A few days ago I was involved in an accident when someone decided to do a three-point turn while I was filtering through traffic. My bike and I both ended up sliding down the road, hut aside from a few bumps I was fine. My gear, however, wasn’t. The driver admitted all liability, and the insurer said that they could immediately waive my excess, but I wouldn’t be compensated for my helmet and ruined protective clothes, as I didn’t have helmet and leathers cover.
This strikes me as wrong. My view is that she was negligent, and that my costs should be addressed under her liability. I appreciate that there is a concept of ‘betterment’ (I shouldn’t benefit from replacing my old items with new), but a helmet is useless after an accident and new for old is the only option.
1 suspect from the wide selection of ‘no win, no fee’ solicitors available to me that I am not the first person this has happened too, however they only seem interested if there is a personal claim to go with the clothing claim. Can you shed some light on this?
The law on restitution for a civil wrong, which is what this is, is straight forward. The law has been established, in English common law for around three hundred years, and it can trace its roots back to Republican Rome, so the principle is roughly 2,300 years old.
The same principles apply in just about every jurisdiction in the world, whether common law, such as England or Wales, the United States, Ireland, Canada, Australia and New Zealand, or in civil codes such as Germany, France and Scotland. The test is ‘can money put the victim into the same position as he would have been in but for the wrongful act?’ And if money can do that, then money is the remedy.
Prior to the accident you had motorcycle kit which is now no longer serviceable. You are right as to the concept of betterment. In German law, for example, if there is not a regular second hand market for items, such as motorcycle clothing, then the new price is refunded. In English law, there is a general rule of thumb that second hand items have 25% reduced from them which, in the main, works out fairly enough. If you wanted to be really technical, you could argue that the average life of a crash helmet could be anything between three and five years, a pair of motorcycle boots for a courier would last about a year, but might last ten years for a light user, so if you wanted to be mathematical about betterment you could say that for every year of age, a pair of motorcycle boots has its value reduced by 10%.
However, in so far as protective clothing is concerned I have run this argument successfully, and I have to admit unsuccessfully, which is that motorcycle kit is designed to be virtually unbreakable in normal use. I have a pair of Alpinestars leather touring trousers which must be 15 years old, and they look absolutely pristine. Items of protective clothing which last indefinitely should not be subject to betterment. However, as I say, this argument has been accepted and rejected by different Judges.
As a general proposition your helmet might be said to have a life of three to five years, thereby giving an annual depreciation of between 33% and 20%. Your protective clothing might well last 15 years. My Rukka Armasport remains waterproof and entirely structurally sound after 15 years of use, thereby I would argue that highly robust and protective kit really has no betterment. This is a finding of fact for the Judge. There is a general rule of thumb of 25%, but it is a rule of thumb, not a rule of law.
You are quite right that personal injury lawyers are only interested if there is a personal injury claim to go with your clothing claim. This is because it is simply non-viable for you to pay a lawyer to recover your clothing claim, because his costs would be probably greater than the costs of your clothing, and unless you have an injury claim, the third party are not obliged to make any contribution to your costs. You would not thank a lawyer if he sent you a £2,000 bill for a £600 claim, and any lawyer with any level of ethics would tell you this before you even start.
If you need to press this on, you will have to do this yourself through the Small Claims Court which is designed for cases which do not need a lawyer.
Adventure Bike Rider November / December 2017