contributory negligence

This is the legal term for a claimant being held partly to blame for his motorbike accident.   This basic legal concept can have a significant effect upon the value of a motorcycle accident claim, not just for personal injury, but for associated financial losses as well.
If a judge decides that there is evidence that a claimant was partly to blame for the motorbike accident which led to his injury claim, then he has a wide-ranging discretion to reduce the whole injury claim by whatever proportion or percentage he feels is fair.  The logic of this is simple- why should a defendant pay the entirety of a claim if in fact the claimant’s own carelessness has contributed to the situation in which he finds himself?
Motorbike Contributory negligence is likely to be argued by the defendant and his insurers where there is evidence to suggest that the claimant:-
  • Was riding motorcycle at an excessive speed;
  • Was poorly positioned or otherwise not making sensible allowance for the road conditions or layout;
  • Was giving a misleading signal
So, for example, if the claimant is riding along the main road (and therefore has right of way), at a sensible speed, when the defendant in his car pulls into his path from a side road and injures him, there is a primary accident claim.  The defendant was negligent in pulling out and not giving way.  However, if the evidence shows that the claimant had forgotten to cancel his left indicator from a previous turn, so it was merrily flashing away as he approached the side road, that could raise the argument that the claimant himself was partly to blame.  Yes, the defendant should not have relied upon the indication and assumed the claimant was going to turn left; but equally the claimant should not have negligently been giving a misleading signal.
The same argument applies to speed.  It is not necessarily negligent to exceed the speed limit (although it is a criminal traffic offence) but if you do and are unable to avoid a smash because of it, you are likely to find your personal injury claim reduced for that partial blame.
In car cases, one of the most common contributory negligence arguments is failure by the claimant to wear a seat belt.  This will result in what is now almost a “standard” reduction in the claim of:-
  • 25% if wearing seatbelt would probably have avoided injury entirely; or
  • 15% if wearing it would have reduced, but not avoided, the injury
By analogy, it would be perfectly possible for the defendant to argue that the claimant motorcyclist was contributorily negligent if, for example, he was not wearing proper protective clothing.  I have yet to see this line being raised in any of my cases, but it is certainly feasible.  I believe it would take a fairly blatant failure to persuade a judge to reduce an accident claim for not wearing full leathers- but if a claimant was not wearing a helmet, that would without doubt lead to a dramatic reduction in any claim for a head injury.
Other equipment is more problematic.  Where do you draw the line?  A rider wearing jeans and trainers might possibly suffer more significant injury in a crash than if he had been wearing leathers and boots, but it would be a harsh judge who would say that jeans and trainers in themselves are totally unsuitable for a motorcycle.  Wearing shorts and flipflops, on the other hand, probably would be.  Not wearing gloves is just plain foolish, as is not wearing a helmet, since hands and head are highly likely to hit the ground in just about any spill.
It is all a question of degree.  Let’s face it, not all motorbike riders can afford full leathers or would want to wear them even if they could.  I always do, but there was a time in my early days when I rode in jeans, simply because I could afford a leather jacket and boots, but not leather trousers.   It does make me shake my head ruefully when I see some bloke on the latest £15,000 worth of sports bike, but not having spent the £1,000 or less it would take to kit up in full protective gear.  But that is just me and riding kit, at least to some degree, is a matter of choice.
It must be stressed that not every piece of carelessness leads to a finding of contributory negligence- there has to be some link between what the claimant was doing wrong and the consequences of the incident.  So, if the claimant suffers a broken wrist, but no leg injury, then it is utterly irrelevant whether he was wearing boots, trainers, flip-flops or high heels.
One of the most distressing aspects of contributory negligence is its application in fatal accident claims, where the family or dependants of a dead motorcyclist are claiming as a result of his death.  The law provides that where someone has been killed because of the carelessness of another, then not only can the estate of the victim claim for certain expenses associated with the death (such as funeral expenses); but those dependant upon him can also claim for loss of financial security caused by his death.  A typical example would be a widow and young children deprived of the income and support of a father.  They can claim against the defendant not only for bereavement (which is a fixed sum in law, currently £11,800), but also for financial loss into the future, because the death has deprived them of his support.
What is often difficult is trying to explain to these innocent victims why their claims should be reduced if there is evidence that the deceased was partly to blame for his own death; eg. because of the manner of his riding.  Isn’t it bad enough for a bereaved family to have to cope as it is, without the law then slicing off part of their motorbike accident compensation for something that was none of their doing?
Unfortunately, there is a logical, if somewhat harsh explanation for this. Let’s assume for the sake of example that the claimant is killed in the side-road situation outlined earlier.  Let’s also assume that the motorcycle accident is mostly the fault of the car driver, but that the evidence shows that the motorbike was being ridden too fast and that this contributed to the accident.
The rider leaves a widow aged 30, who did not work; and two children under 10.  His income, say £2,000 per month, was the only support for the household.   The usual approach would be to base the claim for dependency on ⅔ of the rider’s income, it being very roughly estimated that he would spend that proportion on the family as a whole and the rest on himself.  Put at its simplest, this could give rise to a claim for some £1,330 per month, extending forward until the youngest child reached 18.  Such injury claims can run into very high figures indeed.
If, however, the evidence suggests that the rider was 25% to blame for the crash, then the whole claim would be reduced by that amount.  Suppose the rider had survived, but been unable to work because of his injuries.  His claim would have included a claim for loss of earnings and would be subject to a 25% reduction for his own partial blame for the crash.  Why then, goes the argument, should the dependants have a better claim in the event of his death than he himself would have had if he had lived?   The obvious answer is that they should not, so the law applies the same reduction for the same element of partial blame.  It is not a question of the dependants being innocent; it is a question of their claim only arising out of the actions of the claimant and defendant and so it is right that such claim should be subject to the same rules that would have applied if the claimant had not died.
Contributory negligence can have a dramatic effect upon the overall value of a claim, especially if it is of potentially high value in the first place.  It can involve difficult questions of evidence, relevance and negotiation and is not something to be dealt with off the cuff.  Yet again, if you are unfortunate enough to be involved in a motorcycle injury claim, this is precisely the sort of issue on which you should seek the advice of a decent motorcycle injury solicitor. 
contributory negligence