War and Peace 1 : Helmets, deep breath!

This is going to be controversial. You might be outraged at what I say. Try to be dispassionate and understand the evidential basis for my claims. Try to look beyond the soundbites. Try not to fall back on anecdotes. Disagree with me by all means, but approach this with an open mind. This isn’t meant to be provocative, though I can see why you’d feel provoked. It’s about a discussion that does the rounds as regular as clock work. One which polarises opinion. One in which science, physics and tall tales compete for attention. One which is divisive. But it doesn’t have to be that way.

And at the outset let me say this. I wear a helmet whenever I’m on a bike. Always have, always will. You’d think that would make me a helmet evangelist. You’d be wrong.

I’ve fallen off a bike very few times in my life. I could probably count the number of falls on one hand. The first time was when I was about 8. I was pedalling a Raleigh Strika down the lane at the back of my house. The brakes were pretty good, indeed, there was a very effective trick style coaster brake, superb for pulling skids. But, on this particular day, I decided to see what would happen if I stuck my foot in the front wheel in order to stop. The results were predictable. What was not was just how high I went and how hard I fell. Straight onto my face. I was covered in blood. My mother was hysterical. It took a while to heal. I wasn’t wearing a helmet that day. I’m not sure if I even owned one.

About 4 years ago I had my only “serious” road cycling accident. 80 miles into a 100 mile charity ride, sprinting uphill I collided with the rear of the guy in front. He wobbled but stayed upright. Then the chap behind me hit me and we went sprawling. I somersaulted and hit the carriageway. He veered off to the left and scraped his leg. My helmet was dented, I felt a bit dazed. I retrieved my bike from the fast lane of a dual carriageway. I have no idea how I wasn’t killed such is the nature of that road. Luck smiled on me. That evening I was sick, once. Was it concussion? I have no idea. My head didn’t hurt. But my helmet was broken. Very clearly that helmet saved my life.

Actually, I believed that myself for a while. But it’s probably not true. Not on any evidential basis anyway. It is simply not possible to extract, from my experience, any scientific finding other than my helmet was broken. Step away from this for a minute. Would my skull have been as broken as my helmet if I had not been wearing one? I cannot say. Would I have been concussed or knocked out without one? It’s a possibility, but it cannot be scientifically tested in retrospect. In fact, it’s pretty difficult to test it in anticipation either. But we’ll come back to that later.

Was I happy that I was wearing one? Absolutely. Did I perceive that I derived additional protection? Yes. Do I believe that I would have been killed without it? No. Would I ever go without one? In some circumstances. Do I advocate a legal requirement to wear a helmet? Unequivocally no. So, let’s get to it.

Evidence, is there any?

This is what the CTC have to say

This is what “Cycle Helmets” have to say

This is what Bad Science have to say

MIPS, a new technology, any better?

Helmet Certification : EN1078

and

Helmet Certification explained in more detail

I could write a lot about evidence here. There’s a lot to write. There is little doubt, in the opinion of those who have fallen off a bike, that a helmet will have saved their life or, at least, contributed to a lesser injury. That last link is quite interesting. Have a look at what’s needed for a cycle helmet to pass EN1078. It’s not much, and much of it is simplistic and doesn’t really bear any relation to real life.

Scientifically, much of that is hard to confirm. Anecdotally, it’s pretty easy. Read any forum and you’ll see a suggestion of banging your head against a wall with and without a helmet to test helmet efficacy. That’s a pretty meaningless comparison overall in the context of road cycling. Ditto taking a claw hammer to your head in any other test.

The problem with evidence is that it’s hard to come by. Dead or brain damaged cyclists may well have suffered similar injuries with or without a helmet. Indeed, death is normally caused by a contribution of injuries and other factors. Any cyclist who has “escaped” injury may or may not have done so if they had not been wearing a helmet. None of this is predictable and very little of it is scientifically reproducible.

There is some evidence that suggests that helmets are very useful at speeds up to 12 mph, or so. That’s the type of accident where, in effect, you fall off your bike. That much seems clear from EN1078 certification and the height/forces tested. In my case I was sprinting up hill. A little faster than 12 mph, as I am a sprinting God, but not that much faster. Anecdotally, I would say that, at that speed, the helmet helped me or, at least, I was no worse off. At faster speeds there is little evidence to suggest that a cycling helmet works at all. A lot of helmet warnings specifically state that they can be helpful in solo riding accidents at speeds up to 12 mph (about 20 kmh). That’s where they are the most helpful. Yet, in countries like Denmark with such a massive amount of cyclists doing up to 20 kmh they are so rarely seen. In Australia, home of the mandatory cycling helmet law, they are currently considering a relaxation of the rule for “leisure cyclists,” the ones going less than 12 mph. Good old science and evidence.

And with all of that in mind we turn to real hotly contested point. There’s a belief that, if a helmet helps up to 12 mph, then it must work above 12 mph even though its protective ability might be incrementally reduced. But there’s little evidence for this. Chuck in collision with something else which may or may not be going in the same direction (i.e. cars) and it becomes more complex. And then you have types of injury. It’s easy to replicate a particular force striking the top of helmet. It’s harder to replicate oblique impacts, rotational forces or incidents that are “other than the norm.” It’s hard to make one size fit all. Compare how we test seat belts. That’s pretty easy, mostly. We have enough data to be able to test in different situations. It works. Easy to replicate, generally. Helmets? Much harder to do so.

And then there’s the mechanism of the protection. How do helmets work? What proof is there. My helmet was split. Part of the Styrofoam was no longer in connection with another part of it. But there was absolutely no measurable compression of the foam whatsoever. None. The force of the impact was not concentrated on a single point. Indeed, that distribution of impact force appears to be their main benefit. My head had still hit a solid object, just one slightly softer and more amenable than tarmac. If there had been a sharp object on the road then, provided it did not co-incide with a vent hole, having something between me and the road is likely to be useful. There’s a lot of common sense at play here. But it’s all still anecdotal and not really scientific.

Indeed, consider this. The evidence that we are presenting that a product has worked perfectly is because it is broken. You don’t see that very often in safety. A claim that a product has worked because it’s now in lots of bits. And, at the very best, it’s broken at the time of initial impact. Everything else happens afterwards with a broken helmet. Yet the myth persists that it must have worked. I tend to believe that it helps. It distributes force a little better, protects you from sharp objects (as long as they don’t just go through the many vents), gives you something extra. What I don’t believe, is that it offers very much.

Some scientists will say that current construction offers nothing at all. No initial deceleration of forces, nothing. You might get less scrapes and scratches. Indeed, a colleague of mine bounced into a tree while mountain biking a few days ago. His helmet was a bit cracked, his head protected. His back is in bits now though, due to the impact down his spine. His view? He was happy to be wearing it, thought he may have had a bit more of a sore head, possibly mild concussion. Did it save him? He has no evidence that it did. Indeed, he agrees with my critical view of the evidence system.

A neurosurgeon’s view

That’s an interesting one. There’s no discussion there of impact protection per se. But the thrust of the discussion is that there are other potential effects that could be worse than impacts. Have a read, see what you think.

And a very entertaining talk here. Take a minute to absorb that. Wonder why we don’t wear helmets when walking down the street. There’s evidence there. It’s more dangerous. And helmets work at that speed. Apparently. Watch what he says at 11 minutes. That’s right, isn’t it? A sea change? The correct perspective? Why are we ensuring the the vulnerable are protected, ignoring the ones who cause the damage and, quite weirdly, excluding the largest groups of vulnerability from the discussion at all?

There is some evidence out there. Well, there’s statistical data at least. Most of it relates to desk top studies of accident and emergency admissions. There’s a flaw there, for a start. Any such study ignores those who did not attend hospital in relation to the injury they suffered. And in relation to those who did? Well, it’s all rather inconclusive.

Department for Transport Summary

Note the language. There is a complete absence of the word would. All of the claims are couched in terms of “could have” or “may.” Forensics are useful. But they can’t substitute for viewing the accident or interviewing the victim. Quite difficult if they are dead. In relation to the studied fatalities it’s not clear whether, in each case, a pathologist was asked to comment, or a neurosurgeon. What was the content of the reports?

There’s evidence it seems of a potential small reduction in cases if a helmet had been worn. A small reduction but statistically significant. And if something is statistically significant it ups the risk factor. And society finds a way to mitigate against it and protect the vulnerable.

But, in the year of the Towner study, cycling head injuries represented 6.5% of serious head injuries in the pedestrian/cycling group. Indeed, the trend from 1995 onwards has been downwards in relation to deaths from head injuries. It is possible to draw conclusions from any of this? It seems not, a positive cannot be proved and a negative cannot be disproved.

So far, I sound very negative. I’m not, not really. I’m keeping an open mind on what we know and don’t know. What about if our helmets were made better? What if we moved onto something a bit more advanced. Isn’t it time to ditch the styrofoam? What about this MIPS thing (though there is still a foam outer, it’s the inside that’s a bit more clever).

The MIPS stuff sounds great. Looks good, seems to offer something more. It deals with the rotational issue. But here’s what the CEO of MIPS had to say:

” I think the No. 1 thing is with how the helmets are built and tested. We have found that the testing is not enough. The companies are not testing what happens in real life. You have an angle to the ground and that angle causes rotational forces and that is something that has been left out. Yes, the helmets are great and are saving people’s lives, but I think the industry doesn’t really know what happens when you fall. That’s why we are still very much in the education process with what MIPS can do for people.”

It’s good to see. He recognises the need to keep thinking, keep researching, try to come up with a way to deal with this complex science.

Don’t get me wrong. I’d prefer something between my skull and the road because I feel, and it’s nothing more than a feeling, that it’s got to be a little bit helpful. But I can’t demonstrate this in any tangible or scientific way. Indeed, as soon as you think about science, it all starts to fall apart a little.

My advice? If you don’t want to wear one, don’t. If you do, great. Get a nice looking one that matches your kit and won’t make you too sweaty. Get one that fits your head and doesn’t mess up your sunglasses alignment. But, whichever camp you fall into, respect the choice of the other and don’t force your view on them. Though, if you’re in the pro helmet camp, bear in mind you can’t prove any of it. And in the anti, you can’t disprove any of it.

But, what happens in law if you decide not to wear one? 

In the United Kingdom there are few legal requirements in relation to cycling. The Road and Vehicle Lighting Regulations set out lighting requirements. Breach of them is a criminal law offence. There may be some civil law ramifications. Bikes need to be sold with a bell. But you can chuck it in the bin when you get the bike. There’s no legal mandate to use it. The Highway Code recommends many things. One of these is the wearing of a helmet. Specifically the code states that you SHOULD wear:

  • a cycle helmet which conforms to current regulations, is the correct size and securely fastened.

Should wear. It’s one of those advisory pieces of the Highway Code which you don’t have to follow. What regulations? Well, there aren’t any particularly legal ones. But if you choose to buy and wear one, then look out for a BS or EN (1078) standard. It should be somewhere on a sticker inside. Chances are if you buy it from somewhere reputable it will be fine. There are “better” helmets as well. Buy something with Snell certification and that’s apparently safer. “Better” still are MIPS helmets. They apparently offer the most protection as we saw above.

Let’s deal with the law first. You don’t have to wear one. No one can stop you for not wearing one. There are no criminal offences at all. But there may be consequences.

Let’s deal with the criminal law first. Let’s assume you are hit when you are not wearing a helmet. You’re injured, or worse. Let’s assume that the prosecution are able to prove that the person who injured or killed you was driving dangerously. Normally, a conviction for causing serious injury or death in relation to dangerous driving would be fairly easy to achieve. But the injury or death aspect requires a causative link. It must be shown that the dangerous act caused the injury or death. In R v Blake (2015) the media report that the Jury heard that the victim (who died) was not wearing a helmet. It’s not clear what the Judge said to the Jury about causation but he advised them that it was not relevant to the question of driving. This was a high speed collision. A helmet is practically useless in the circumstances. Why on earth was helmet use even raised? And there’s a risk, clearly, that we may see a case which turns on that specific point.

In R v Moore (2008) Judge Richard Lowden gave Moore a 24-week suspended prison sentence in relation to the death of James Jorgensen. He said the fact that Jorgensen had not been wearing a helmet was a “mitigating factor” and Moore’s sentence was reduced accordingly. The judge reached this decision without hearing any evidence about the effectiveness of helmets, or whether a helmet would have made any difference to Jorgensen’s injuries. Moore had been travelling at more than 20 mph.  To date there have been no other cases. It’s surprising that the Prosecution had not appealed the sentence on the basis of the Judge’s direction. Though, if you’ve read my earlier pieces, perhaps no surprise at all. This was a case, apparently, of “momentary carelessness,” and, as such it’s likely to have been a suspended sentence in any event. That the suspended sentence (which would never be activated if no other crime was committed) was shorter had not actual impact.

But there’s a more bonkers issue here. Causation. The Judge felt that the lack of helmet use made the “crime” less serious. But, hang on. That, by its very nature puts blame on the victim and suggests that, had he worn a helmet, his injuries would have been lessened. Lessened to what? Less death? Slower death? Is the actual implication that he would not have died? If so, why did the Judge not query the case and consider whether the Defendant had been properly charged with “causing death.” I suspect the answer is that, in the Judge’s head, he knew what sentence he could give and that his remarks were a sideshow. But they are a dangerous sideshow legally in my view.

But it’s the civil law that is most concerning. In civil law the party who is injured needs to demonstrate that the party who caused the accident has been negligent. But the party who caused the accident may claim that the accident and/or injury was caused or contributed to by the actions of the injured party. We call this “contributory negligence.”

Once upon a time, if it could be shown that you were somehow also at fault for your accident or injury, you lost. That was a pretty harsh reality and it changed with the introduction of the Law Reform (Contributory Negligence) Act 1945, section 1 of which provides

“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the Claimant‟s share in the responsibility for the damage.”

That’s pretty straightforward, as legal drafting goes. In any injury claim it’s open for the other party to try and blame you a bit. And, if they can, then the amount of damages you get will be reduced by the percentage that you are deemed to be “also at fault.”

In motoring claims the most common allegation of contributory negligence is failure to wear a seat belt. Way back, in 1975 specifically, the Court’s were asked to consider whether failure to wear a seat belt constituted contributory negligence. At that time the legal position was that all cars had to be fitted with seatbelts but there was no legal compulsion to wear one. In the case of Froom v Butcher the Court considered that very issue.

It’s a landmark judgment and is still relied on today, more or less. Despite there being no legal compulsion to wear a seatbelt the Court considered that it would be odd if Parliament had wanted all cars to be fitted with seat belts if they were not to be worn. The Court came up with a formula by which it could take a certain percentage off a total award of damages to reflect failing to wear a seatbelt. There were three outcomes. First, if the seatbelt would have made no difference, there would be no reduction at all. If the failure would have prevented any injury then it would be 25%. Finally, if it would have prevented some but not all injuries then it would be 15%. What would have been avoided, or not, is a matter of evidence and requires independent expert evidence. Fitting a case into the 25% category appears relatively straightforward. Hit your head on the dashboard, suffer a head injury and it’s uncontroversial that a seatbelt would have prevented that. Arguing the distinction between some injury and no difference is a much harder question.

It’s an interesting case and it requires you to divorce primary liability (or fault) from causation. Just pause for a moment. Think about the ramifications of that. On the face of it, it looks a little unjust. Someone else has crashed into you and you are the one losing out. But is that really the case? Arguably, given that you could have suffered no injury at all, losing 25% for your failure represents an injustice to the party primarily at fault.

It took until 1983 for seatbelt use in the UK to become compulsory. Even then it started only as a trial. There was a clear evidence base for its introduction, though getting much of the data was far from straightforward. You won’t be surprised to know that we have our Scandinavian cousins at Volvo to thank for some of it. They were one of the first with the 3 point harness that we now know.

But I digress. The point is, that at a time when seatbelts were required to be fitted but not used, the law was critical of any failure. You’d expect, post 1983, for the law to change to recognise the much harsher legal position. But it didn’t. Froom v Butcher has remained good law to this day. It has been most recently considered again in Pearson v Anwar (2015). The Court of Appeal has confirmed Froom as still representing good law.

So, how will the Courts deal with helmet use? Well, we still don’t know. It’s certainly possible that there are cases out there where negotiations between an insurer and the injured party resulted in a % of damages being subtracted where helmet non use was a factor. But we just don’t know. Crucially, those cases are not in any way a precedent. There are no cases in which an actual judgment has resulted in any deduction. But there have been cases which discuss the approach a Court might take.

In Smith v Finch [2009] the defendant, a motorcyclist, was found to be completely at fault for driving into the claimant, a cyclist. A question arose about his failure to wear a helmet. The Judge felt that the Froom v Butcher law should equally apply. Though, in the present case, because the impact was of more than 12 mph, it was unlikley to have made any difference at all. So the actual question was not answered. But the content was troubling:

“It matters not that there is no legal compulsion for cyclists to wear helmets and so a cyclist is free to choose whether or not to wear one because there can be no doubt that the failure to wear a helmet may expose the cyclist to the risk of greater injury; such a failure would not be ‘a sensible thing to do’ and so, subject to issues of causation, any injury sustained may be the cyclist’s own fault and ‘he has only himself to thank for the consequences’.

The sensible thing to do. But not the legal thing to have to do. Yet the implication is that a cyclist will be harshly penalised. But, what cyclist? It appears that there are certain classes. Ride fast, ride like a pro, exceed 12 mph, or ensure that the thing hitting you exceeds 12 mph and the question will not arise. Be a leisure cyclist, be a school kid on the way to school, be the granny on the way to the shops, and it will. Do we really want to divide classes of claimants based on dodgy science? Fortunately these words have little legal force. They are what is known as “obiter dicta.” Potentially persuasive for another Court but not binding on it.

Then there was A v Shorrock (2009). A better case from the stand point of common sense. There the cyclist lost the case on other facts. But the Judge stated that he would not have made any deduction for contributory negligence given that there was no legal compulsion to wear a helmet and that cycling was a not an ordinarily dangerous activity. That last part is very welcome. It is not inherently dangerous.

In the case of Phethean-Hubble v Coles [2011] Tobias Phethean-Hubble, 16 years old, was involved in a collision with a car being driven by Sam Coles (who was 17 years old).

In this case the Claimant was cycling on a pavement with no lights and no helmet. He jumped off, it appears, onto the road and was hit by the car being driven by the Defendant. A lot of this case was about the manner of the impact but there were issues in relation to contributory negligence. It’s actually a good judgment. The main issue was speed. It was accepted that had the Defendant been driving slower there would have been no accident. In relation to helmet use the Judge mentioned Smith v Finch but also accepted that there were some cases in which helmet use may make matters worse. Perhaps worryingly no one thought to cite the case of A v Shorrock to the judge. We’re still no closer to any form of “test” therefore. And that’s a good thing. It needs to be dealt with on a case by case basis. And, if the evidence is correct that a helmet is only good for falling off your own bike at under 12 mph, then hopefully the matter will not arise.

As matters presently stand I remain to be convinced that a Froom v Butcher type test will ever apply in relation to cycling helmet cases. What’s particularly welcome is that there are so many few cases in which the issue ever arises. Let’s hope it stays that way.

Yet, in the media, the lack of wearing a helmet is cited as one of the great irritants concerning cyclists. Only this weekend a twitter storm erupted when the London Ambulance Service used the hashtag #nohelmet when reporting a cycling “accident.” We have no idea of the facts or science. They didn’t feel it important to mention. But they clearly felt the need to protect. Which is understandable from an organisation responsible for safety. But irresponsible in their attitude to risk and evidence.

What’s less understandable is why society cares so much. Why is it that failing to wear a helmet is so frequently used to bash us over the heads with?

Society’s demand for helmet use

“You never really understand a person until you consider things from his point of view — until you climb into his skin and walk around in it.”

As human beings our empathetic response is the capacity to recognise emotions that are being experienced by our fellow human. It is generally thought that we need to grow our empathy so that we can identify the need to express sympathy or to give compassion.

Empathy is one of the defining characteristics of human behaviour. We empathise on an individual basis but also as a societal one. It’s relatively common for sections or sometimes the whole of society to empathise with individuals or with defined categories or sub groups of society and to come together offer support in an emotional, spiritual of even financial manner. Charity fund raising, for example, requires empathy to underpin its very nature.

Equally society can take a rather less empathetic view in relation to those individuals or sub groups. Perhaps due to an innate distrust, perhaps due to some illogical stereotype but very often because that element of society has never really crawled into the skin of that other person and walked round in it. Of course, this is an oversimplification; we can empathise with the starving man without having walked in his tight and drawn skin.

The empathetic response often leads to a societal need to cosset and protect. After all, we can avoid the need to sympathise or to give compassion if we, as a society, can offer measures which mean that such things can be reduced or avoided. In doing so we consider whether the section of society that we empathise with is in need of protection. Very often here morality comes into play. But with morality comes danger.

The reaction to smoking in the form of bans and advertising could be seen as an extension of empathy. Who would want to find themselves with such horrible medical issues? Society’s empathetic response requires action. The smoker must be stopped. But is this empathy or something more morally heavy handed?

Enter the helmet debate. It seems society demands helmets for cyclists. There’s no statistical evidence that they do anything very much at all. If the empathetic response requires protection, then this is not the way. But, let’s assume that they do offer that protection, that a helmet is the nirvana. Is the demand for helmets an empathetic response? Is society so concerned for the well being of cyclists that they must be protected for their own good? Has anyone who argues in favour of such compulsion crawled into their lycra and cycled around in it?

Is it realistic to think that the average motorist, for it is motoring society that appears to clamour for the introduction, views the cyclist as a vulnerable fluffy bunny lacking in any obvious understanding of the danger that they face? Is it realistic? Of course not. History is littered with examples of society dressing up an empathetic response to the marginalism of sections of society. No, I suspect the demand for helmet wearing is far more sinister. Deriving not from any empathetic response but instead from the belief that the cyclist must be tamed. Wearing a helmet will achieve this because, well, the more rules that are applied, the more equal they will be. It’s interesting how a section of society can demand equality with the slower, weaker and more vulnerable.

Is the demand simply because, if it is enforced, there will be less? A sub conscious demand to get them off the roads? It is difficult to draw any real conclusions because society is so nebulous, so unpredictable, so very human. Does empathy require you to walk around in another mans lycra? No. But understanding the issues faced by that person requires some form of revolution.

The debate will rumble on.

 

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3 thoughts on “War and Peace 1 : Helmets, deep breath!

  1. The paradox of which you touched upon is it the slow falls, the topples that kill. 6 foot man can fall six foot from a bike saddle, That is a massive impact. High speed barrelling down the road crashes hurt but don’t kill unless you meet traffic. Like a carbon frame, it can roll forward 2 inches at the cake stop and crack the frame on the cafe wall, but crash at speed, you loose shifter and mechs, but the frame lives on. Thorny subject but I ride with a lid. Always.

    Liked by 1 person

  2. I wear a helmet, and always will, for three simple reasons.

    Firstly, if i’m involved in a collision, wearing one eliminates the possibility that the judge might reduce the compensation that I would otherwise be entitled to. Although a recent High Court case seems to have reduced that risk somewhat, I don’t trust insurance companies not to try to wriggle their way out of paying what they have to.

    Secondly, when you do bounce of the Tarmac, it offers some cushioning. And it’s more comfortable to lie in the gutter, in the rain, waiting for the ambulance while wearing a helmet than it would be without one. I know, I was that soldier.

    And thirdly, it spares you the lecture from paramedics, A&E staff and doctors. Sort of. They still start off with the lecture, but “I was in fact wearing a helmet” gets them to tone it down a bit. I was told that my accident would likely have been a fatality but for my wearing a helmet, despite the fact that my head only made the lightest contact with the ground!

    One colleague told me that it also provided a useful mounting point for a camera like a GoPro, until I pointed out that this was likely to have been the main cause of Michael Schumacher’s catastrophic injury. But carrying out a balancing exercise between that risk and the apparent need to collect evidence in the event of a collision leads me to stick one on my lid anyway.

    Others are of course entirely free to come to a different conclusion on each and every one of these points.

    Liked by 1 person

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