Is contributory negligence on the way?

According to the Motorcycle Riders Association, reports have emerged in Victoria that some motorcycle and scooter riders seriously injured and not wearing "protective clothing" have had their payouts reduced by up to 50 percent for "contributory negligence."

"We recently became aware of allegations that the TAC (Transport Accident Commission) was attempting to reduce compensation to riders not wearing 'protective clothing', even in cases where protective clothing was unlikely to reduce the injuries sustained," said MRA president John Karmouche.

"When approached, the TAC representative on the Victorian Motorcycle Advisory Council (VMAC) stated that she was not aware of this."

In Victoria, the TAC administers a no-fault scheme where medical and other benefits are paid irrespective of the situation, but the Bikesales Network understands that the TAC can follow the path of contributor negligence where it feels that drivers or riders have not taken reasonable steps to protect their own safety.

Recently, commentary by leading personal injury law firm, Maurice Blackburn, warned that the TAC was heading down the path of contributor negligence, due to the "rider's contribution to the seriousness of the injuries, even if the rider did not contribute to the cause of the incident".

Even allowing for the fact that Maurice Blackburn is a commercial entity, the MRA is calling for the TAC to come clean about its treatment of seriously injured motorcycle and scooter riders.

"The concept of 'no fault' coverage appears to have been put aside by the TAC. It now appears that riders are presumed negligent simply for riding a motorcycle or scooter," said Karmouche.

The MRA media release continued: "The incidents uncovered appear to be merely the tip of the iceberg. Using the same principle we now ask whether drivers of older cars that lack modern safety features, and even bicycle riders who wear Lycra and bicycle shoes instead of motorcycle style protective clothing will also be penalised. Motorcycle and scooter riders should not be discriminated against in this way.

"There is provision for the TAC to deny loss of income claims where a serious offence has been proven; however, profiteering from injured riders when no offence as has even been alleged is reprehensible."