Legal lesson for wearing appropriate rider gear

crash Accident motorcycle road safety approved ratings killer wearing

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.

Contributory negligence

Katie Minogue Maurice Blackburn Lawyers wearing
Katie Minogue

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”.

My favourite riding gear wearing
What constitutes 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.

19 Comments

  1. If there is a debate on the Payout of a claim, when ride gear is a contributing factor to the injuries, then there should be a contractual arrangement between the rider and the insurance company (who don’t mind charging a Premium against a potential FULL claim) around the minimum requirements to meet a satisfactory level of protective clothing. Obviously there are expectations that Insurance companies have that are used as a loop hole to reduce compensation claims.

    Just my opinion though.

  2. Whilst I am not part of the shorts and thong brigade (and doubt I ever will be), there needs to some form of balance. In my opinion, if you are not at fault and get hit, you should be covered for any injuries received regardless of what clothing you are wearing or should have been wearing. If on the other hand, the rider makes an error, too bad for them if they are wearing the wrong equipment.
    Think of it like PPE (personal protective equipment), if a brick and hits you in the head and you are working on a construction site. If you are wearing a hard hat, good for you, fully covered claim. If there are no signs posted and you are not wearing a hard hat (you are in a lunch room portable and the brick comes through the roof of the portable), fully covered claim. If however there are signs posted and you chose to ignore them by no wearing a hard hat, sucks to be you.
    If the law allows shorts and thongs, well, that’s the minimum standard of PPE allowed and the relevant government departments should be held accountable under vicarious liability and duty of care until the PPE requirements are brought up the acceptable levels the government departments require

  3. The comments here are unbelievable. It seems that comprehension is not the strong point of many of you. I had a crash, that was not my fault. I was riding a little scooter and only traveling at 50kph, wearing shorts, t-shirt and thongs. During the crash my open face helmet came off, even though it was worn correctly. The Insurance Commission tried to say that I was responsible for 50% of my injuries, saying that my helmet wasn’t fitted correctly. I argued that my shattered pelvis could not have been protected by the helmet. My skull, on the other hand, may have fared better had I worn a better, full face helmet. I prevailed, luckily. Now I wear the best gear money can buy. Always.

  4. I ride on a regular basis I used to ridd daily. Never once have I got on a bike without full gear. I have several sets of gear for different weather conditions. More than once has the right gear made the difference between hospital & riding away. Get on a bike without the right gear is plain stupid.

  5. Sounds like a precedence set by a very ‘biased’ court or allowed to by a; somewhat, under prepared legal team representing the victim.
    Now to the hypothetical – by what lengths do we now apply “cumulative negligence”?….
    Take defensive driving courses for example: They have been around for years and have been recommended (quite heavily) by the majority of Australian Motoring Body. It’s not compulsory yet research has shown time and time again that a person undertaking said course has a far greater chance of avoiding a crash.
    That said; in the instance of a matter involving injuries sustained from a collision whereby, the plaintiff had sustained heavy injuries from a ‘not at fault’ collision with another vehicle. If it could be determined that the plaintiff could’ve avoided or reduced the severity of; the accident had they undertaken a defensive driving course (reasonable steps…..let’s not forget the precedence that has been set here) Does this now mean that the plaintiff is less entitled to the highest level of compensation as they did not take reasonable steps to ensure they were able to avoid/reduce injury via collision avoidance training??…..

    How far do we let this go?

    Also, has this same precedence been applied to matters where cyclists were hit by vehicles?…..in lycra?
    Seems like a cop out at the motorcycling community to me.

  6. I can understand the argument from the payout organisations (the insurers) when riders and their pillions don’t wear adequate gear or it’s not fitted properly (helmet not done up) BUT who determines that our gear is adequate.
    It would be most helpful to have a rating system to determine how good the gear is. For example, do my new gloves have 1, 2 or 5 star rating, will they stay on as I slide down the road, will they wear through? We just assume that the higher the cost the better the product.
    I have limited sympathy for the thongs and short brigade, however, a no-fault insurance scheme takes this whole argument off the table. Our (NSW) system is basically a money-saving exercise driven by cash-strapped state governments.

  7. What a crop of rubbish…so all smokers are at fault if they get cancer, if you have a drink and get something you deserve it, what about swimming at the beach…you deserve to be eaten by a shark, you eat McDonalds and get fat…..so obviously if you ride a motorbike REGARDLESS of protective gear you ARE taking a risk…its your FAULT…..BULLSHIT! The law sucks in this regard.
    In reality, the more you protect yourself the less pain your likely to feel. Some say ride with the gear you plan to fall off in….I say, ride with the plan NOT to fall off.

  8. I love reading these remarks, it’s no wonder so many people call us temporary Australians, a lot don’t have enough brains to take care of them selves. Almost 59 years riding, and the scares I have are from the surgeons, not the roadway. People spend thousands on a bike, but can’t go a few hundred more for proper clothing. Your a joke!

  9. I got motorcycle accident,found guilty ,why do I have to pay for the injury on the head of the complainant,he was not wearing a helmet,in fact he was riding with slippers and did not even have his driving licence with him

  10. Tricky. The argument is that because your not in protective clothing, you injures are worse than if you were in better cloths, therefore you don’t get fully compensated. Trouble is that it’s a small step from clothing to choice of transport. You ride a motorcycle and if you had been in a car you would be fine, and therefore not entitled to full compensation. I don’t know if the law protects us from this slippery slope, and am wondering if it’s just a ploy by insurance companies.

  11. So, I drunk driver veers onto a crowded footpath, injures multiple people and they are all to blame because their choice of clothes are not sufficient to prevent their injuries. Drunk driver is let off and all injured people are then sued for damage to the car. WOW makes sense to me. If the vehicle didn’t cause an accident there would be no injury. Simple. Take responsibility for your actions, stop blaming other people.

    1. lol… the report is saying that you are making a choice by riding a motorcycle and knowing the risks that if you get into an accident wearing no protective clothing there could be a reduction in compensation. I’ve never heard walking down the street in a bathing suit getting hit by a car and it’s your fault for not wearing a three-piece suit.

  12. So it is not to long a bow to draw for TAC to suggest that should the nor at fault rider had breed in a less risk laden type of vehicle ie an Landcruiser he or she has a high level of contributory negligence solely due to their choice of transport? And TAC defends the at fault driver? Really. So the not at fault rider is paying the fees of the at fault?

  13. Ok then let’s make the protection gear a reasonable price. As rider gear needs to be quality.
    I’m an avid rider and always wear all of my protective gear every time I go out.
    More affordable technology needs to be bought forward. Eg. Better tech in helmets like heads up displays. Cameras front and rear. Commutation equipment for hands-free.
    Slot of these are already available but are so expensive to slot of your average riders.
    It’s a shame but this is a problem to some.
    Hence not wearing enough protective equipment.
    As for the fact that most incidents are drivers not seeing motorcycles. More education needs to be taught to motorists when going for there licence. More ads on the media.
    I spent 9 years riding in a third world country where bikes are everywhere and of course cars look out for bikes it’s a natural process. Here not so.
    We need more people riding to help with traffic congestion. It is a proven fact that it will reduce gridlock.

    1. How are you responsible for someone hitting you,thats absurd,you should only have to take responsibility if you are the at fault driver,not when you are the victim,I wear full gear when i ride in case I make a mistake but i shouldnt be held responsible for some a#$@hole sending a tweet while driving.

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