Regarding new regulations. You can listen to it on the audio vault, time was
11:30. To have a read as to why Jim McNeney feels this way have a read.
Audio Vault skip to 32:20
Motorcyclists and Consumer Rights
It has often been noted that 50% of the retail price of a motorcycle helmet is the cost of insurance. With all the media attention centered upon compulsory helmet usage as a civil rights issue, the entire consumer safety and products liability aspect of helmets is commonly ignored. But what about the consumer aspect? What do the manufacturers warrant?
Any parent who has been besieged by a ten year old to buy a Pokemon toy knows that consumers usually do not exercise a great deal of thought when it comes to purchasing things. In fact, in spite of the move toward consumer safety and increased consumer rights, the trends over the last two decades have made a mockery out of the concept of freedom of choice as experienced by the consumers in the marketplace. Is a teenager in a compulsory mandated helmet jurisdiction with $39.00 in his pocket free to make an enlightened consumer choice when purchasing a helmet?
Is a Policeman assigned to a motorcycle and given a helmet with inherent dangers of design free to decide for himself?
Motorcycle helmets, child restraint systems, condoms and cribs are all subject to mandated safety standards that have usually been set by organizations that are outside the direct control of State, Provincial or Federal legislative bodies.
There is great controversy over the effect of, as regards motorcycle helmets in particular and vehicles in general, compulsory Safety Standards. It is my firm conviction that rather than placing a greater onus upon manufacturers, Safety Standards actually act to the determent of the motorcycling consumer as they generally set a minimum code that is very easy for the motorcycle manufacturer to follow. What this means, is that in many jurisdictions, motorcycle helmet standards are set with great input by the manufacturers and are designed to protect the manufacturer. So long as the manufacturers point to compliance with the minimum requirements as set forth in the Motorcycle Safety Standard, then they are able to use that compliance when faced with a lawsuit by a severely injured motorcyclist. It is important to realize that there are distinctions between the major European, British, Canadian and American standard setting organizations but when one examines these requirements several things become apparent. The first is that there is, generally, no requirement that the manufacturer has to warrant the helmet as protecting against a killing head injury at a certain speed. If one translates the impact testing facility to real life it becomes apparent that the helmets are tested to duplicate a 150lb. Person striking an object at a speed of between 4.5 - 7 miles per hour. Obviously motorcycle consumers do not purchase helmets to protect them against injury as a result of low speed impact, but rely instead upon the helmet to protect them from the typical 20-40mph. Impact occasioned when a left turning vehicle cuts across their front. When motorcyclists bring an action against the manufacturer alleging improper design or failure of the helmet to do what it is expected to do, then the helmet manufacturers point to the Government of Private Standard that they have fulfilled and say that they are not negligent as their helmet has passed all applicable codes. Obviously, if seatbelts were only warranted to protect against an impact of only 4.5 - 7 m.p.h, there would be a huge public outcry. Motorcycle manufacturers tell the courts that they do not sell their helmets to protect against anything other than low speed skull fractures, or the skipping type of injury that one sees when a motorcyclist is ejected along the ground. The law concerning legal liability imposed upon manufacturers varies somewhat from State to State or Province to Province and whether or not one is in a State, Provincial or Federal jurisdiction. Simply put, the law imposes upon a vendor of any product the minimum requirements that:
(a) the product sold be reasonably fit for the purpose intended; and
(b) that the vendor bring to the sale a standard of care that is at the very least,
consistent with the knowledge within the manufacturing community at the
time the device or product is manufactured.
The fascinating thing about motorcycle helmets is that the manufacturers do not sell them for purposes for which the consumers buy them. As stated, the helmets are not required to stay upon the rider’s head in the event of most foreseeable collisions and nor are they required to meet a standard, which would allow a rider to pass Provincial or State minimum hearing and vision requirements.
The manufacturers equip each helmet with a disclaimer and warning which usually tells you that the helmet
“Shell constructed of fibreglass and polyester resin. Liner of expanded polystyrene. WARNING! No protective headgear can protect the wearer against all foreseeable impacts. However for maximum protection under this standard the helmet must be of good fit and all retention straps must be securely fastened. Helmet can be seriously damaged by some common substance without damage being visible to user. Do not apply the following: All common solvents, paints, cleaners and adhesives to the shell. Use only mild soap and water to clean pads and liner. Make no modifications. If helmet experiences a severe blow, return to the manufacturer for inspection, or destroy and replace it.”
The Courts have said that in situations involving defective design the lawsuit usually falls into one of three categories. The first is manufacturing defect; the second is design defect and the third is a failure to warn. In a manufacturing defect; the second is design defect and the third is a failure to warn. In a manufacturing defect case, a product fails to meet its designed specifications. For example, a master cylinder malfunctions and the vehicle crashes. In a defective design case the helmet meets its designed specifications but is still defective due to the design of the product. For example, the much touted Ford Pinto gas tank design. In a warning case there is inadequate warning of possible foreseeable harm. A warning is required if the product is unreasonably dangerous and if the risk of injury is foreseeable but the insertion of the warning by the helmet manufacturers acknowledges that the product is unreasonably dangerous and that even whilst wearing one a foreseeable injury is not protected against. Where a warning is required, the law states that the warning must catch the attention of the user; it must instruct the user of how to minimize the risk involved and it must identify the specific occurrence against which the warning has been issued. One well known lawyer who specializes in products liability cases has termed a warning “a poor excuse for bad design.”
The trend today is towards compulsory Safety Systems. If you examine your seatbelt you will nowhere see a warning of the type that exists on all motorcycle helmets. Many jurisdictions mandate compulsory seatbelts and the seatbelts that are mandatory are tested in accordance with the vehicle design as a whole. Helmet manufacturers, when faced with products liability lawsuits, are able to point to the warning on the inside of the helmet and argue that the consumer voluntarily assumed the risk and that his death or crippling injury is not the fault of the helmet manufacturer as the exculpatory warning lets any consumer know that use of the product is dangerous. Again, many jurisdictions compel a person to wear a product, which contains a warning, and the motorcycling consumer has no option but to purchase the product. It makes you wonder whether or not there would be compulsory seatbelt laws if all seatbelts came equipped with a label-warning sticker advising potential consumers that they face death or serious injury in spite of using the product. I suggest it is because the legislators operate cars and not motorcycles.