It’s been a busy few months for the Thorneycroft team. We’ve had the pleasure
of attending the Manchester Triumph Club Concours event, held our own
successful Ride 2 Arrive biker safety day and just had a great day at Staffordshire
Bikers Breakfast. We have lots more events planned—see the Thorneycrofts
website for more information—and if you would like us to provide a talk for your
club, or have an event you think we might be interested in attending, please drop
me an emailAny question, comments, invites to talk to your club, etc., please email [email protected]WITH THORNEYCROFT
100
%^ LEGAL
A
s you know from the previous 100% Legal columns, if
you’re involved in an accident and suffer loss, including
injury, as a result of someone else’s negligence, then you
can pursue a claim for damages. As you have probably
gathered by now, it is not always as straightforward
as you might anticipate. One area of the process that often
causes the most confusion and irritation to claimants relates to
contributory negligence and that’s this issue’s subject.
If you are involved in an accident you will, in simple terms,
be looking for an admission of liability from the defendant.
In effect, you want the defendant to state that they were
responsible for the accident. Once you have this you should
be home and dry and able to obtain 100% of the compensation
you are awarded, right? Not necessarily. You may receive an
admission of primary liability, in that the defendant accepts
that they caused an accident, but there may be allegations
of contributory negligence. This means that there is an
allegation that you as the claimant contributed somehow to the
circumstances of the accident or to your own injuries or losses.
To establish contributory negligence, it has to be established that
the claimant has failed to take such care as a reasonable man
would for his own safety. Let’s take a look at a few examples.Incorrect safety clothing
Thorneycroft Solicitors is passionate about promoting biker
safety. In particular, we support the Upright Derbyshire
initiative to which we’ve donated a number of Medical Alert
helmet tabs that carry all of your contact details and medical
data, a simple but vital piece of kit. We’ve also just supplied
a mannequin that now has one half dressed in the correct
protective clothing and one half in jeans, t-shirt and
inappropriate shoes. The mannequin has come off his
bike and, needless to say, the half dressed side in the
jeans and t-shirt is in a bad way. Apart from the extra
pain, disfiguring and possibly life-changing injuries
wearing the incorrect clothing can cause, will this also
affect the claim you can make if the accident technically
wasn’t your fault?
Potentially there could be a reduction in the
damages that you receive for wearing the incorrect
clothing. In the case of O’Connell v Jackson, it
was held on appeal that “a person was guilty of
contributory negligence if he ought to have foreseen
that if he did not act as a reasonably prudent man he
might be hurt himself and in his reckonings he must106 | 100% Biker | issue 250 | http://www.100-biker.co.uk
take into account the possibility of others being careless.” In
this case the defendant pulled out of a side road into the path of
the claimant who was not wearing a helmet and the claimant
sustained a brain injury. It was held that as he was not wearing
a helmet his damages would be reduced by 15%.
So, in essence, if you don’t wear the correct clothing and
safety equipment, you may not recover the full amount of
damages you are entitled to, even if the accident wasn’t your
fault. There are always exceptions and arguments around
the basic principle, but frankly it really isn’t worth putting
yourself in the position where you need a creative lawyer to try
and reduce your contributory negligence.Riding inappropriately
Another area of confusion and argument relates to those
situations when a car pulls out of a side road into the path
of your bike travelling on the main road. Quite often the
defendant will argue that you were travelling too fast for
the circumstances and, if you had been travelling at a more
reasonable speed, then the collision would not have occurred.
On these occasions you firstly need your lawyer to fight your
corner as everyone wants to blame a biker; I have had a number
of cases where such arguments have been raised but the
claimant has been 100% successful with some stubborn arguing.
However, it is important to be realistic. If you were travelling
too fast—and by this I mean for the road conditions and not
just for the speed limit—then you may be held contributory
negligent. There is established case law in relation to this area,
one such case being Hardy v Walder in which the claimant was
held to be 15% contributory negligent as he was overtaking
and travelling at speed on his approach to the junction.Conclusion
So you might think that your claim will be straight
forward and you will receive 100% compensation, but the
above whistle-stop tour shows that it might not be that
straightforward. There are many more examples and
exceptions to the rules, but it is worth bearing this in
mind and, if nothing else, hopefully it will encourage
you to take the extra precautions in terms of what
you wear and how you ride. The most important
message is to try and stay safe and protect
yourself, and to ensure that all of the arguments
are explored if you find yourself in a situation
where contributory negligence is alleged.