Cycling is an amazing activity. It offers a sense of freedom that is unparalleled. Whether you’re riding through the scenic landscapes of NSW or commuting to work in the Sydney CBD, people are drawn to cycling for a wide range of reasons. However, for all the benefits that cycling brings, cyclists bear the responsibility of ensuring that they look after their own safety by maintaining their bicycle, always being clearly visible to other road users and, most importantly, by wearing a helmet. In this edition of the Advantage Legal ‘Compensation Insider’ series, we explore why failing to wear a helmet can lead to significant loss of compensation, even in circumstances where a cyclist is not at-fault for a car accident in NSW.
WHY HELMETS MATTER
Safety should always be a cyclist’s priority. A helmet is more than an accessory, it is a lifeline for when things unexpectedly go wrong on the road. Helmets were initially designed to protect cyclists from head injury in the event of a fall or crash. Statistical studies have repeatedly shown that wearing a helmet assists significantly in the prevention of serious injury and death when a cycling accident occurs.
In May 2016, the International Journal of Epidemiology published research from the School of Mathematics and Statistics at the University of NSW which estimated that there are “0.29 crashes for every 1000 km cycled” in Australia. The same study acknowledges that the “first large, case-control study of helmet effectiveness found very large protective effects, estimating 85% and 88% reductions in head and brain injury, respectively, for helmeted cyclists relative to unhelmeted cyclists”.*
More recently, Transport for NSW Centre for Road Safety highlights in a report released in June 2021 stated that “there is good evidence for statistically significant reductions in the severity of head and facial injuries for cyclists when a helmet is used, compared to no helmet. Between 2015 and 2019, 14.4% of NSW bicycle riders killed were not wearing a helmet and 12.7% of NSW bicycle riders seriously injured were not wearing a helmet”.**
In addition to being a safety conscious decision, wearing a helmet in NSW is also a legal requirement. Failing to wear a helmet attracts a fine and also can have considerable legal implications when pursuing a personal injury compensation claim.
A LIFE-CHANGING ACCIDENT
Imagine you’re riding along a beautiful coastal road in NSW Australia. You’re in your element, feeling the sun against your skin and the wind in your hair. You’re not wearing a helmet, but there isn’t a lot of traffic on the road, so in your mind it doesn’t matter as you’re having such an enjoyable day. Suddenly, a car smashes into you from behind, catapulting you off your bike down the road. As the car hit you from behind, you didn’t see it coming and had absolutely no idea the driver was distracted by their mobile phone at the time. You sustain very serious injuries including a traumatic brain injury. You’re airlifted to hospital where you undergo a series of life saving operations and remain in hospital for 9 months before commencing a lifetime of rehabilitation. Life as you know it has changed forever.
THE COMPLEX WORLD OF CTP COMPENSATION
Compulsory Third Party (CTP) insurance is designed to be a financial safety net for people who are injured on NSW roads in circumstances involving the use or operation of a motor vehicle. While you might assume that not being at-fault for the accident ensures full access to compensation entitlements, the reality can be far more complex.
At a simplistic level, the principle of “contributory negligence” assesses an injured person’s role in an accident. In the scenario above, as the cyclist was not wearing a helmet at the time the accident occurred, it is plausible that the CTP insurer for the at-fault vehicle may allege contributory negligence. This is due to the fact that the cyclist’s failure to wear a helmet will be viewed as a contributing factor towards the severity of the injuries sustained, even though the cyclist was not at-fault for the accident.
If the CTP insurer is successful in establishing that the cyclist’s injuries were partly caused by the failure to wear a helmet, the NSW Personal Injury Commission or Court may reduce the amount of compensation payable to the injured cyclist. This would occur even in circumstances where severe injuries have been sustained and the cyclist has life-long, permanent injuries, potentially resulting in the loss of tens or even hundreds of thousands of dollars in compensation.
THE KEY POINTS TO REMEMBER
Helmets were designed to protect cyclists from head injuries in the event of a fall or crash.
Multiple studies have established that wearing a helmet reduces head and brain injuries.
Failing to wear a helmet can result in a ‘contributory negligence’ allegation resulting in a significant loss of compensation to an injured cyclist, even in circumstances where the cyclist was not at-fault for the accident.
* International Journal of Epidemiology – Bicycle injuries and helmet use: a systematic review and meta-analysis. Refer to page 2 of PDF or page 279 of the complete study. Accessed on 25/10/2023. Available at: https://doi.org/10.1093/ije/dyw153.
** Transport for NSW | Centre for Road Safety – NSW Safety Performance Indicators Observational Study Summary Report – June 2021. Refer to page 5 of the PDF. Accessed on 25/10/20253. Available at: https://www.transport.nsw.gov.au/system/files/media/documents/2023/NSW%20Safety%20Performance%20Indicator%20Observational%20Study%20-%20Summary%20Report.pdf