Recreational Helmet Use

Author(s): L. Craig Brown

April 11, 2021

Warm spring weather brings the annual renewal of our natural world and with it a surge in traumatic head injuries from increased use of bicycles, motorcycles and ATVs. Many of these terrible injuries could be prevented through the use of certified helmets.

Leading Canadian neurosurgeon, Dr Charles Tator, compares the human brain to a bowl of jello in its consistency and fragility. His lifelong work to reduce the incidence of spinal cord and brain injuries has raised public awareness of the value of helmet use in the prevention of severe brain injury.

Unfortunately a short walk on any busy city street in ‘biking weather’ demonstrates that many adult cyclists still think that wearing a helmet is optional.

Since 1989, when the New England Journal of Medicine published the first large scale study of bicycle helmet use, it has been accepted by scientists and medical practitioners that “bicycle safety helmets are highly effective in preventing head injury.” (NEJM 1989:320:1361-67)

The study goes on to point out that helmet use is particularly important for children “since they suffer the majority of serious head injuries from bicycling accidents.”

This issue is now more important than ever.

The widespread adoption of bicycles as a ‘green’ commuting vehicle has vastly increased the number of adults at risk of head injury.

According to Dr. Howard Ginsberg, a leading Canadian neurosurgeon, the number of severe cycling head injuries he sees in his clinical practice could be significantly reduced if more adults wore certified helmets.

In the United States the use of helmets in recreational activities has been endorsed by the Consumer Product Safety Commission, which states very plainly: “for many recreational activities, wearing a helmet can reduce their risk of a sever head injury and even save your life.”

This brings us to the question of what happens if you are injured in a bicycle accident and need to bring a claim to recover compensation from the person at-fault for the accident.

In Ontario, the courts have dealt with the legal consequences of helmet use by adopting the principle of ‘contributory negligence’. In a case where a plaintiff is injured by the negligence or fault of the defendant it is open to the court to assign some of the responsibility for that injury to the plaintiff for failing to use an appropriate certified helmet.

The Ontario Court of Appeal has said that a plaintiff’s claim can be reduced by as much as 25% if the defendant can show that the failure to use an available safety device caused or contributed to the plaintiff’s injury. This is explicit judicial recognition that safety equipment, such as helmets and seatbelts, are highly effective in injury prevention and that plaintiffs must take some responsibility for the failure to utilize them.

In a number of recent Superior Court decisions involving bicycle accidents the presiding judges have insisted that the defence call persuasive evidence that helmet use would have prevented or reduced the specific injury suffered by the plaintiff. Fortunately for the plaintiffs in these cases the defence case failed to meet that standard of proof. However, insurance lawyers are now well aware of the kind of evidence they will need to call and can be relied upon to do so in future cases.

Modern bicycle helmets are light, comfortable and fashionable. They are also extremely effective. When you are tuning up your bicycle this spring, don’t forget to check your helmet and replace it if it appears damaged or fails to fit snugly.

And take a moment to reflect on the experience and advice of Dr. Tator and Dr. Ginsberg.

Thomson Rogers offers free consultations so please feel free to reach out to us at any time. We are here to help.

Thomson Rogers partner Craig Brown is recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada and ranked Distinguished in Martindale-Hubbell ®. You can reach Craig at 416-868-3163 or by EMAIL.

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