The Blame Game: and how to play it….

This is the sixth Legal Eagle article by our guest writer Tony Carter. Tony is a former police rider, RoSPA examiner and a trained accident investigator. Still biking, he works for the well-known legal firm of McMillan Williams, whose highly qualified team specialises in motorcycling and the law, from insurance claims to motoring offences.

If you’ve ever felt that society in general is against motorcyclists, you may be right, especially if you are unfortunate enough to have an accident.

To the non-riding public, bikers can seem fast, aggressive and even downright anti-social. All of these perceptions, whether valid or not, make insurers and some lawyers all too keen to claim a rider is blameworthy in a crash – even if the facts might suggest otherwise. In this piece, Tony describes what you can do to avoid being ‘fitted up’ on the basis of a stereotyped public image and how you can help avoid liability by learning the rules of the Blame Game.

Most insurers are keen to maintain profit margins, and one way they can do this is to try and shift blame in an accident. Even if you are hit on your bike by a car, the driver’s insurer may try to argue something known as ‘ contributory negligence’ – i.e. that you were in part to blame – thereby reducing the payout. Sometimes this can reduce the insurer’s liability to nil – meaning you get nothing for your smashed bike, injuries and time off work. Tony looks at various aspects of rider behaviour and how what we do, or not do, can affect how the law, and other drivers, see us.

Filtering

As discussed in my earlier article on this subject on Bigbikemad.com, filtering is legal. Despite this, many defendant insurers and law firms still try to use the case of Powell v Moody (1966) which is unfavourable to the rider. However if they do, you should challenge it right away. There is more favourable case law out there, and in any case, filtering crashes have to be judged on the evidence and on merit, not on some dusty old bit of case law. Every case is different and the law recognises that.

The golden rule is to behave politely and filter cautiously and in compliance with some basic principles; 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 not causing cause other vehicles to alter course or speed. By riding like this you will stand a good chance of reducing or eliminating liability.

Wearing protective gear

We’ve all seen riders who, during the hot summer weather have chosen to wear nothing more than a pair of shorts and a T-shirt. The sight makes anyone who has had an accident wince – if they crash it’s gonna hurt. But, will it affect their case? Are they actually being negligent? The answer may surprise you.

Let’s look at crash helmets first. It’s 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. If the injuries could have been substantially reduced by you wearing a helmet, then the amount of compensation could again be reduced by an appropriate percentage.

So far so straightforward. But what about leathers, gloves or body armour? In respect of such gear, 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. Counter-intuitive, but true.

Possibly one of the reasons is because what is considered as ‘appropriate protective equipment’ is subjective and it’s not a legal requirement to wear anything other than a securely-fastened crash helmet. This may change in the future, but at the moment, in terms of kit, only the wearing of a crash helmet is likely to have a direct bearing on how your level of compensation may be affected. Strange but true.

Speeding

It’s not uncommon for the other side to make an allegation of excess speed, particularly when motorcycles are involved. But, perhaps surprisingly, it’s not for you to prove that you were travelling at or below the speed limit, it is for the other side to prove that you were exceeding the limit. If you behave like a complete plonker and wrap your bike around at car at 100mph, then there will be a police investigation and your speed will be a factor counting against you.

However, in most cases such detailed and incontrovertible evidence is not available. In practice, few cases feature excessive speed and the chance of having this proven against you is unlikely. But this is not a licence to speed. Indeed the lesson to be learnt is that, if you want to be sure of avoiding liability – then you need to avoid the inappropriate use of speed. Even if no one can prove you were speeding, getting away with it will not be much consolation to you as you lie smashed up in your hospital bed.

Riding without licence or insurance

If you get caught without a licence or insurance you are going to add to the woes of being in an accident, just when you don’t need the hassle. You should therefore make sure you have both. However, 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.

Drink or drugs

Here the law is quite clear. If you are mad enough to ride a bike having consumed alcohol or drugs then this IS the basis of a case for contributory negligence. To avoid this, just DON’T.

Talking too much…

We’re not thinking about turning round to speak to your pillion while riding….just, if you are unfortunate enough to have an off, make sure that you have your story straight before you say anything; by all means co-operate with the Police and emergency services, but try not to say too much at the scene. If you are worried, speak to a specialist personal injury solicitor, as soon as you can. They can determine what is and is not likely to affect your claim.

Conclusion

It won’t have escaped the attention of many experienced riders reading this that, to some extent, the responsibility for what happens on the road rests with the rider. Even when another vehicle is at fault, your own behaviour can do much to help or hinder your case. It’s not a matter of riding like goody-two-shoes all the time – just being aware that other members of the travelling public, or their insurers, may be all too willing to label you in unfavorable terms should the worst happen.