Should I have been wearing ‘specialist’ trousers?

Should I have been wearing ‘specialist’ trousers?

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?

Answer

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.

Andrew Dalton

RiDE Magazine July 2019

Disclaimer: The legal advice and statements contained within this/these articles is correct at the time of printing. If you are seeking legal advice after a motorbike accident please contact us to speak directly with one of our lawyers.

Comments

  1. Many years ago when I undertook a motorcycle training course organised by Bucks County Council we were told NOT to wear steel toe-capped-boots as there is potential for the steel cap to do more harm than good as far as motorcycle crashes are concerned.

  2. Andrew DaltonDecember 23, 2019

    Absolutely correct Kit. There are two huge downsides to wearing “steels” – the first is they absolutely draw heat out of your foot. The second is they are designed to stop things being dropped on your foot, whereas a very serious crush can turn steels into a very blunt guillotine. Years ago I dealt with an absolutely shocking injury where an earth moving truck with “mud” tyres with fearsome treads absent mindedly (or perhaps deliberately) drove over a guy’s foot who was on his way to work in his work boots. I do not know what his injuries would have been in non steels but the steels in his boots crushed and traumatically amputated part of his forefoot. The rider had squeezed past the truck and was waiting by the keep left bollard. The truck driver started edging forward, our lad was pinned with nowhere to go and knew his foot was pinned. The steels crushed, and the edge of the steel toe cap sliced through his foot. Truly horrible accident, and to this day I am not convinced the truck driver was not “punishing” the rider for “jumping the queue”. I will never know, The guy in the truck does. However, had he been in ordinary bike boots his crush injuries would have been horrific I am sure.

  3. Mark LauderJanuary 17, 2020

    Would judges award less for similar injuries/scarring on a male rider?

  4. Andrew DaltonJanuary 20, 2020

    There is no modern authority for paying more for scarring on females but the reality is that a young woman with obvious scarring would get more for the particular loss of amenity of not being able to wear, for example, summer dresses or swimwear without scarring being obvious. In my experience scarred females are paid more for scarring than their male counterparts but my honest view is that females are more psychologically affected by scar tissue than most males. Call it the patriarchy, maybe male judges being paternalistic or a recognition that women are more judged on their looks than men, but the damages are greater for all but very obvious scarring on men. I have been practicing law since 1993 and I can remember arguing for “damaged marriage prospects” for young women as a baby lawyer, something one simply does not hear these days.

Leave a Reply

Your email address will not be published. Required fields are marked *

Posted by Andrew Dalton. Last modified: May 13, 2019 at 4:26 pm

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.

About RiDE Magazine

RiDE Magazine Magazine Cover Image

Ask the lawyer

Gavin Grewal, used to volunteer his time as a special constable which gave him a good insight into how evidence is gathered from accident scenes. Gavin is partner at specialist motorcycle solicitors White Dalton.

Visit the RiDE Magazine website

More Andrew Dalton Posts: