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Cyclist hit by truck driver has compensation cut after judge says lack of helmet contributed to injuries

The damages awarded to Raissa Lopes, who suffered concussion after being struck by the hit-and-run motorist, were reduced by €4,000 on the basis of “contributory negligence”

A judge has cut the damages awarded to a cyclist, who was injured after being struck by a hit-and-run lorry driver, by 20 percent after claiming that she contributed to her own injuries by failing to wear a helmet.

Yesterday, Judge Colin Daly awarded Raissa Lopes De Andrade Aquino damages of €20,000, but reduced her compensation by €4,000 on the basis of “contributory negligence”.

The 22-year-old was cycling in Dublin on 26 July 2018 when she lost control of her bike after the driver of a heavy sand truck veered to their left near a set of traffic lights and hit her right shoulder, the Irish Times reports.

Ms Lopes, a waitress in the Irish capital, suffered a head injury in the crash, which caused concussion, as well as soft tissue injuries to her face, shoulder, and arm.

She was taken by ambulance to the Mater Hospital, where she spent four hours awaiting treatment, and was kept under observation for a further seven hours due to her head injury.

The motorist did not stop at the scene of the crash and could not be traced.

> Victim blaming? Headline suggests helmet would have saved the life of man killed by van

Following the incident, Ms Lopes took a case against the Motor Insurers’ Bureau of Ireland, which provides compensation for victims of road traffic collisions involving uninsured or untraced drivers.

On Tuesday, Judge Daly told Dublin Circuit Civil Court that he found the cyclist’s details of what happened on the day of the crash to be consistent and reliable, and that she had given an honest account of how she had sustained her injuries.

However, the judge reduced Ms Lopes’ damages award by 20 percent to €16,000 because she was not wearing a helmet at the time of the collision which, he said, would have minimised her injuries.

According to Daly, by failing to wear “proper protection”, the 22-year-old had contributed to the extent of her injuries.

As evidenced by the judge’s remarks, the debate surrounding helmets – and the extent of their protection in the case of a serious road traffic collision – shows no signs of being resolved.

> Only five cycle helmets available in the UK get recommended status in new safety testing

In 2019, around the same time WalesOnline published a headline suggesting that a helmet could have saved the life of a 71-year-old cyclist who was killed after being struck by a van driver, Cycling UK released a statement which argued that “there is no justification for making helmet-wearing compulsory”.

“There are serious doubts about the effectiveness of helmets,” the charity said. “They are, and can only be, designed to withstand minor knocks and falls, not serious traffic collisions.

“Some evidence suggests they may in fact increase the risk of cyclists having falls or collisions in the first place, or suffering neck injuries.”

> Government shuts down mandatory cycling helmets question from Conservative MP

Last month, the Department for Transport insisted that the government has “no intention” to make wearing a helmet while cycling a legal requirement in the UK.

Addressing a written question from fellow Conservative MP Mark Pritchard, the minister of state for the department Jesse Norman said that the matter had been considered “at length” during the government’s cycling and walking safety review in 2018.

Norman also added that while the Department for Transport “recommends that cyclists wear helmets”, the “safety benefits of mandating cycle helmets are likely to be outweighed by the fact that this would put some people off cycling”.

Ryan joined road.cc in December 2021 and since then has kept the site’s readers and listeners informed and enthralled (well at least occasionally) on news, the live blog, and the road.cc Podcast. After boarding a wrong bus at the world championships and ruining a good pair of jeans at the cyclocross, he now serves as road.cc’s senior news writer. Before his foray into cycling journalism, he wallowed in the equally pitiless world of academia, where he wrote a book about Victorian politics and droned on about cycling and bikes to classes of bored students (while taking every chance he could get to talk about cycling in print or on the radio). He can be found riding his bike very slowly around the narrow, scenic country lanes of Co. Down.

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60 comments

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polainm | 5 months ago
1 like

Cycle helmets aren't designed to protect one's head from stupid and ignorant driving. They are designed to reduce financial damage from ignorant sitting judges. 

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bikes | 1 year ago
0 likes

There's a lot of mixed evidence for helmet use being beneficial when commuting, but will a bike helmet make it safer for me in a race (ie; when there are no vehicles around)?

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HoarseMann replied to bikes | 1 year ago
5 likes

It's unlikely to save you from a brain injury. A cycling helmet has very little 'crumple zone', the amount of energy they can absorb from a collision is low.

Something like a Hovding airbag helmet performs much better, because it is able to absorb a greater amount of energy. However, they are not really suitable for road bikes.

What a helmet will help with are cuts, bruises and maybe prevent a skull fracture in low speed collisions. So if you are doing a risky activity such as racing, where you are more likely to come off the bike, then it is worth wearing some protection. I also pad up when mountain biking, always elbow and knee pads, sometimes go for the full-face and if visiting a trail centre doing downhill runs I'm not familiar with, I'll put on a back brace too.

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bikes replied to HoarseMann | 1 year ago
1 like

I'm with you on the idea of helmets when MTBing. I feel the chance of hitting my head or face is completely different than when I'm on a road ride.

Am I crazy to think that something like a scrum cap would be better than a helmet when on the road? I just think if I crash, a helmet could end up catching on the ground if I was rolling, so I'd end up with some kind of neck wrenching injury whereas I'd have walked away if I hadn't been wearing a helmet. I've fallen so many times playing all kinds of sports and have yet to hit my head on the ground. I suppose a conventional helmet would be better in other types of crashes.

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Hirsute replied to bikes | 1 year ago
1 like

A scrum cap is for cauliflower ear and preventing cuts from studs. It's not going to do any deceleration to prevent anything.

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ShutTheFrontDawes replied to Hirsute | 1 year ago
0 likes
hirsute wrote:

A scrum cap is for cauliflower ear and preventing cuts from studs. It's not going to do any deceleration to prevent anything.

A scrum cap absolutely would provide some protection against some injuries. It is literally there to protect the head.

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Rendel Harris replied to ShutTheFrontDawes | 1 year ago
3 likes

ShutTheFrontDawes wrote:

A scrum cap absolutely would provide some protection against some injuries. It is literally there to protect the head.

Having been knocked unconscious in a tackle (that I was making, got a knee to the side of the head) when wearing one I can definitely say they won't protect against brain injury and they're not designed to, they really are just there to prevent your lugs getting mangled and, as H says, to stop cuts. Given the current controversy about head injuries in rugby union and the authorities' search for a way to mitigate the effects of concussive brain trauma, you can bet if they protected against brain damage they would be mandated. Although they wouldn't really have to be, the vast majority of players would wear one voluntarily if it did anything for brain protection.

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ShutTheFrontDawes replied to Rendel Harris | 1 year ago
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Rendel Harris wrote:

ShutTheFrontDawes wrote:

A scrum cap absolutely would provide some protection against some injuries. It is literally there to protect the head.

they really are just there to prevent your lugs getting mangled and, as H says, to stop cuts.

So you agree that Hirsute's claim that a scrum cap wouldn't "prevent anything" is wrong. Goodo. Ten points to Hufflepuff.

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Rendel Harris replied to ShutTheFrontDawes | 1 year ago
2 likes

ShutTheFrontDawes wrote:

So you agree that Hirsute's claim that a scrum cap wouldn't "prevent anything" is wrong. Goodo. Ten points to Hufflepuff.

I don't think that's what he meant, he said they won't do any deceleration to prevent anything, i.e. they won't stop brain damage. He stated that they do offer protection against ear damage and cuts.

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Hirsute replied to Rendel Harris | 1 year ago
0 likes

I see Hogg went off for an hia yesterday - if only he'd been wearing a scrum cap. Oh they don't deal with head injuries in rugby like that nor do they mandate scrum caps.
And Atonio should have been sent off.

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Rendel Harris replied to Hirsute | 1 year ago
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He was certainly lucky; general opinion of mates and missus watching chez Harris was that if such a thing as a 20 minute yellow existed that would be about right. Could easily have been red though and I wonder if he'll be having a word with the citing commissioners next week, or can you only be cited for incidents the ref has totally missed?  Cracking game, anyway.

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ShutTheFrontDawes replied to Rendel Harris | 1 year ago
0 likes
Rendel Harris wrote:

ShutTheFrontDawes wrote:

So you agree that Hirsute's claim that a scrum cap wouldn't "prevent anything" is wrong. Goodo. Ten points to Hufflepuff.

I don't think that's what he meant, he said they won't do any deceleration to prevent anything, i.e. they won't stop brain damage. He stated that they do offer protection against ear damage and cuts.

Did anyone mention brain damage though? No. The ten points to Hufflepuff stands.

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Hirsute replied to ShutTheFrontDawes | 1 year ago
2 likes

It's literally there in what I wrote
"A scrum cap is for cauliflower ear and preventing cuts from studs."

If you want to believe and encourage others to believe a scrum cap will help with deceleration forces then that's up to you but you clearly know nothing about rugby.
Where does the scrum cap manufacturer say their scrum cap is a an equivalent substitute for a helmet?

Yet again you fixate on a word or phrase and do not read what someone has posted in full. No doubt you will continue to misrepresent me and what I have said as you have done to me and others before.

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ShutTheFrontDawes replied to Hirsute | 1 year ago
0 likes
hirsute wrote:

It's literally there in what I wrote
"A scrum cap is for cauliflower ear and preventing cuts from studs."

If you want to believe and encourage others to believe a scrum cap will help with deceleration forces then that's up to you but you clearly know nothing about rugby.
Where does the scrum cap manufacturer say their scrum cap is a an equivalent substitute for a helmet?

Yet again you fixate on a word or phrase and do not read what someone has posted in full. No doubt you will continue to misrepresent me and what I have said as you have done to me and others before.

Who mentioned anything about 'deceleration forces'? No-one but yourself.

If you want to pretend that putting something on your head that has been designed to protect your head, does not in fact protect your head, you go ahead. But I'm going to call it out every time I see it because it's bull.

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eburtthebike replied to bikes | 1 year ago
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Last time I checked the death rate of professional cyclists, who have to wear helmets, it hadn't fallen as a result of the helmet rule, but that was a few years ago.

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marmotte27 replied to eburtthebike | 1 year ago
0 likes

What I was going to say...

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ShutTheFrontDawes replied to eburtthebike | 1 year ago
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eburtthebike wrote:

Last time I checked the death rate of professional cyclists, who have to wear helmets, it hadn't fallen as a result of the helmet rule, but that was a few years ago.

More innuendo from eburt, who clearly knows more about helmets and cycling in general than the UCI, but yet refuses to back their suggestions up with facts. Yawn.

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cyclisto | 1 year ago
10 likes

I am a 99% helmet wearer, if it was me in the crash described I would 101% prefer to wear a helmet, but here the judge is absurd to me since it is not mandatory by law. The "should" mentioned in HC is not "must", simple as that.

Has any car driver or pedestrian victim been in a car accident that has been awarded reduced compesation because they were not wearing a helmet? It is exactly the same thing for me.

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San Remo replied to cyclisto | 1 year ago
5 likes

I agree with you sentiment. The Jurisdiction being discussed here is Ireland, I am not sure what what their Highway Code says, if anything, on the matter.

In the law of Tort, in England and Wales, it has long been the case that not wearing a helmet can amount to contributory negligence, with a coresponding reduction in quantum for damages of up to 20%.

I fully recognise the frailty of the rational in some circumstances, and the analogy of not wearing a seatbelt which will also see a reduction for contributory negligence, notwithstanding of course the wearing of one is mandatory, save in very limited circumstances.

That said, I think when magazines, and cycling organisations are discussing the decision of wearing, or not wearing helmets, it would be helpful to point out the matter of contributory negligence in the event of an accident, as it may influence an individuals decision. 

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eburtthebike replied to San Remo | 1 year ago
3 likes

San Remo wrote:

In the law of Tort, in England and Wales, it has long been the case that not wearing a helmet can amount to contributory negligence, with a coresponding reduction in quantum for damages of up to 20%.

That said, I think when magazines, and cycling organisations are discussing the decision of wearing, or not wearing helmets, it would be helpful to point out the matter of contributory negligence in the event of an accident, as it may influence an individuals decision.

As far as I am aware, there has been a single case of contributory negligence being found in court, under such peculiar circumstances that it does not make case law. 

I am aware that many insurance companies will try to get the cyclist to accept lower damages if they were not wearing a helmet, claiming contributory negligence, but that these are always withdrawn if the cyclist refuses to accept.  So I'm not sure where you get "..it has long been the case that not wearing a helmet can amount to contributory negligence..."  It doesn't.

I can only concur with your observation that when helmets are being discussed, that the facts should be presented, but perhaps we differ in that I think all the facts should be there; those things that are demonstrably facts that is.

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San Remo replied to eburtthebike | 1 year ago
3 likes

I feel confident, as a Lawyer of 3 decades call, that this is the law. 

https://www.braininjurygroup.co.uk/news/cycle-helmets-law-contributory-n...

I hope that some of the case law enumerated in the link assists.

 

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quiff replied to San Remo | 1 year ago
0 likes

Also burt, remember that (a) as you allude to, the vast majority of cases do not get to court (they are settled first); and (b) of those which do get to court, only a tiny fraction are actually reported. As such, be in no doubt that 'contrib' is regularly being used as a partial defence.  

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qwerty360 replied to San Remo | 5 months ago
0 likes

San Remo wrote:

In the law of Tort, in England and Wales, it has long been the case that not wearing a helmet can amount to contributory negligence, with a coresponding reduction in quantum for damages of up to 20%.

 

Note that this sets an upper limit. The same case (appeal to higher court) that set it IIRC also set 2 requirements :

1. Using a helmet was a reasonable precaution (and the HW code means this is met).

2. Using a helmet would be expected to help.

 

In the case the cyclist was found to have no contributory factors due to the 2nd; Something that would apply to almost all collisions between cars and bicycles (helmets being designed for falls so the Judge ruled that on balance of probability helmet wouldn't help in car crash - i.e. drivers need to prove the collision was within a helmets spec to claim negligence).

So an example of where it is relevent is pothole claims. A council can easily argue for a 20% reduction even when they are at fault for failing to maintain the road.

 

 

I have seen a lawyer argue in online blog that 1 plausibly no longer applies because of bike rental schemes - it is in the public interest to have rental schemes, which effectively mean people cycling without helmets so they can/should use to refuse contributory negligence on that basis...

 

Edit: Note of course none of this applies to Ireland (In NI) as they have a separate legal system...

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OnYerBike replied to cyclisto | 1 year ago
3 likes

I wish you were right, but unfortunately that's not how the law works (I'm more familiar with UK law but as far as I can tell its pretty similar in IE).

It's well established that the "should" rules factor into negligence and liability. 

The Highway Code (and the Rules of the Road in IE) says cyclists should wear helmets. Neither says pedestrians or vehicle occupants should wear helmets. 

It's not a position that I agree with, but it is the position in law. 

FWIW there are plenty of examples not relating to cyclists where "should" rules have been used for contributory negligence - some are listed here: https://www.true.co.uk/case-studies/common-scenarios-for-split-liability... (and there are some others in that list where I must disagree with the Court!)

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grOg replied to OnYerBike | 1 year ago
3 likes

I'm a big fan of wearing a full face helmet when in a car, out walking or travelling on public transport; I also wear a P2/N95 respirator/mask under the closed helmet visor, as you can't be too safe..

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Geoff Ingram replied to grOg | 5 months ago
1 like

Slips and falls in the bathroom are a serious health risk: I certainly wouldn't dare to shower without a full face helmet on.

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NOtotheEU | 1 year ago
17 likes

We all know -

Helmets are equally as likely to do nothing or even make an injury worse as they are to prevent or reduce an injury.

Helmets are not designed to prevent concussion. “No helmet design has been proven to prevent concussions” - Consumer Products Safety Commission USA.

Helmets are not designed to protect from vehicle impacts. “We do not design helmets specifically to reduce chances or severity of injury when impacts involve a car, The number of variables is too great to calculate.” - Bell Helmets.

Helmets can make drivers take more risks around cyclists.

The courts, police and public are victim blaming when they say "you should have been wearing a helmet".

there is no legal requirement to wear one. it's personal choice (I always wear one).

Cyclist are treated differently (worse) than drivers or peds after a collision.

Cyclists are unfairly expected to mitigate others poor decisions and actions with helmets, high viz, cameras, muliple lights etc.

And probably many more I didn't think of.

All this being true, Martin73 has a point. The big problem is the Highway Code says "You should wear a cycle helmet that conforms to current regulations, is the correct size and securely fastened. Evidence suggests that a correctly fitted helmet will reduce your risk of sustaining a head injury in certain circumstances."

It might be bad advice, scientifically unsound, give a false sense of security and facilitate victim blaming but until it is removed or changed anyone relying on the HC for guidance cannot be blamed for following it.

 

 

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eburtthebike replied to NOtotheEU | 1 year ago
12 likes

NOtotheEU wrote:

The big problem is the Highway Code says "You should wear a cycle helmet that conforms to current regulations, is the correct size and securely fastened. Evidence suggests that a correctly fitted helmet will reduce your risk of sustaining a head injury in certain circumstances."

The key words being "....in certain circumstances."  with no explanation of what those circumstances are, which gives bad judges, drivers and their legal representatives the ability to make patently false decisions about compensation.

The HC advice should have an asterisk and an explanatory paragraph explaining that "certain circumstances" are falling off a stationary bike; the helmet is unlikely to be of much, if any, benefit in any other circumstances.

That would clarify it greatly and make it less likely that there would be claims of contributory negligence, but given how hard CUK had to fight last time the HC was amended to get the incredibly anti-cycling stuff removed, maybe it's a bit optimistic to expect that to happen.

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grOg replied to NOtotheEU | 1 year ago
0 likes

The 'no legal requirement' bit is inconsequential when it comes to contributory negligence; as bicycle specific helmets are readily available and are accepted by those deemed expert as being helpful with minimising injury with some bike accidents, the courts are able to deem contributory negligence from not wearing a helmet while cycling.

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Stevearafprice | 1 year ago
11 likes

Helmets aren't really designed for being whacked by cars or anything over 12mph or something like that.   I know a couple of people who have had serious concusion injuries due it seems to the helmet, these have been low speed tumbles, it appears that the helmet adds torque to the impact and spins your brain or some hideous effect like that. One guy had this happen without his helmetted head actually hitting the deck!  

I got knocked off a couple of years ago sustaining hip and wrist injuries... the assessor asked if I was wearing a helmet..... er, why? Not claiming for head injury anyway.   They don't ask drivers if they were wearing a helmet after a crash despite head injuries being more common in car crashes... anti cyclist bias.

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