Thorneycroft

NOT YOUR FAULT

Thorneycroft – the BMF's Legal Line Solicitors – explain contributory negligence, and how to avoid it

Words: Mary Lomas Pics: Thorneycroft Solicitors

If you are 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. We recommend using a specialist motorcycle solicitor such as ourselves. This is not necessarily the solicitor appointed by your insurers, who may not be a specialist. Read on to see why, much of it comes down to contributory negligence.

If you are involved in an accident you will be looking for an admission of liability from the defendant – you want them 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, so the defendant accepts that they caused the 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 accident circumstances or to the effects of the accident. To establish contributory negligence it has to be proven that the claimant failed to take such care as a reasonable person would for their own safety. Let's take a look at a few examples.

incorrect safety clothing

Will wearing inadequate or incorrect clothing affect your claim? Potentially there could be a reduction in the damages that you receive if you were wearing 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 must take into account the possibility of others being careless.' In this case the claimant was not wearing a helmet, and the defendant pulled out of a side road into the path of the claimant. 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, if you don’t wear the correct clothing and safety equipment, apart from the fact that your injuries will be a lot worse, you may not recover the full amount of damages, even if the accident wasn’t your fault. There are always exceptions and arguments around the basic principle, but 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, which is 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. 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 to be 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 in the approach to the junction.

Conclusion

This is just a whistle stop tour of a complex issue. 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 ensure that all of the arguments are explored if you find yourself in a situation where contributory negligence is alleged.