB claims it to be a scientific study and to provide clear evidence that helmets reduce the risk of brain injury and death, but papers by Curnow in the same journal rebut the claim, a rebuttal that ATSB has been unable to defend. Any claim that the review might have to scientific validity is thereby relinquished and in question is whether any public purpose was served by publishing it in the journal.

3. Helmet laws in practice [161-66]

The safety of all road users was improving when the helmet laws were introduced. Though federal authorities did not make arrangements to measure accurately the effects on cycling and casualties for Australia as a whole, data from disparate sources serve to provide estimates. In short, participation in cycling declined after the laws, by an estimated 40 per cent for children and perhaps by 20 per cent for adults. Serious casualties to all road users, including fatal head injury, were decreasing, but cyclists shared less than commensurately in this trend; the risk to them therefore increased relative to others. The helmet laws might well have changed the perceptions and behaviour of motorists towards cyclists so as to increase the risk of accident to them. For example, a recent study found that the distance between a passing motor vehicle and a cyclist was less when the cyclist was wearing a helmet. Other adverse effects of the reduction in cycling include the loss of health benefits from exercise, increased pollution if car travel is substituted for cycling and fewer children gaining the benefits of experience as a cyclist before driving a car.

4. Upholding the policy [160-61]

Federal authorities’ commitment to compulsory wearing of bicycle helmets has never wavered since 1984 and overstatement of its value has continued. Despite the deficiencies of helmets that Corner et al. found in 1987, federal authorities pressed hard to uphold compulsory wearing.

The main effort was directed to Western Australia in 1994, where a parliamentary committee was reviewing its helmets law. FORS made a submission which shows declining trends in casualties after the introduction of helmet laws in Australia, but its analysis neglects other explanatory factors – see Appendix 1. These factors include improved road safety generally and a decline in cycling, which FORS underestimated, and the possibility, well known at the time, that wearing a helmet can change behaviour and the risk of accident. Also, some treatment of statistics was unsuitable and, underlying all of these, was failure to understand that the real problem is how to prevent severe injury to the brain, not just trauma to the head.

5. Discussion

According to Peter Walsh, the former Senator and Minister for Finance in the Hawke Government, the “black spots” program was not evaluated properly and was driven by opinion polls, not policy rationality.[14] He described the processes followed as, “a classic demonstration of how not to make policy decisions”.[15] These criticisms would certainly appear to be applicable to the bicycle helmets component.

5.1 Criteria for policy

The Productivity Commission recently adumbrated the meaning and criteria of evidence-based policy. Compulsory wearing of bicycle helmets is examined here against these.

As compulsory wearing had not been tried in any other country, introducing it was an experiment in policy terms, but it was not backed up by any defensible rationale. Contrary to the views expressed by various parliamentary committees, the risk of serious casualty had been declining. Federal authorities relied too much upon these committees’ reports and untested sources for evidence of the efficacy of helmets [160]. Insufficient attention was given to the Victorian Government’s statement that helmet use was not high enough anywhere in the world for a scientific examination of their efficacy to be undertaken.

Authorities have relied unduly upon Standards Australia for advice on the content of the mandatory standard. Undue weight has been given to the interests of the helmets industry at the expense of the safety of cyclists, and serious deficiencies in standard helmets which Corner et al. found were glossed over. The Government has never been able to guarantee the safety of the helmets which cyclists are forced to wear.

The basic problem for policy was how to protect the brain from the rare injury that results in death and disability. It would appear that authorities did not understand that the main cause of this injury is rapid rotation of the head in collisions with motor vehicles and that standard helmets provide no sure means of protecting from it. Indeed, they are likely to aggravate it. Authorities gave too much attention to commercial helmets and, like the officially stated purpose of the mandatory standard[16], to head injuries generally, though nearly all of these are mild with no lasting effects. Studies relating the occurrence of head injury with the wearing of helmets were used to provide evidence of their efficacy, but the few studies which relate them to brain injury have no cognisance of its types and main cause, rotation of the head. Reducing it is an unsolved problem and helmets are not tested for capacity for it. Worse, three studies have shown that wearing a helmet is likely to increase rotation. Consequently, the policy of compulsory wearing of helmets provides no solution to the basic problem and puts undue responsibility upon cyclists.

The way in which the policy was developed was flawed. Undue reliance was placed on advice from surgeons, including Sir Dennis Paterson. As Senator Walsh noted, after 1987 “increasingly, the Government, and most importantly Hawke, became hostage to narrow and unrepresentative pressure groups” Advice tested in open consultation might have provided insights into adverse effects and unintended consequences.

Victoria’s announcement in September 1989 that it would compel the wearing of bicycle helmets from July 1990 gave the Federal Government an opportunity to observe the operation of the policy before committing itself. Victoria could have been assisted to study and measure its effects, but this opportunity was missed.

Since the policy began, official certitude about its efficacy in the absence of evidence has been apparent. Ministers declare that “helmets save lives” as if it were beyond doubt. Sir Dennis Paterson’s call for research and analysis and his recommendation that the Departments of Transport and Health should be involved in a road safety authority with substantial capacity for research have not been implemented. Health authorities have not taken any interest in the effects of the policy on public health and responsibility has been fragmented among a range of federal and state agencies.

The effects of the policy on cycling and casualties have not been monitored Australia-wide in a uniform way to measure its effects on cycling and casualties and to enable corrections to it. It has not been properly evaluated despite evidence of unintended and detrimental effects on public health. A concern is that public agencies have responded to criticism of the policy with obfuscation. For example, the ATSB continues to tell ministers that helmets protect the brain ignoring the evidence that has been presented for a number of years in reputable scientific journals.

5.2 Evaluation of the policy

Available data indicate that the policy has not met its purpose of reducing the public costs of accidents. Rather, it would appear that the risk of serious casualty to cyclists including fatal head injury has increased relative to other road users. By discouraging cycling the policy has had many adverse effects. These include loss of the benefits for health that result from the exercise of cycling, and increased pollution, noise and traffic congestion as car trips are substituted for it. The benefits and joys of cycling have been stolen from a generation of children which has lost the opportunity to learn to use roads safely before driving a car, and to understand, first-hand, that the roads are shared by a variety of users.

A recent study by Professor Piet de Jong of Macquarie University, “Evaluating the health benefit of bicycle helmet laws” comprises a mathematical model which purports to balance the benefits of increased safety against costs due to decreased cycling. Even though the study uses the most optimistic assumptions, in particular that wearing a helmet reduces the cost of injury, it concludes that helmet laws do not deliver a net benefit and indeed impose a considerable health cost on society.

To undo these harms to society, the obvious first step would be to terminate the policy and repeal the mandatory standard, making it clear to the public that the safety of helmets cannot be guaranteed. The states and territories would then not need helmet laws for “black spot” funding and could be expected to repeal them. This would encourage cycling at no net cost to the public, rather a net gain. The helmets industry would lose a captive market – but it never earned it. Some cycling groups might protest, but they would not experience any real loss and their members would be free to continue wearing helmets if they chose to.

5.3 Wider implications

It is likely that other national road rules and practices would be found wanting if subjected to rigorous examination. The Government therefore should invest more to strengthen scientific research, including in-house capacity as suggested by Sir Dennis Paterson. The aim would be to change the culture of dealing with road trauma, from reaction reflecting popular assumptions to measures supported by evidence.

6. Conclusions

1. As use of bicycle helmets stems from fear of death and dementia from head injury, the policy of compulsory wearing requires certainty that they protect and never harm the brain. But supporting evidence is lacking and standard helmets are deficient.

2. No uniform monitoring Australia-wide was done to measure the effects of the policy, but available data indicate that cycling declined, losing its benefits for health and for children, and that the risk of serious casualty and fatal head injury increased.

3. Rather than correct the policy, authorities have obfuscated its adverse effects. It should be terminated forthwith, the mandatory standard repealed and capacity for scientific evaluation of policies for road safety strengthened so as to minimise harm.

Cyclists’ Rights Action Group                                               30 April 2009

APPENDIX 1: Official misrepresentation

 

Federal authorities’ commitment to compulsory wearing of bicycle helmets has never wavered since 1984 and excessive assurances of its value have continued. Although federal authorities knew of the deficiencies of helmets that Corner et al. had found, they pressed the states and territories to pass laws for compulsory wearing. The federal minister threatened to seek reimbursement of funds in the event of non-compliance and he dismissed his South Australian counterpart’s reservations, arguing that permanent brain injury would be prevented.[17],[18] Federal authorities also criticised an exemption which the Northern Territory granted for adults on cycle paths[19],[20], but their main effort to uphold compulsory wearing was directed to Western Australia.

Western Australia [162-63]

Opposition to compulsory wearing of helmets was strongest far from Canberra, Western Australia being the last state to legislate, in 1992. Its Parliament’s Select Committee on Road Safety reviewed the application of the helmets law to adults in 1994. As this threatened the integrity of the national policy, the Federal Office of Road Safety made a submission which argued for upholding the law  FORS’s argument on the effects of compulsory wearing on fatalities and injuries, and the fall in rates of usage of bicycles is examined here.

Fatalities

FORS presented two graphs which purport to show the effect of compulsory wearing on bicycle fatalities. The first, Figure 1 (with data for 1994 and pedestrians added here), is misleading in not taking any account of the effect of the fall in usage.

Figure 1.  Road user fatalities, Australia (indexed to 1986)

Separate listing of fatalities to children and adults, as in Table 1, together with data from surveys showing declines in cycling post-law [162], makes it possible to correct for both the effects of reduced usage and the general improvement in road safety.

Table 1. Fatalities to road users, Australia 1989 – 1993

YearTotal road usersAdult          ChildPedestriansAdult         ChildBicyclistsAdult          Child
19892505           296428             7354               44
19902093           238344             7647               33
19911915           198292             5135               23
19921783           191297             5324               17
19931775           178284             4730               15
Change, 1989-93-29%         -40%-34%         -36%-44%          -66%

Source of data: FORS, 1997. Road Fatalities Australia: 1996 statistical summary.

The fall in fatalities to all cyclists from 1989 to 1993 can be explained as being the product of improved road safety and declines in cycling of 40 per cent by children and perhaps 20 per cent by adults; it is not evidence that the helmet laws reduced the risk of death. FORS also claimed that the reductions in head injuries and fatalities are far greater than the decline in cycling, but this made no allowance for the general improvement in road safety; the claim is irrelevant.

Injuries

FORS stated that helmets have little or no effect on injuries other than to the head, but this discounted the possibility, well known at the time, that wearing one could change behaviour and the risk of accident. Decreases in head injury in some states were cited, but with no allowance for improved road safety or the declines in cycling. According to FORS, reduction in head injury is the best measure of compulsory wearing, but this highlighted its failure to understand the real problem, namely, how to protect from brain damage and consequent death or chronic disability, not from minor trauma.

For Victoria, FORS noted that in the first year after helmets became compulsory, cyclists’ claims on the Transport Accident Commission (TAC) for head injuries decreased by 51 per cent compared to a fall of 24 per cent in non-head injuries. In the second year, the respective decreases were 70 per cent and 28 per cent. FORS said that Lane and McDermott (1993) ascribed the difference to increased helmet wearing. As the difference would seem to be unaffected by the general improvement in road safety or declines in cycling, it might appear to be persuasive evidence of the efficacy of helmets – until inquiries to the TAC revealed a similar trend for pedestrians. This is shown in Figure 2, the vertical line showing the start of the helmets law. Again, it would appear that the cause of the decline in the risk of head injury was changes in other conditions, not helmets.

Figure 2.  Per cent head injury, of accepted TAC no-fault claims, Victoria

Source of data: Transport Accident Commission, pers. comm. 1.12.95.

 

Usage

FORS discussed the fall in bicycle usage as shown by survey data from Victoria, NSW and Western Australia. For all three states, the declines in cycling that followed the helmet laws were underestimated and similar declines pre-law to post-law which had been measured in Queensland, the ACT and the Northern Territory were disregarded. FORS argued that reductions shown in surveys are not a proven result of helmet laws, which could only be found from much bigger surveys or over a longer time. “Unfortunately, long term data is not available”, it said, but it is government, not fortune, that was to blame for that. It was known in 1985 that cycling had declined when private schools compelled students to wear helmets[21], but FORS’s advice to its Minister on the compulsory helmets proposal did not mention this or the need for monitoring.[22]

Monograph 19

FORS’s Monograph 19 (1997) makes three arguments. The first is that compulsory helmets resulted in serious casualties to cyclists declining by more (33 cent) than all road users (23 per cent), from the 4 years “prior to compulsory wearing” (1987-1990) to the 4 years after (1993-1996), but if 1989, the last year before any helmet laws, is compared with 1993, the first year when all were in force, the respective declines are 31 per cent and 25 per cent, much less different. FORS says use of a 4 year period allows evening out of random variations from year to year, but the argument is specious because the numbers in each year exceed 1000. (By contrast, FORS’s submission to the review of the law in Western Australia, discussed above, claimed a reduction in fatalities by using numbers of less than 200.) Also, it is wrong to include 1990 in the base period because the helmets law came into effect in Victoria mid-year. As casualties to all road users in 1990 were 13 per cent below 1989, those to cyclists being unchanged, this results in further over-statement of the difference in the declines in the two groups from pre- to post-law. Also, FORS disregards the decline in numbers of cyclists. Taking this into account, it is clear that cyclists became worse off compared to other road users [164].

Second, FORS states that helmet wearing rates, as measured from casualty crashes, are negatively correlated with deaths and casualties to cyclists, but it provides no details of statistics or sources. The meaning of the claim is not clear and it is at odds with data on wearing rates of casualties [166].

Third, FORS finds from pooled data for 1988, 1990, 1992 and 1994 from its Fatality File that known wearers of helmets suffered fewer severe head injuries on average than non-wearers. It concludes that the absence of a helmet significantly increased the number of severe injuries by up to 21 cent. It is not clear that the finding has any clinical importance, it not being shown that the number of head injuries was related to fatality, nor even stated that head injury was the cause of death, and the data are confused by a change in coding practice by which multiple injury to a single region of the body was coded as multiple in 1990 but under that region in 1992.[23] Also, the data span a great increase in the wearing of helmets after compulsion, and a change in the standard. In 1988, hard shells were required, but from 1990 cyclists were able to wear soft helmets. A more apt description of FORS’s pooling of data is jumbling together and obscuring the important trends that are shown in Table 3 [165].

7. Conclusions

1. Fears of death and chronic disability from head injury led to compulsory wearing and the mandatory standard for bicycle helmets, but without their efficacy against the injury to the brain that has those dire results first being verified.
2. The public relies on government to verify efficacy, but the standard was modified in such a way as to compromise safety and the public was never warned.

3. Compulsory wearing was a response to the precedents of motorcycle helmets and seat belts rather than experience with cycling, which was showing decreasing risk.

4. Though new to the world, compulsory wearing was not introduced and monitored so as to measure its efficacy in practice, but it is evident that cycling has been discouraged to the detriment of health and the risk of casualty has increased.

5. A thoroughgoing review is needed of the policy of compulsory wearing of bicycle helmets, the mandatory standard for them, and associated processes of government. It should be open and independent of regulatory authorities.


[a] Federal Office of Road Safety, subsumed into Australian Transport Safety Bureau (ATSB) in 1999.


References

[1] Attewell R, Glase K, McFadden M. Bicycle helmet efficacy: a meta-analysis. Accident Analysis and Prevention 2001; 33: 345-352.

[2] House of Representatives Standing Committee on Road Safety. Report on motorcycle and bicycle safety. AGPS, Canberra, 1978.

[3] House of Representatives Standing Committee on Transport Safety. McDermott evidence, 1984, p. 1081

[4]House of Representatives Standing Committee on Transport Safety. Report 1985, para. 34.

[5] Minister for Transport Australia. Media release 115/84. 9.8.84.

[6] Department of Transport and Communications, pers. comm. 24.6.92

[7] Brown, Bob, Minister for Land Transport. Pers. comm. 21.2.92

[8] Mill, JS. On liberty and other essays. World’s Classics, New York, Oxford University Press, 1991.

[9] Evidence to the House of Representatives Standing Committee on Road Safety 28.6.77, p. 833.

[10]Submission to the motorcycle and bicycle helmet safety inquiry by the House of Representatives Standing Committee on Transport Safety, 23 May 1984.

[11] Federal Office of Road Safety, pers. comm. 25 September, 1997

[12] FORS, letter of 24 June 1992.

[13] Cyclists’ Rights Action Group submissions dated 21.7.05, 17.5.07 & 24.4.08.

[14] Reported in the Australian Left Review, April 1992.

[15] Walsh, Peter. Confessions of a failed finance minister, Random House Australia, Sydney, 1995, pp. 170, 227.

[16] The Hon. Joe Hockey MP, Minister for Financial Services & Regulation. Pers. comm. 12.5.2000.

List of enclosures

  1. Bicycle helmets: a scientific evaluation. In “Transportation Accident Analysis and Prevention”. Nova Science Publishers Inc. New York. 2008.
  2. Letter from national Road Trauma Advisory Council to ACT Minister for Urban Services, 15.1.92.
  3. E-mail message from Neill Patterson of Standards Australia, 30.4.03.

[17] Point 19 of ACT Cabinet Submission No. 3007, 23.3.92, released under the 10-year rule.

[18] Verbatim report of ATAC 80th meeting DA 90/23, at page 10.

[19] Manzie, D. Minister for Transport, Northern Territory. Media release 31.3.94.

[20] Hon. Neil O’Keefe, Parliamentary Secretary for Transport, letter to P. Mead, 10.8.94.

[21] Evidence to the House of Representatives Standing Committee on Transport Safety inquiry on motorcycle and bicycle helmet safety, 1985.

[22] Minister’s brief, ATAC 79th meeting (obtained under FOI).

[23] McFadden, M. Pers. comm. 28.10.98, FORS reference K98/167.

Finch, C.F., Newstead, S.V., Cameron, M.H. and Vulcan, A.P., Head injury reductions in Victoria two years after introduction of mandatory bicycle helmet use, Monash University Accident Research Centre report No. 51, July 1993.

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Submission to “CYCLING AUSTRALIA, THE NATIONAL STRATEGY”

In August 1998, Austroads Inc., a body comprising Australian transport authorities, invited comments on a consultation paper for a national cycling strategy. On behalf of CRAG, Bill Curnow submitted the following comments.


COMMENTS ON “CYCLING AUSTRALIA, THE NATIONAL STRATEGY, COMMUNITY CONSULTATION PAPER, AUGUST 1998″

The paper does not give any attention to the effects that compulsory helmet wearing laws have had on cycling.

The existing and proposed national strategy purport to be directed to public action to encourage safe cycling, but the initiative of all Australian governments in introducing helmet laws has had the effect of substantially discouraging it. By contrast, in the three calendar years before helmet laws, 1986 to 1989, total bicycle travel in Australia rose between 10 and 12 per cent each year[1], but without a commensurate increase in deaths and serious injuries to cyclists.[2]

Further, there are good grounds for concluding that the helmet laws have resulted in an increase in the rate of injury to the remaining cyclists, including head injury and brain injury in particular.

Discouragement of cycling

In Victoria, before the helmets law, some students at schools which compelled them to wear helmets chose to give up cycling instead.[3] It would therefore have been sensible for governments to ensure that the effect of compulsory wearing on numbers of cyclists was monitored accurately. This was not done, but some measurements of numbers were made, most being incidental to surveys of helmet wearing.

Official surveys, carried out shortly before and after the helmet laws, consistently showed substantial declines in numbers of cyclists in the following jurisdictions.

  • New South Wales: Matched surveys counted 6072 child cyclists (under 16) passing survey sites in April 1991, before the helmets law commenced to apply to them on 1 July, and 3887 and 3478 passing the same sites in April 1992 and 1993, declines of 36 and 43 per cent respectively.[4] Though the survey sites were not chosen as a representative sample, consistent across-the-board reductions in numbers counted were found at road intersections, at school gates and in recreational areas, as well as in Sydney, inner rural and outer rural areas. This implies that an almost identical result would have been obtained whatever the choice of sample sites and the declines stated here are realistic estimates of the reduction in cycling.
  • Victoria: Total bicycle use by children aged 5-18 decreased by 36 per cent from May/June 1990 to May/June 1991.[5] There were further decreases to May/June 1992, with teenage cycling in Melbourne showing by then a 46 per cent decrease from pre-law levels.[6]
  • South Australia: The Office of Road Safety, in reporting its evaluation of helmet legislation, said “Due to the disparate nature of the results from different sources, it is not possible to be conclusive about the effect of the requirement to wear bicycle helmets on the number of cyclists.”[7] The report noted that Harrison’s (1994) study of school children showed a 38 per cent decline in cycling from September 1988 to March 1994. This is likely to under- estimate the decline due to the helmets law because cycling is more popular in March than September in southern Australia. A review of this report may be found here
  • Western Australia: A 1992 survey commented that the numbers of children cycling to primary schools and numbers of recreational cyclists declined from 1991 to February 1992.[8] A 1993 survey presents limited data which show some decline in numbers of WA children cycling to school.[9] Its limited observations of “commuter” cyclists indicate an increase in numbers after the helmet law, but a decline of over 50 per cent for cyclists classed as recreational. Data from automatic counter surveys conducted by Main Roads showed a decline of 38 per cent from October-December 1991 to October-December 1992 in cyclists crossing the Narrows and Causeway bridges on Sundays. I obtained from Main Roads similar data for weekdays. These also showed sharp declines.
  • ACT: Automatic counters on bicycle paths registered declines from 1991 to a similar period in 1992 of about one third on weekdays and about half at weekends.[10]In Queensland and the Northern Territory, surveys were done by other organisations.
  • The Royal Automobile Club of Queensland conducted surveys, mainly of cycling to schools, which showed a decline of 22 per cent from 1990 to 1991. Owing to changes in the survey conditions, however, the real decline probably exceeded 30 per cent – and it occurred before the law was enforced.[11]
  • The Road Safety Council of the Northern Territory did surveys which showed there was little change just after the law in the numbers of children cycling to primary schools, but a decline of 17 per cent by the following year. Numbers cycling to secondary schools declined by 36 per cent soon after the law and were down 39 per cent within a year.[12] These figures would under-estimate the effect of the law because two of the schools surveyed had themselves introduced compulsory wearing before the surveys. One report on the surveys noted that secondary students had earlier advised that “if it was made compulsory to wear helmets they would decide whether to comply or not to ride. Information which the Council provided per letter to me on 15 October 1993 shows that the number of “commuter” cyclists declined by about half. The numbers are as follows:Surveys pre-law, Aug. 1990, Apr. 1991, Aug. 1991: 252, 222 and 350 respectivelySurveys post-law, Apr. 1992, Aug. 1992, May 1993: 142, 122 and 131 respectively.

Bicycle casualties, pre- and post-law

Contrary to popular belief, there is no good evidence that compulsory helmet laws have improved the safety of cycling, indeed the contrary is indicated.

In New South Wales, numbers of head injuries and other injuries to child cyclists before and after the helmets law are shown in Table 1, with, in brackets, my calculation of the numbers if they had declined in proportion to the number of cyclists counted in the above-mentioned surveys.

                                TABLE 1 

       HOSPITAL SEPARATIONS, INJURIES TO NSW BICYCLISTS UNDER 16
                   (source NSW Department of Health)

    Year ended    Head        Incr.   Other       Incr.
    30 June       Inj.        risk    inj.        risk

    1991/91       384                 926
    --------------------------------------------------law for <16 y.o
    1991/92       272 (246)           815 (593)
    1992/93       273 (219)   +24%    893 (528)   +68%

Contrary to a general trend to improved road safety for other road users, these data suggest that for those still cycling after the law the risk of serious injury, both to the head and otherwise, increased substantially. Robinson’s analysis put it that “if similar numbers of child cyclists had been on the roads in 1993 as before the law, deaths and serious injuries to child cyclists would have increased by 21 per cent, compared with a decrease of 21 per cent for child pedestrians and 20 per cent for child road users in general.”[13] But the NSW Roads and Traffic Authority, conveniently disregarding the decline in the number of cyclists, interpreted the data as “a substantially larger decrease in bicycle head injuries than other types of injuries, and increased helmet wearing has had a positive effect on the head injury rate.”[14]

For Victoria, Robinson’s analysis of statistics suggested that for the same cycle use as before the law there would now be no fewer head injuries and more total injuries to children. In the ACT, admissions of cyclists to public hospitals hardly changed. The numbers advised by the Department of Health per letter of 26 March 1996 were 89 for fiscal 1991/2, immediately before the law, and 87 and 88 in the following two fiscal years. This suggests the risk of serious injury to the remaining cyclists increased by more than half.

Available evidence for other jurisdictions is less detailed, but that which I have seen also suggests that the helmet laws have been counterproductive.

Explanation of a counterproductive measure

Though helmets protect soldiers and workers from small, fast-moving objects, their testing and design are unsuitable for when the person is moving. No allowance is made for heads being connected to bodies and only the cushioning effect of a direct impact to the top of the head is measured.

Most impacts to the head in accidents are to its front and sides. Like a knockout blow to the jaw in boxing, they impart a rotational force, which theory and experiments with animals have shown is the main cause of brain injury, not direct impact.

Australian research in 1987 showed that the added mass of a helmet may actually increase rotational force, and to minimise it helmet shells should be very stiff.[15] Instead, to make wearing more acceptable the Australian standard for helmets was degraded on political advice to allow cheaper soft shells. These grab the surface upon impact, rotating the head.

In its 1994 inquiry on head and neck injuries to footballers, the National Health and Medical Research Council examined evidence for the efficacy of bicycle helmets. It concluded that helmets may possibly reduce soft tissue injury, but “the use of helmets increases the size and mass of the head. This may result in an increase in brain injury.” As no similar inquiry has ever been made on head injury to cyclists, legislators got no proper advice before passing helmet laws, thereby risking increased danger to cyclists.

More detailed explanation and references are contained in an article of mine which was published in Current Affairs Bulletin, April/May 1998, pp. 18-25 and here

Unhappily, some government authorities, seemingly unwilling to accept responsibility for introducing a counterproductive measure and to take action to remedy its detrimental effects, namely discouragement of cycling and reduction in safety to the remaining cyclists, have misrepresented data so as to under-estimate or discount such effects. One example is given above and others are mentioned in my CAB article.

Conclusion

As the compulsory helmet wearing laws have done more to discourage cycling and increase its hazards than any other measure, any realistic national strategy for encouraging safe cycling and reducing the severity of injury to cyclists must consider recommending their repeal. The first requirement, we suggest, is an open inquiry conducted by independent persons of suitable competence, with provision for the public to make input, so ensuring that all available knowledge is brought to bear.

I commend these comments for your earnest consideration, look forward to your response and stand ready to provide, as far as I am able, such further information as you may require.

Yours sincerely, Bill Curnow President

References

[1] Department of Transport and Communications, SPOKES, Information for cycle-conscious communities, Canberra,1993, p.1.

[2] Federal Office of Road Safety, Road Injury Australia, quarterly bulletin, June quarter 1997

[3] Evidence given to House of Representatives Standing Committee on Transport Safety, 1985, p.1078

[4] Smith, N.C. and Milthorpe, F.W., An observational survey of law compliance and helmet wearing by bicyclists in New South Wales – 1993, for the New South Wales Roads and Traffic Authority, Sydney, 1993.

[5] Cameron, M., Heiman, L. and Neiger, D., Evaluation of the bicycle helmet wearing law in Victoria during its first 12 months, Report No. 32, Monash University Accident Research Centre, Melbourne, July 1992, p.6.

[6] Finch, C.F., Heiman, L. and Neiger, D., Bicycle use and helmet wearing rates in Melbourne, 1987 to 1992: the influence of the helmet wearing law, Monash University Accident Research Centre report no. 45, February 1993, pp. 35, 36.

[7] Marshall, J. and White, M., Office of Road Safety Report Series 8/94, South Australian Department of Transport, Walkerville, South Australia, 1994, pp.i,11.

[8] Healy, M. and Maisey, G., The impact of helmet wearing legislation and promotion on bicyclists in Western Australia, Traffic Board of Western Australia, Perth, 1992.

[9] Heathcote, B., Bicyclist helmet wearing in Western Australia: a 1993 review, Traffic Board of Western Australia, Perth, 1993.

[10] Ratcliffe, P., Bicycling in the ACT – a survey of bicycle riding and helmet wearing in 1992, ACT Department of Urban Services, Canberra, 1993, p.5.

[11] Wikman, J. and Sims, C., Bicycle helmet wearing surveys 1990 and 1991, Royal Automobile Club of Queensland, Brisbane.

[12] Van Zyl, R. Bicycle helmet wearing in the Northern Territory, May 1993, and 1993 bicycle helmet survey report, Road Safety Council of the Northern Territory, GPO Box 1176, Darwin.

[13] Robinson, D.L., Head injuries and bicycle helmet laws, Accident Analysis and Prevention, Vol.28, No. 4, pp463-475, 1996

[14] Roads and Traffic Authority, New South Wales, The current state of bicycle riding, June 1994.

[15] Corner, J.P., Whitney, C.W., O’Rourke, N. and Morgan, D.E., Motorcycle and bicycle protective helmets: requirements resulting from a post crash study and experimental research, Federal Office of Road Safety report no.CR 55, Canberra 1987.


The Australian Minister for Transport and Minister for Health jointly launched Australia cycling, the national strategy on 19 February 1999 and Austroads Inc. has since published the strategy document, see http://www.transport.sa.gov.au/invplan/bikesth/bikesth_fr.htm.Though the material CRAG submitted was supported by 15 references to published sources, the strategy document neither reflects nor refutes any of it. On behalf of CRAG, Bill Curnow therefore wrote to Austroads to convey comments on it, as follows.


AUSTRALIA CYCLING – THE NATIONAL STRATEGY

I write to convey this group’s comments on Australia cycling – the national strategy.

The strategy rightly recognises that people’s health and the environment would gain if they cycled more, but does not examine deterrents to that and action needed to deal with them. We suggest that the two main deterrents are the negative attitude towards cycling in this country, as mentioned in the consultation paper for developing the strategy, and, flowing from that, the laws for compulsory wearing of helmets.

In Australia now, cycling is not accepted as a form of local transport deserving serious consideration. Bikes are seen as children’s toys and respectable for adults to use only for competitive sport or recreation; but for transport the common assumption of other road- users is that cyclists lack road sense and can barely be tolerated, and then only if they wear helmets to minimise the cost of their accidents to the public health system.

A realistic strategy must deal with the fact that governments’ own actions have strengthened this attitude and discouraged cycling. Official promotion of helmets did it by exaggerating the dangers of cycling, and helmet laws have had the opposite effect of the strategy’s Objective 4, “to increase bicycle use while simultaneously reducing the casualty rate.” A legitimate deduction from the evidence we submitted is that repeal of the laws would soon provide most of the increase needed to achieve the strategy’s goal of doubling bicycle use, and reduce the rate of serious casualty per cyclist. By contrast, the effects of the measures proposed in the strategy are conjectural.

The public inquiry we suggested is now needed to bring reality to the strategy, in place of irresponsibly concealing the effects of the helmet laws. We request your comments.

Yours sincerely, W.J. Curnow, President

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Submission to the National Road Transport Commission

Entrenchment of Helmet Laws in Australian Road Rules

by Bill Curnow
18 August 1997

Under an agreement by all governments in Australia, the National Road Transport Commission is developing Australian Road Rules that all road users in Australia will need to follow. Draft rules were released for public comment in 1994. In the light of comments received, a proposed rule to compel horse-riders to wear helmets was deleted, but, despite 62 per cent of replies opposing compulsory helmets for adult cyclists, it was retained, in rule 14.14. If approved by ministers, this rule will have the effect of entrenching compulsory helmet laws throughout Australia.

The reason given for retaining rule 14.14 was “safety considerations and the experience of States and Territories where helmet wearing is presently required.” CRAG requested the supporting evidence. In response, the NRTC cited two studies:

  1. Marshall, J. and White, M. (1994) Evaluation of the compulsory helmet wearing legislation for bicycles in South Australia, Office of Road Safety, SA Department of Transport; and
  2. King, M. and Fraine, G., Bicycle helmet legislation and enforcement in Queensland 1991-1993: Effects on helmet wearing and crashes, Road User Behaviour Section, Road Transport and Safety Division, Queensland Transport.

The NRTC cited Marshall and White as claiming: “a 12.1 per cent decrease in hospital admissions for cycling injuries that are potentially preventable by the use of a bicycle helmet” and King and Fraine as claiming that helmet laws have had some effect in reducing injuries beyond that associated with any decline in cycling.

CRAG then made the following submission to the NRTC, including analysis showing that these claims are not supported by the evidence. The submission read as follows:


CRAG’s Submission to the NRTC

In response to your letter of 27 September 1996 about bicycle helmet laws, I am writing to provide you with some more information on studies which show that injuries to cyclists have not declined in proportion to the decline in cycling, and to comment on the two studies which you cited. First, however, I want to say that there has never been a sound basis for the helmet laws.

No sound basis

There are, I suggest, three basic requirements for any legislation in a democratic society: first, the existence of a social ill requiring a legislative remedy; second, proven efficacy of the proposed remedy; and third, compliance with international standards for laws. Governments seem to have implicitly assumed head injury to cyclists to be a social ill, but adduced no evidence of any increase in it. In fact, deaths of cyclists in Australia had been declining by about 1 per cent a year in the 20 years before the first helmet laws; hospitalisations according to police data changed little from 1988 to 1990 before helmet laws; and, in the ACT, admissions of cyclists to public hospitals for head injury in the two years before the helmets law were much lower than a decade before.

The efficacy of helmet wearing in preventing head injury had not been established by proper scientific studies, and no consideration was given to the likely adverse effect of discouragement of cycling. The complex matter of efficacy is discussed in the paper attached as A.

International standards for laws in democracies proscribe laws to compel self-protection, there being no question of harm to another person, and laws which discriminate arbitrarily – see the Universal Declaration of Human Rights 1949 and the International Covenant on Civil and Political Rights, to which Australia has acceded. The helmet laws contravene these standards by compelling people to adopt particular means to protect their own persons. Also, the stated rationale for the helmet laws is to save on the social cost of caring for injured cyclists. Apart from the point of principle – where do you draw the line on restricting individual behaviour to save on costs of health care? – 17 times as many motorists as cyclists died from head injury in 1988, and FORS report CR59 recommends that motorists should wear protective headgear. To compel only cyclists to do so is arbitrary discrimination.

States and territories did not give due weight to these requirements. Enactment of helmet laws was of course to their financial advantage following Prime Minister Hawke’s 1989 offer of Federal funds for roads as a quid pro quo, but belief in the efficacy of helmet wearing as a safety measure would seem to have been decisive. Such efficacy may seem obvious, and government propaganda from the early 1980s reinforced that impression, but, as shown in the attachments hereto, it has no sound basis.

Helmet laws counter-productive

Dorothy Robinson, a biometrician at the University of New England, has adduced evidence in “Head injuries and bicycle helmet laws”, Accident Analysis and Prevention vol. 28, No. 4 pp. 463-475, July 1996, which shows that the greatest effect of the helmet laws has been to discourage cycling. For NSW, she found that neither the number of injuries to the head, nor to other parts of the body, declined as much as the estimated amount of cycling. For Victoria, her Table 5 suggests that, “for the same child cycle use as before the law, there would now be no fewer head injuries and more total injuries”.

Papers which Dorothy Robinson and Bruce Robinson, no relation, will present at the Velo Australis international bicycle conference in Fremantle on 30 October [1996] will contain further evidence on these lines.

I attach as B my own analysis of data for NSW which supports the following appraisal: “Contrary to the general trend to improved road safety, for those still cycling after the law the apparent risk of head injury increased by up to 25 per cent and other injury by up to 69 per cent.”.

This is consistent with a statistical study of 8 million casualties over 15 years in the USA by Rodgers, Journal of Product Liability, Vol. 11, pp. 307-317, 1988. He concluded that “there is no evidence that hard shell helmets have reduced the head injury and fatality rates” and “the bicycle-related fatality rate is positively and significantly correlated with increased helmet use.” My appraisal is also consistent with current theory of head injury as referred to in, for example, the National Health and Medical Research Council report cited in my letter of 3 September. Quoting from it:

“The mechanism of the production of an injury to the head is complex. It involves not only the effects of a direct impact to the skull and its coverings but, more importantly, the effects of the relative motion of the brain within the skull in response to that impact. This relative motion of the brain creates the shearing and rotational forces on the individual neurones which results in axonal stretching and diffuse brain injury. Concussion differs from the more severe diffuse axonal injury in that it represents the mild end of the spectrum of head injury, where the symptoms are transient and the injury does not necessarily result in structural brain damage.

“The addition of a helmet to the head will increase both the size and mass of the head. This means that blows that would have been glancing become more solid and thus transmit increased rotational forces to the brain. Because helmets distribute the force from focal impacts across a larger area, this may result in reduced fracture/laceration injuries but may increase diffuse brain injury.”

Not only has the risk of head injury to cyclists increased, but it is likely that the incidence of brain injury has increased disproportionately.

Studies to evaluate compulsory helmet laws- general

To ascertain the efficacy of compulsory helmet wearing as a public health measure would require a rigorous scientific study based on the testing of a coherent theory including mechanisms of brain injury, vide the NHMRC’s report, this being the injury that protagonists of compulsory helmet wearing profess to be mainly concerned about. Detailed and accurate data are also required. Such data were not available when the helmet laws were decided upon. As the Victorian Government’s submission to the House of Representatives Standing Committee on Transport Safety in 1985 stated: “the incidence of bicycle helmet use has not yet reached a sufficiently high level anywhere in the world for a scientific examination of helmet effectiveness in injury reduction to be undertaken”. Nevertheless, that inquiry recommended compulsory helmet wearing.

The decision-making process that led to the helmet laws did not include any evaluations based on theory of brain injury. The testing of helmets in accordance with the Australian Standard is of direct impacts, not impacts that generate rotational forces. Also, as our FOI requests have shown, the Federal Department of Transport made no evaluation of the efficacy of helmets and gave no advice on it to the ministers of the then Australian Transport Advisory Council who decided on compulsory helmets. Nor did the Department seek advice from the NHMRC or any other health authority. The helmet laws are a response to undue public fears and unfounded belief in the value of helmets.

Despite their unsound basis, the compulsory helmet laws in Australia, the world’s first, provided the best opportunity to that time to evaluate the efficacy of helmets in practice. Changes in cyclists’ behaviour in response to the laws, in particular by cycling less could have been measured. Monitoring systems could have been established to measure this, helmet wearing and casualties, including fine detail of head injuries. All data could have been matched and comparable throughout Australia. Then an accurate scientific evaluation might have been possible. It did not happen. Instead, state transport authorities, parties to introducing the laws, have made evaluations which are simply belated attempts to justify them. Their data, often fragmentary, were collected for other purposes. Such an evaluation is contained in a leaflet issued by the Roads and Traffic Authority of NSW in 1994, copy attached as C. Such also are the empirical studies by Marshall and White in South Australia and King and Fraine in Queensland.

NSW leaflet

The leaflet is full of inaccuracies and misleading statements, for example:

  1. The 1988 report of the Staysafe Inquiry referred to in the first sentence of paragraph 2 noted “Head injuries sustained by 85% of bicyclist fatalities”. In Australia in that year the figure was similar, 80%. What reason can there be then for attributing the statement in the second sentence to 1989 research in America, other than to make it appear that that research, indicating risk reductions of 85% and 88%, supported the Staysafe Inquiry? Also, the American research was empirical only and has been criticised – see for example Robinson’s paper cited above.
  2. In the section headed “Effectiveness of wearing bicycle helmets”, the numbers in brackets in the second sentence are not reductions in the percentages of head injuries as stated; they are percentage reductions in numbers of head injuries.
  3. All statements in the section are distortions because no account is taken of the post-law decline in cycling. It is not even mentioned. When account is taken of reduced cycling, the apparent risk of head injury per cyclist increased, contrary to the conclusion of the last sentence – unless “positive effect” is interpreted as an increase in the head injury rate!

Studies in South Australia and Queensland

Detailed comments on the study in South Australia by Marshall and White are attached as D. A few points are:

  1. The decision by Cabinet in 1984 was premature. Note the reference to Dorsch’s estimate of the chance of death decreasing by a factor of 19. In evidence to a House of Representatives committee in 1985, Mr Hallion, an officer of the S.A. Department of Transport, said studies using Dorsch’s results “show that universal helmet usage would reduce bicycle fatalities by up to 75 per cent and serious injuries up to 40 per cent”, but Dorsch herself refuted this in later evidence – see Attachment A hereto.
  2. South Australian authorities did no systematic monitoring of numbers of cyclists – as they say, “Due to the disparate nature of the results from different sources, it is not possible to be conclusive about the effect of the requirement to wear bicycle helmets on the number of cyclists”. They guessed, on page 32, that the decrease in the number of cyclists was the same as the decrease in the “non preventable injuries”, though it was substantially greater in NSW – see Attachment B As their guess is a factor in their calculations of “helmet effect”, those too are only guesses, and the finding cited in your letter is unsupported.
  3. There is insufficient detail about head injuries to be of use for an evaluation in the terms of the NHMRC report. No tests of statistical significance were done.

The study in Queensland by King and Fraine began by assuming that the road safety benefits of helmet wearing are well established. Not so; the studies they cited all have serious deficiencies – see Attachments A and B.

King and Fraine also lacked accurate data on the post-law decline in cycling. They too assumed, implicitly, that it was equal to the decline in injuries other than to the head. Their data on injuries are fragmentary, many of the numbers are small and no tests were done for statistical significance. Also, they chose to use restricted data from the QISPP, not comprehensive data from the Queensland Road Crash Database from which the following table has been compiled.

Table: Cyclists Killed or Hospitalised with Head Injury (QLD)

    YEAR                   1990   1991   1992   1993   1994   1995p
    1) Concussion            19     21     23     24     29     30
    2) other intracranial    39     28     42     20     20     17
        Subtotal - 1+2       58     49     65     44     49     47
    3) Skull fracture        16     20     23     15     14     15
    4) Open wound to head    47     27     33     20     14     18
    Other injury            202    205    209    162    163    163

Simply because the legislation discouraged cycling, a commensurate decrease in casualties could be expected. Queensland authorities did not measure the decline in cycling, but it is likely to have been about 40 per cent, similar to NSW and Victoria. It would explain the decrease in skull fractures and open wounds to the head without assuming any benefit from helmet wearing.

The numbers for brain injury, concussion plus other intracranial, were higher in 1992 than in 1990, and from 1993-95 little different than in 1991. With fewer people cycling, the apparent risk of brain injury to the remaining cyclists therefore increased substantially. This is consistent with scientific understanding of the mechanism of brain injury as cited by the NHMRC, and with experience in NSW – Attachment B.

Lack of evidence of reductions in head injury has been noted elsewhere. In New Zealand, researchers found “increased helmet wearing has had little association with serious head injuries to cyclists as a percentage of all serious injuries to cyclists.” In Victoria, the proportion of head injured cases in the third year of the helmet law was found to be no different from the trend predicted by the model using pre-law wearing rate trends.

Consequently, the conclusion of King and Fraine that the helmet legislation has been effective in reducing the incidence of head injuries is not supported. I can provide further comment on their study if you wish.

Requests for inquiries

We have made several requests for the compulsory helmets policy/laws to be reviewed, but governments have adopted a defensive attitude.

In the ACT, we were able to present to the Chief Minister personally evidence that the helmets law is counter-productive. In response, she told us she “would be very happy for a legislative assembly committee to be established to examine this matter” and that it would be necessary to gain the support of MLAs for this. Some have stated their support, but Mr De Domenico, who is the Minister for Urban Services and responsible for the helmets law, responded as follows:

“The proposed Australian Road Rules … are being developed … and will automatically become ACT law under an existing Heads of Government agreement. Any amendment which may be made to the bicycle helmet laws in the Traffic Act 1937 will be superseded at the time of introduction of the ARRs. In light of the above, I am unable to support your request for the establishment of a review committee to examine this law.”

Mr De Domenico’s support for the helmets law goes back to its introduction in April 1992, when he was in opposition. The then minister in his second reading speech stated “There is overwhelming evidence that shows the lifesaving benefits of bicycle helmets.” Our FOI inquiries have since revealed that his department had done no evaluation of the efficacy of helmet wearing. Its only evidence was a short paper it received from the Federal Office of Road Safety a month before which claimed such “overwhelming evidence”. In the debate on the bill no MLA questioned this. We have pointed out the lack of evidence to Mr De Domenico, but to no effect.

Mr Whitecross, now leader of the Labor Party that introduced the helmet law when in government in 1992, said “Labor will not support an enquiry until strong evidence is produced that cycle helmets increase the risk of injury”. This is a reverse onus; governments have never produced evidence that helmets reduce the risk.

Conclusion

There has never been a sound basis for compulsory helmet wearing for cyclists. Governments acted prematurely without proper advice, in particular on the critical matter of the efficacy of helmet wearing and its adverse effects.

The helmet laws do not meet international standards for laws, as they infringe civil liberties and discriminate unfairly compared to other road users.

Compulsory helmet wearing has proved to be a counter-productive measure. Its main effect has been to discourage cycling, but, in states where sufficient data on the post-law decline of cycling are available, injuries have declined less than commensurately. This means that the apparent risk of injury to the remaining cyclists has increased. The apparent risk of head injury has not declined, and probably increased, and it is likely that the risk of serious brain injury has increased disproportionately.

There is evidence that transport authorities, for example the Roads and Traffic Authority of NSW, are suppressing and misrepresenting the truth about the effects of compulsory helmet wearing. This is a serious matter as the body of cyclists is largely composed of children and the disadvantaged. Such persons are not capable of making a critical evaluation of the merits of helmet wearing and necessarily have to trust in the advice of government authorities. This is as it should be, but authorities have betrayed this trust. It is clear then that radical reforms of their mode of operation are needed. A particular need is for a strengthening of capacity in science.

Another matter of concern, resulting perhaps from the lack of knowledge of scientific method, is the refusal of transport authorities to reconsider the helmet laws in the light of new evidence. Consequently, the original errors are being compounded, and the nation is the loser.

Finally, transport authorities seem to have the attitude that the onus is on opponents of the helmet laws to show that they are harmful. This attitude is the opposite of democratic practice. The onus should be on governments to show beyond all reasonable doubt that compulsory helmet wearing has substantial net benefits. Even if the studies in South Australia and Queensland were sound, they would not be enough when other studies show there is net harm.

Attachments

Attachment A – Efficacy of Helmet Wearing For Cyclists.
Attachment B – Cycling and Injuries in New South Wales.
Attachment C – NSW Leaflet.
Attachment D – Review of South Australian ORS Report 8/94.


The NRTC’s Response

The NRTC’s response noted that the Australian Road Rules are based on existing law. Only where there were differences in laws between jurisdictions, or a strong desire by the parties involved have the ARRs diverged from existing practice. Representatives of state and territory road authorities have indicated a desire to maintain compulsory helmet wearing laws.

CRAG then pointed out that our submission discredited states’ claims that their experience is that helmet laws increase the safety of cyclists. It seemed, however, that the NRTC had a co-ordinating role only and could not act directly pursuant to our submission. In the interests of facilitating evaluation of available knowledge on the efficacy of helmets, CRAG therefore requested the NRTC to circulate our submission to transport authorities and invite their comments. The NRTC did this. CRAG suggested that if the serious doubts raised about the efficacy of the helmet laws are not refuted, then no responsible authority concerned about the safety and welfare of cyclists could support their being entrenched as Australian Road Rules.

Subsequently, CRAG made requests direct to state and territory road authorities that their comments should include the evaluation, upon which their compulsory helmet wearing law is based, of the evidence of efficacy of helmets in protecting cyclists from injury. CRAG reported the responses received to the NTC on 14 August 1997, as follows.


State and Territory Responses

The responses received are as follows, in summary:

Victoria, by letter of 11 July 1997: “… your letter of 20 June requesting the information on which the decision to introduce compulsory helmet wearing was made. Please find enclosed a copy of the Regulatory Impact Statement that was prepared when the compulsory helmet law was introduced in Victoria in 1990.” I replied pointing out that that statement did not include any evaluation of the evidence of efficacy; it simply assumed, on page 24, that helmet wearing is efficacious. Victoria’s response, by letter of 31 July, was simply to say “The evaluations of efficacy used in justifying the introduction in Victoria of compulsory helmet wearing law were those published papers and reports which were available at the time.”

Comment: This, of course, is a non-answer. I might add that published papers at the time included many which cast substantial doubt on the efficacy of helmets, or on published evaluations of their efficacy – see papers cited in my submission to you of 29 October 1996, by Rodgers, Dorsch, Corner et al and the Victorian Government itself. In other words, the literature shows there was much disagreement at the time about the efficacy of helmets in protecting cyclists from injury. There still is.

Queensland, by letters of 20 June and 11 July 1997: “There appeared to have been a reduction in cycling following the introduction of helmet laws, but it was noted that there was a much greater reduction in injuries to the head than injuries to other parts of the body. We consider this evidence to be sufficiently compelling to justify retention of bicycle helmet laws.”

Comment: Another non-answer; their (unsound) evaluation is post-law.

Western Australia, by letter of 8 August 1997, also could provide only a post-law evaluation: the Report on compulsory helmet wearing for bicyclists, and other bicycling issues by the Select Committee on Road Safety of the Parliament of Western Australia, dated 12 May 1994. The report’s conclusion that helmet wearing reduces the severity of head injuries and saves lives is not supported by the data in it.

Northern Territory responded by email on 23 July, simply to say it had introduced compulsory helmet wearing as part of the Federal Government’s Blackspots Program, and went on to describe the legislation. There was no evaluation.

New South Wales, South Australia, Tasmania, and the ACT have provided no response, despite reminders. Also, in NSW, official claims have been promulgated to the effect that helmets protect from brain damage, but I have received no substantive reply, despite reminders, to my letter of 26 May 1997, copy attached, requesting the supporting knowledge.

In sum, no government in Australia has provided the evaluation, upon which the compulsory helmet wearing law is based, of the evidence of efficacy of helmets in protecting cyclists from injury. Against this, theory of brain injury and experimental evidence cited by Corner et al and the National Health and Medical Research Council, see references 31 and 24 in Attachment A to our submission of 29.10.96, suggest there is no good reason to expect helmets to protect from serious injury, and that they may aggravate brain injury. The obvious deduction is that governments do not have sound evidence of the efficacy of helmets. How, then, can helmet wearing laws be justified?


Conclusions – as at 18 August 1997

Governments in Australia have not shown that the wearing of helmets is beneficial in reducing injury to cyclists.

Indeed, theory and experimental evidence suggest that helmet wearing is likely to increase brain injury.

Surveys, where they have been carried out, have shown that numbers of cyclists declined by around 40 per cent following the introduction of compulsory helmet wearing laws, but injury and head injury to cyclists declined less than commensurately, indicating increased risk of injury.

The helmet wearing laws are therefore inimical to health and safety. The proposed entrenchment of them would be counter-productive.

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