I decided to take the scenic route to pick up a takeaway curry for myself and my husband – top boxes are very useful.
Unfortunately the journey was interrupted when a car pulled out in front of me. I jumped on the brakes but my front end buckled and I slid down the road.
My problems are these; the other driver’s Insurance company has admitted liability but has also raised some arguments. In the collision, I broke four toes and I have been left with some quite angry looking scars. I am still a young woman and I have developed keloid scarring – dark scarring – on my skin, I am of mixed Jamaican/Scottish heritage and my dermatologist says this is a known consequence of scarring to Afro-Caribbean skin types.
The defendant’s arguments are as follows: as to the scarring and my toes, the defence is saying that I should have had “proper” motorcycle boots, with steel toe caps and “appropriate specialist trousers.” I was wearing ordinary jeans.
My solicitors seem unsure about the protective clothing point. They seem to be thinking more about protective gear in a Health and Safety environment rather than a motorcycle. What do you think?
You have told me that you were wearing CE-approved soft ‘baseball-type’ high-top boots made by a very well-known manufacturer. These boots have malleolus (ankle) protection, a rigid sole to protect from crushes, and a box section for the heel and toe. They are stout boots. There is a potential but weak argument had you injured your foot while wearing ballet pumps or trainers but it does not get off the ground with you wearing soft boots with CE approved armour. Whoever wrote the letter from the Insurers is clearly proud to display their ignorance. I have not seen “steel toe-capped motorcycle boots” which they apparently think are standard since about 1985, which is before you were born.
The ordinary denim jeans point is just as weak. The law looks at what causes the injury. In this case, your slide down the road. It then looks to see if you contributed by culpable wrong-doing on your part to worsening your injuries. The only relevant guidance comes from Section 84 of the Highway Code, which recommends “strong boots” which you were wearing along with gloves and suitable clothing that will help protect you.
However, even if you had not followed Section 84 (you have), it would not be enough to raise contributory negligence against you. Unlike, for example, falling to strap up your helmet which can impact the overall value of a claim, if the unbuckling leads to additional harm. There is a duty in law to wear a buckled helmet; you have no duty in law to wear “appropriate specialist trousers.” in the circumstances of your case, there is no discount.
In so far as your scarring is concerned, your photographs show me some quite obvious and visible scarring either side of your knee. All practitioners use a text called the ‘Judicial College Guidelines’ for the valuation of injuries, and the bracket which you most obviously sit in is “a single noticeable scar, or several superficial scars, of legs, with some minor cosmetic defect.” However, you have developed keloid scarring which does make the scarring more significantly obvious, so it is my view that you go beyond the guideline awards.
The courts will not be unsympathetic to a young woman having very visible scarring in a place which means that your scars would be on display if you wore a summer skirt, swimwear or shorts. I think the majority of judges would award above the approximately ~£7000 upper level for scarring to the legs, as you have had a complication which is not really contemplated is the guidelines.
RiDE Magazine July 2019