Have jeans left me out of pocket?

Have jeans left me out of pocket?

I fell off my bike at about 50mph when a car in the opposite lane turned right in front of my bike. We did not make contact, but I grabbed a handful of non-ABS brake, my front end washed out and I slid down the road.

I suffered the loss of a lot of skin on my legs and I have had to have skin grafts. I was wearing regular jeans and a leather Jacket.

The defendant’s Insurers have decided I am largely to blame, and here is their logic:

1. The fall was not caused by the driver’s negligence, but my overreaction to it. There was no contact between my bike or me and his car. The police plan (the police drew up a particularly detailed plan, because there was a fear that I might die at the collision scene) shows a gap of some 1.2 metres, which they say I could have ridden through.

2. Because I was not wearing “protective” trousers they say I am largely responsible for my leg Injuries. The car driver’s Insurers have offered me 25 per cent of what my full award would be and they recently upped this to 33 per cent. My solicitors are saying to me that 50/50 represents a “good outcome” and they are pressing me to make a 50/50 offer.

My solicitors tell me that there are lots of risks with this case. I am not sure what I did wrong and while I wish that I had put my leather Jeans on that day, I was only popping out for a short ride – I was literally popping down the shops. Am I genuinely equally to blame In this collision?

Answer

No your solicitors are a perfectly decent bunch of high-street solicitors, but have no real idea about motorcycle litigation. I deal with their points as follows:

1. No actual collision: this is a red herring. A driver turning across the path of a motorcyclist knows that a motorcyclist is going to have to take avoiding action. Basic physics says that a tyre that is braking, turning and taking a heavy transfer of weight to the front wheel is going to run out of grip. The driver created a dangerous situation by his negligence and if you did not react in exactly the right way, or anticipate his every move, so long as his original negligence caused the situation the court will be very slow indeed to put any blame on you. I expect this argument to be dismissed wholly. The 1.2 metre gap will probably be wittered on about in court but if this is not dropped you need expert evidence from somebody who can speak with authority about the handling characteristics of a non-ABS motorcycle under emergency braking. This is a bad argument which the insurers will lose.

2. Trousers: this is a weak line of argument. You are under no duty to wear protective clothing. You may choose to in much the same way that somebody can drive a car with airbags, or choose not to. The Highway Code says “strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision”. In order for your trousers to be a factor they must have contributed to your injuries; they did not. They were not the ultimate protection, but nothing legal turns on this. Even If you had been in shorts, you were still not negligent. You decided to pop down to the shops wearing denim jeans, something you are absolutely entitled to do. In any event I would say that denim jeans fall within the definition of “suitable clothing” and have similar abrasion resistance to, say, motocross pants which are definitely “suitable clothing”.

Further, in order for the trousers to become a factor you must do something culpably negligent. The defence case seems to be that you need to dress to avoid the harm caused by their foolish, non-observant driver. Your case is a 100 per cent winner. Accept nothing less.

You can see the defendant’s Insurer’s psychological war on your solicitors working. By taking two fundamentally weak points they could succeed in reducing your proper compensation by half. You need someone harder and more expert In your corner.

Andrew Dalton

RiDE Magazine December 2015

Posted by Andrew Dalton. Posted on: December 8, 2016 at 12:00 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.

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