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Wednesday, May 1, 2019

Matters bicycle helmet and the Minister

Enjoying the cooler weather ... and my bicycle
On the off chance that you're interested, the content of my letter (15/04/19) sent to The Hon. Andrew Constance MP Minister for Transport & Roads is below the dotted line:
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Dear Minister Constance, 

RE: Bicycle helmet regulation and exemption in NSW  

I am writing to you as a result of correspondence I have had with Chief Inspector Guy Guiana, of the Hunter Valley Local Area Command, in relation to whether or not I am exempt from wearing a bicycle helmet when riding a bicycle.  

As you would be aware, the provisions of regulation 256 (NSW Road Rules) state that:  

(1) The rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction. 

 In light of the rule’s mention of possible ‘exemption’ I believe that you could accept that I am “exempt from wearing a bicycle helmet” by virtue of the Australian Consumer Law which provides me with a number of consumer guarantees and protections from questionable products (in this case the bicycle helmet). 

Australian Consumer Law 
Thus, to recap the framework of my exemption, the Australian Consumer Law provides consumers such as me with a number of consumer guarantees. 

 Inter alia, statutory warranties exist in addition to any other warranty provided by suppliers, importers or manufacturers. Consequently suppliers, importers and manufacturers of bicycle helmets cannot limit, restrict or exclude consumer guarantees, or avoid their obligations. 

 The consumer guarantees are relevant to the bicycle industry particularly because people selling bicycle helmets are generally regarded as suppliers as they sell goods (bicycle helmets) to consumers such as me. 

 As you would be aware, the definition of ‘consumer’ is restricted to persons who acquire goods and services with a value less than $40,000: in my experience bicycle helmets tend to have a value of less than $40,000 (certainly the ones I might consider).  

Fitness for purpose  
The relevant consumer guarantees in relation to fitness for purpose and quality for goods and services are:  

(1) Guarantee as to fitness for any disclosed purpose where the goods are reasonably fit for a purpose for which the supplier represents that they are fit; or a purpose the consumer makes known to the supplier or manufacturer that they will use the goods for;  

(2) Guarantee as to acceptable quality where goods will be considered to be of acceptable quality if they are safe, durable and free from defects; acceptable in appearance and finish; and do everything that they are commonly used for;  

In relation to fitness for purpose, a bicycle helmet is bought to protect the cyclist from acquiring brain injury whilst the cyclist is riding a bicycle. Accordingly, there is an implied condition that they will do just that: protect the cyclist from acquiring brain injury.  

Yet in a letter addressed to me from the former Roads & Maritime Minister’s department dated 11/04/2017, it was communicated in a binary manner that 76% of cyclists killed over the period of ‘2009 – 2013’ in NSW were wearing helmets. This information revealed the implied condition that bicycle helmets will protect cyclists from acquiring catastrophic brain injury was not being met, meaning the relevant consumer guarantee in relation to fitness for purpose for bicycle helmets is not being fulfilled.  

To reiterate my summation of the information in the minister’s letter with the backdrop of Australian Consumer Law, whilst bicycle helmets are sold for the sole purpose of protecting cyclists from catastrophic brain injury and death when cyclists are riding bicycles, three quarters of the cyclists killed in NSW are wearing bicycle helmets and their helmets are not protecting them from acquiring catastrophic brain injury.  

Therefore, it is only logical I would conclude that helmets are not fit for the purpose under Australian Consumer Law. Furthermore, it is only logical I would conclude that it is illogical cyclists are compelled by NSW law to wear a product that is not fit for purpose.  

Merchantable quality  
In relation to merchantable quality, a bicycle helmet is bought to protect the cyclist from acquiring brain injury. Australian Consumer Law provides that bicycle helmets must be of acceptable quality, meaning that they must be safe, durable and free from defects. 

Bicycle helmets contain latex which many people (and I am one) are allergic to especially health workers and former health workers (the latter being a group I fall into from my time working as a registered nurse back in the 1980s at St Bartholomew’s Hospital, London). Whilst latex allergies vary in grades of severity from contact dermatitis to anaphylactic shock, all people with a latex allergy are strongly advised to avoid any contact with the substance as the potential for life-threatening reaction increases every time an individual allergic to latex is exposed to latex.  

Additionally, bicycle helmets contain polystyrene which according to the US National Toxicology Program, Department of Health and Human Services, is “reasonably anticipated to be a human carcinogen based on limited evidence of carcinogenicity from studies in humans, sufficient evidence of carcinogenicity from studies in experimental animals and supporting data on mechanisms of carcinogenesis.”  

In relation to durability, bicycle helmets significantly add to landfill because cyclists are widely exhorted to replace helmets regularly (every two years or after any significant knock within that timeframe). As you would know, there is much discussion in the community as to whether polystyrene can be recycled, but the general consensus is that it rarely is due to the nature of the product and the high energy costs to do so, and that inevitably polystyrene ends up sitting in landfill for centuries.  

Thus, when the implications of latex allergies, carcinogenic defects and the significant landfill concerns are taken into account underpinned by the fact that bicycle helmets cannot be guaranteed to provide protection from acquiring brain injury they are commonly used for and legislated for, merchantable quality cannot be guaranteed either, meaning the relevant consumer guarantee in relation to merchantable quality for bicycle helmets is not being fulfilled.  

Therefore, it is only logical I would conclude that helmets are not of merchantable quality under Australian Consumer Law. Furthermore, it is only logical that I would conclude it is illogical that cyclists are compelled by NSW law to wear a product that is not of merchantable quality. 

Implied condition, s19 Sale of Goods Act (NSW)   
To conclude whilst regulation 256 of the NSW Road Rules 2014 states that the rider of a bicycle must wear an approved bicycle helmet securely fitted and fastened on the rider’s head, unless the rider is exempt from wearing a bicycle helmet under another law of this jurisdiction, under the ‘Implied Condition as to quality or fitness’ provisions of section 19 Sale of Goods Act 1923 (NSW) you will find that bicycle helmets are not fit for purpose nor of merchantable quality.  

Therefore, I believe that you can accept I am exempt from wearing a bicycle helmet under s19 of the Sale of Goods Act (NSW) and the Australian Consumer Law.  

Alternatively, exemption provisions could be read down in s256 of the NSW Road Rules in light of the fact that there are exemptions for not wearing seat-belts in cars and other motor vehicles (s267 NSW Road Rules), for not wearing motor-bike helmets on motor-bikes (s270 NSW Road Rules) and also for P plate drivers driving with passengers after 23:00hrs when their passengers are their siblings and/or their children. It is unlikely when the Road Rules were being constructed that exemptions for not wearing bicycle helmets would not have been intended to be read down in the relevant road rule as well (s256 NSW Road Rules).  

Thank you for your time and consideration - I look forward to hearing from you. 

Yours sincerely,  
Sue Abbott  

Cc: The Hon. Michael Johnsen MP, 20 Bridge Street, MUSWELLBROOK NSW 2333 ; Chief Inspector Guy Guiana, Hunter Valley Local Area Command, 20 William Street, MUSWELLBROOK NSW 2333; Mr Mike Pritchard, ABC Rural,pritchard.michael@abc.net.au; Ms Liz Flaherty, “scone.com.au,” elizabeth@scone.com.au; Ms Kathy Francis, Freestyle Cyclists, kathy.francis@westnet.com.au

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