Thinking the Unthinkable- part 1

A bit of serious chat today. Given that we all ride motorbikes for the pleasure of it and consider ourselves good at it, it is difficult to contemplate being involved in a serious smash. Notwithstanding the sheer statistical evidence of motorcycle injuries around us, it is only human nature to think “It will never happen to me.” .

There are of course some techniques that can be applied to improve your riding skills and shift the odds in favour of you avoiding accidents. I shall return to some of those issues in later entries, but for today, I want to talk about some practicalities if you are unfortunate enough to have a crash.

For now, let’s look at the elegant simplicity of the solo prang; no other vehicle is involved. In scenario A, you simply lose it because of factors which are entirely under your control. These can be many and various- speed, miscalculation of riding line, failing to spot something, simply not paying attention and then upsetting the plot by over-reacting and grabbing too much brake, or whatever. Show me a rider who says he has never, ever made a mistake and sh*t himself for that split second, and I’ll show you a liar. Mostly, you get away with it and learn from the experience, but if luck is not with you on that day, then I am sorry to say (legally at least) that you have no-one to blame but yourself.

If you are minted enough to have fully comp on your steed, then at least you will get that sorted, more or less, although it can come as a bit of a shock to find that the open market value of a written-off bike has dropped like a brick down a well since you rode out of the showroom 15 months earlier.

If the thing is repairable, then you at least get it back looking much like it did before you dropped it, and the only real pain is likely to come when you get the next year’s quote for renewal.

If you are unfortunate enough in this situation to drop the bike and damage yourself significantly, then you still have only yourself to blame. Just because there is an injury involved does not mean someone is liable to pay compensation and I don’t think there is an insurance policy on earth which will cover you for the cost of injury which you inflict upon yourself.

Secondly, we have the solo crash caused by external factors which are not under your control. Perhaps the most common one is some kind of defect in the road itself. Now we get into the murky waters of the Highways Act 1980 and here I must stress that just because you hit gravel/diesel/chippings/leaves/broken glass/sileage/pothole and take a spill does not mean you have an automatic right to compensation from the local highway authority. One thing that struck me forcibly on my return to riding after a break of some 20 years was how really bad the roads had become. This seems to be universal; Norfolk, Devon, Hampshire, the Midlands, the North- I have revisited them all and things are much worse than they used to be. There is extensive patching, drifts of chippings hither and yon, and of course bloody gurt potholes.
The local authority is obliged to keep the highway reasonably safe, but as so often in the law, what is “reasonable” is a highly flexible concept. Obviously, the higher the grade of road, the better one would expect it to be- a primary A road should be kept in better nick than an unclassified rural lane which is used once in a blue moon by farmer John on his AJS to get to the pub. (This logic stalls somewhat when you look at the quality of the patching on parts of the M25).

What this means in real life is that if you crash because of a defect in the road surface, the local authority will not necessarily be liable, even if the defect is staring them in the face. Firstly, you have to show that the defect is so bad that it constitutes a danger to those using the road. A minor or even a moderate defect may not be enough to qualify and if it doesn’t, then the local authority is entitled to disregard it. Highways are not perfect, remember, only “reasonable”. There is no list of which defects are bad enough- it all depends on the facts of each case, but the more dramatic the problem, the greater the chance of it being held to be a danger.

If the defect is a danger, then the Highways Act says the authority has to repair it, but here is the catch- even then the authority can escape liability if it can show that it operates a reasonable (here we go again) system of inspection and repair. In other words, provided their system is reasonable overall, then they won’t be liable even though they failed to get round to fixing your pet defect before you crashed on it.

This is a tricky concept for many people to grasp and this piece of law was very much prompted by practical considerations- put simply, if it did not exist, just about every local authority in the UK would be bankrupt by now trying to keep up with the never-ending round of road repairs and the claims brought upon the back of them.

However, you should always have a word with a reputable motorcycle solicitor if you have a crash because of the state of the highway. It should cost you nothing and if he tells you there is no claim, at least you know you have tried. The golden rule here is to take some decent photos of the crash site- if you are laid up with two broken wrists, then get a mate or family member to do it for you. The sooner, the better. And make sure they are decent photos- you need a clear close-up of the defect, with a ruler or 50p piece on edge standing there to show the depth of any hole, the extent of the spillage, or whatever; then a couple further away showing the thing in the context of the road overall. Make sure there is something in the picture to verify the location- road name, recognisable building, lamppost number.

If anyone saw it happen, get their name and address if you are in a fit state to do so. Report the defect to the local council at this stage only if you already have the photos, otherwise leave it. You don’t want your evidence disappearing overnight.

Then we have the crash caused purely by mechanical defect in the bike. Put simply, this is nearly always down to the owner, in which case it’s tough- there is no-one else to blame. The incidence of true design or manufacturing defects in a motorcycle is pretty rare, even more so for them to be overlooked and no recall issued. They do happen, but I have only ever come across one such case in over 26 years of injury work. The only sound advice if you think this has happened to you is, again, to have a word with a decent motorcycle solicitor- and keep every bit of paper you can find relating to the bike.

If you have read this far, congratulations on overcoming the mental block engendered by the words “Highways Act 1980”- that’s all for now, but in part 2, I shall expound upon the practicalities of the crash involving you and other vehicles.

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