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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