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Hudgell Solicitors™ | Latest News | How does ‘contributory negligence’ impact upon motorcyclists?

How does ‘contributory negligence’ impact upon motorcyclists?

Motorcycle Case


By Tony Carter, incident and advice investigation specialist

When motorcyclists have accidents, it is often the motorcyclist that is considered blameworthy. On this basis, the third-party insurers will often, whatever the circumstances try and hold the motorcyclist 100% liable for the cause of the crash, simply so they can contest liability and mitigate their losses and, therefore, hopefully reduce the overall costs to their shareholders.

So in simple terms, someone will try and allege what is known in the trade as ‘contributory negligence’, which essentially means that, although the other party is still liable, you are also held partially to blame. This contributory negligence can range from 0% to 100% depending on the circumstances. The reason I mention this is that (and I hate to have to admit this) often riders will tell stories of bravado, or they will try and show their mates how good they are, but very little thought is given to the consequences if it all goes pear-shaped, not from the injury point of view, but from the point of view that it could seriously affect the amount of compensation you may get.

So, for example:

Filtering: Something most of us do on a daily basis and is perfectly legal as it is only another word for overtaking.

Many riders (and drivers for that matter) are still unsure about the legalities of filtering, but providing it is done sensibly and safely, it does not usually cause a problem as far as making a claim is concerned when things go wrong.

Many defendant insurers and law firms will still try and use the case of Powell v Moody (1966) as their statutory defence, even though there is much more current case law which can and does work in our favour.  Filtering crashes have to be judged on the evidence and on merit, not on some obsolete piece of case law.

Providing you have complied with some basic common-sense rules, for example, not straddling or crossing a central, solid white-line system, not overtaking between ‘No Overtaking’ signs, not filtering close to a junction or turning on your right, and you do not cause other vehicles to alter course or speed, then you should not experience too many problems.

On the flip side, I often get asked about ‘undertaking’, for example on a motorway where a driver chooses to sit in the middle lane instead of using the left lane despite the fact that the left-hand lane is clear. Many TV programmes will have you believe that undertaking is illegal.  The bottom line is that there is no specific offence of nearside overtake and, in some cases, undertaking is a legitimate manoeuvre, for example, when traffic is queuing in lanes 2 and 3 (middle and outside lanes) and lane 1 (the inside lane) remains clear.

To secure a prosecution, it would have to be shown that the undertake was careless or dangerous. But, as with all cases, the findings are determined on the specific circumstances and the evidence.

Kit: Many threads on various forum boards have gone on about the idiots who, during the hot summer weather have chosen to wear nothing more than a pair of shorts and a T-shirt (and I am sure we have all seen them in our time).

OK, we may think that people who choose to wear such kit (or lack of it) are idiots and it certainly cannot be disputed that these people have no protection, and, yes, it will hurt if you come off, but the question often asked is: how much will it affect my compensation? Well, firstly, let’s deal with a crash helmet:

It is a legal requirement to wear a securely-fastened helmet whilst riding a bike in the UK. If you choose to ride without a helmet, or not fasten the strap properly, then it will most likely affect your compensation.  If the injuries you sustained could have been avoided had you been wearing a helmet or one that was securely-fastened, then it is likely that your compensation will be reduced by a percentage to reflect the degree of fault attributed to you.

In respect of normal riding kit, there is currently no case law where the defence has been successful in having the amount of damages awarded reduced because the rider was not wearing recognised protective equipment other than a helmet.

Speed: It is not uncommon for the other side to make an allegation of excess speed, particularly when motorcycles are involved.  It is not for you to prove that you were travelling at or below the speed limit, it is for the defence to prove that you were exceeding the limit and so, unless the crash is of a catastrophic nature, then the chances of the police having carried out a full accident investigation are pretty remote and, on that basis, the chances of excess speed (if indeed you were travelling above the limit) being proven against you are unlikely. Riding without a licence or insurance would not prevent a rider making a personal injury claim if their accident was deemed not to be their fault and, whilst they may be prosecuted for traffic offences, there may be no contributory negligence as far as any civil action is concerned.

This, perhaps, gives you a bit of a flavour. Civil law and claims work differently to road traffic laws although there can be an overlap in some instances, but if you are unfortunate enough to have an off, make sure that you have your story straight before you say anything; if needs be, call us at Hudgell’s, as we can determine what is and is not likely to affect your claim.

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Tony Carter

Incident and Advice Investigation Specialist

ac@hudgellsolicitors.co.uk

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