I suffered pretty nasty injuries in the unavoidable collision, which may stop me returning to my manual job. Two things are really bothering me.
The first is out of the blue, my solicitor (I have checked and he is an admitted solicitor) said because my visor was up and I was wearing sunglasses on a bright sunny day, I should expect a reduction in the damages awarded me by way of contributory negligence. The letter is quite cleverly worded. It says: “You could be found to be contributory negligent to your accident as you had your visor up”. The solicitor then says he would argue against it.
The second thing that worries me is that this solicitor will not bring a claim for my damaged motorcycle and kit which is third-party only. My insurers have said that their appointed solicitors can either bring all of the claim or none of it. My personal injury solicitor has said it is not his firm’s policy to bring claims for vehicle and kit damage in their “serious injury unit” so I should raise a formal complaint through my insurers about their appointed solicitors.
Am I getting good advice? Should I be worried about having my visor up? Is it a real risk?
Answer
You are receiving monumentally bad advice. I have been a motorcycle courtroom lawyer for 25 years and I have never heard an allegation that riding with sunglasses on and your visor up in sunny weather at 30mph is contributory negligence. If it is, I ride negligently pretty well every day. My chosen method of eye protection is a pair of Oakley Transitions lenses in a sports frame.
This person may be a solicitor but he does not seem to have much of a clue. I am surprised he has put forward such a thought and it worries me he can only have three reasons for this. The first is that he is incompetent. If so, sack him. The second is he wants to soften you up for a lower settlement. If so, sack him. The third is that he wants to set up a non-defence so he can tell you that he beat down the opposition and he is a very clever and tough lawyer. If so, he is dishonest, so sack him.
I think the answer is the first one: he’s Incompetent, This is reinforced by him telling you he is “too grand’ to bring a claim for your bike. The Civil Procedural Rules are clear. You bring one claim for all losses arising out of one accident. It is clearly set out In Part 7 of the Civil Procedures Rules and Practice Direction 16.4 says one solicitor brings one claim for all losses In one action. This basic principle of pleading has certainly been around since at least 1873, so I have no Idea what this admitted solicitor is talking about.
Your insurers and their solicitors are 100% right. One solicitor brings all of your claim and you cannot spilt off parts of your claim to different solicitors. The idea suggested to you by your alleged “personal injury specialist solicitor” that you should formally complain about your insurers is nonsensical. Do not waste your time complaining about your insurance appointed solicitors. They have done nothing wrong.
However, when a supposedly specialist personal injury solicitor makes two basic errors in the first three weeks of instruction, the it is time to find somebody that knows what they are doing.
Andrew Dalton
RiDE Magazine February 2019
