Should he accept a reduction?
QMY SON WAS involved in a relatively lowspeed accident on his scooter. I am a biker so I had bought him all the proper kit. However, when he was knocked off his bike by a car, he was wearing his joggers, trainers and his helmet strap was undone — but he did manage to wear his bike jacket. Well done him. His injuries were not terrible. He skinned his hips and thighs but these are largely recovered. However, he has had a pretty serious grind taken out of the outside edge of his foot. This has taken longer than expected to heal but it seems to be recovering. He cannot wear steel toe-capped boots though and has had to take time off work as he is not allowed on-site unless he is wearing protective steel toe-caps. He has brought a claim through his motorcycle insurers, but the insurers for the other driver have said: “We accept liability for the collision on behalf of our insured driver. However we do not accept the injuries are solely caused by our insured. We note your client had his helmet unbuckled; he was wearing training shoes and non-protective trousers. He has therefore contributed to his own misfortune. We value his injuries at £3000 but we are only prepared to pay £1000 as we are of the view that he is two-thirds liable for his own injuries. We will meet the cost of his scooter in full, subject to an engineer’s assessment. We refer you to Capps v Miller.” His insurers have said that he should accept at least a reduction for his injuries. Should he?
ATHE SOLE CAUSE of your son’s injuries is the car driver pulling out. Your son had no head injuries so his unbuckled helmet is utterly irrelevant. This, incidentally, is the reason for the mysterious reference to Capps v Miller, when a claim is reduced by 10% for a head-injury case where the rider had an unbuckled helmet. There is no head injury in your son’s case.
As to the safety kit, there could be an argument because your son did not follow the Highway Code suggestion as to what should be worn — if he had, he would be less hurt. Well, it is an argument — just not a very good one. The Highway Code simply says; “strong boots, gloves and suitable clothing may protect you”. That is an observation, not a direction and it certainly has no force of law. Remember, the cause of the loss was the driver pulling out.
Losses flowing from the injury, including your son being off work, are recoverable in full. Your son needs a lawyer who is willing to present his case in court. Your son, for what sounds like relatively modest but troublesome injuries, would almost certainly not have to go to court — the judge would simply value his injuries based on what was said to him by the parties’ lawyers, the medical report into the injuries and evidence of your son’s out-ofpocket losses. The judge would simply dismiss the ‘causation’ arguments.
However, your son should not conclude his case until he has the all-clear from his own medical team when it comes to consequences of the injury to his foot. It worries me that he has had a dirty injury, ie his trainer is torn and his flesh has been exposed to road dirt. As the scooter has been paid for, this is definitely a case where your son should wait and see. If he takes a sum in full and final settlement, but then develops an infection in his foot (which can become horrendously complicated) he will not be able to go back for more money. He has three years to bring his claim. He really ought to think quite carefully about using at least two of those three years just to ensure that an infection does not surface. He will probably be absolutely fine but only time will tell for sure.