Ask the lawyerAndrew Dalton, ex-dispatch rider, now a solicitor-advocate and
barrister with 20 years’ experience with bikers, gives the inside track
on what the biker needs to know to stay on the right side of the law.JULY 2019 | 111
Q
I DECIDED TO take the scenic route to pick up
a takeaway curry for myself and my husband- top boxes are very useful. Unfortunately the
journey was interrupted when a car pulled
out in front of me. I jumped on the brakes but my
front end buckled and I slid down the road.
My problems are these; the other driver’s
insurance company has admitted liability but has
also raised some arguments. In the collision, I broke
four toes and I have been left with some quite angry
looking scars. I am still a young woman and I have
developed keloid scarring - dark scarring - on my
skin. I am of mixed Jamaican/Scottish heritage and
my dermatologist says this is a known consequence
of scarring to Afro-Caribbean skin types.
The defendant’s arguments are as follows:
as to the scarring and my toes, the defence is saying
that I should have had “proper” motorcycle boots,
with steel toe caps and “appropriate specialist
trousers.” I was wearing ordinary jeans.
My solicitors seem unsure about the protective
clothing point. They seem to be thinking more about
protective gear in a Health and Safety environment
rather than a motorcycle. What do you think?
A
YOU HAVE TOLD me that you were wearing
CE-approved soft ‘baseball-type’ high-top
boots made by a very well-known
manufacturer. These boots have malleolus
(ankle) protection, a rigid sole to protect from
crushes, and a box section for the heel and toe.
They are stout boots. There is a potential but weak
argument had you injured your foot while wearing
ballet pumps or trainers but it does not get off the
ground with you wearing soft boots with CE-
approved armour. Whoever wrote the letter from the
insurers is clearly proud to display their ignorance. I
have not seen “steel toe-capped motorcycle boots”
which they apparently think are standard since
about 1985, which is before you were born.
The ordinary denim jeans point is just as weak.
The law looks at what causes the injury. In this case,
your slide down the road. It then looks to see if you
contributed by culpable wrong-doing on your part to
worsening your injuries. The only relevant guidance
comes from Section 85 of the Highway Code, which
recommends “strong boots” which you were wearing
along with gloves and suitable clothing that will help
protect you. However, even if you had not followedShould I have been wearing
‘specialist’ trousers?
Section 85 (youhave),it wouldnotbeenoughto
raise contributory negligence against you. Unlike, for
example, failing to strap up your helmet which can
impact the overall value of a claim, if the unbuckling
leads to additional harm. There is a duty in law to
wear a buckled helmet; you have no duty in law to
wear “appropriate specialist trousers.” In the
circumstances of your case, there is no discount.
In so far as your scarring is concerned, your
photographs show me some quite obvious and
visible scarring either side of your knee. All
practitioners use a text called the ‘Judicial College
Guidelines’ for the valuation of injuries, and the
bracket which you most obviously sit in is “a single
noticeable scar, or several superficial scars, of legs,
with some minor cosmetic defect.” However, you
have developed keloid scarring which does make the
scarring more significantly obvious, so it is my view
that you go beyond the guideline awards. The courts
will not be unsympathetic to a young woman having
very visible scarring in a place which means that
your scars would be on display if you wore a
summer skirt, swimwear or shorts. I think
the majority of judges would award above the
approximately-£7000 upper level for scarring to the
legs, as you have had a complication which is not
really contemplated in the guidelines.While not the
ideal choice,
ordinary jeans
(like these from
our Product
Test, page 70)
are no reason
for an insurer to
challenge a full
payout