Riders injured in a crash that was not their fault may still have to accept some of the blame if they are not wearing enough protective clothing.
The legal term is “contributory negligence” and it can result in a reduced payout for riders, even if they are not at fault.
Motorcycle crash experts Maurice Blackburn Lawyers have represented many riders who have fought against contributory negligence in a lump sum common law claim for damages.
Maurice Blackburn senior associate Katie Minogue says contributory negligence is a defence often raised by the Traffic Accident Commission who represent the ‘at fault’ driver. It can cover a wide range of issues.
The defence is raised when the TAC considers that the injured person’s damages should be reduced because their injuries were contributed to by their failure to take reasonable care for their own safety.
This can be the case regardless of whether the rider’s actions partly caused the accident or if they were criminally at fault.
An example of criminal fault is not wearing a helmet, or being alcohol/drug-affected.
It can also be applied even if the rider’s actions were not illegal and did not contribute to the crash, but they were not wearing “appropriate riding gear”.
Katie says that in civil cases, the same standard is applied to all of these issues.
“In a civil setting the standard that is placed on you is that you take reasonable care for your own safety,” she says.
“In other words, you may not have caused the crash, but if you contributed to your injures by not wearing proper protective gear, your damages may be reduced due to a finding of contributory negligence.
“There is a reasonable expectation that if someone is riding a bike at high speed in shorts and thongs and not any appropriate gear, any degree by which their injury is made worse by failing to protect themselves may result in a reduction of their damages.
“It may not be illegal to ride in shorts and thongs, but a court might say you could have done more to avoid injury. It can be a persuasive part of the defence argument.”
Wearing the cost
The result is that the lump-sum payout may be reduced by a percentage, Katie says.
“The jury decides the amount of damages the injured person is entitled to, and then decides by what percentage, if any, it should be reduced by contributory negligence,” she says.
“The judge gives them some guidance but the percentage reduction is ultimately in the jury’s hands.”
Katie says the lesson for riders is to wear the gear to reduce your exposure both physically and financially.
“It’s also a good idea to seek good legal representation as soon as possible after an accident,” she says.