When Two Wheels Are Better Than Four: Damages and Costs Advantages for Motorcyclists and Their Representatives

An important, but sometimes overlooked, feature of road traffic litigation is the distinct and preferential damages and costs regime which applies to claims arising from collisions involving motorcycles and which renders considerable benefits to the victims of motorcycle accidents, as “vulnerable road users”, when compared to car drivers and their passengers.

The sweeping changes instituted by the Civil Liability Act 2018, the Whiplash Injury Regulations 2021 (including, but not limited to the introduction of a tariff-based damages for “whiplash injuries” ) and the concomitant changes to the CPR (for example in Parts IV and V of Part 45) do not apply to motorcyclists in the same way as to the occupants of cars. Neither do they apply to passengers on motorcycles.  Although the Act does not explicitly identify passengers (and there may be scope for dispute about status of sidecar passengers, although see below), the phrase “carried in or on” in subsection (ii) appears clearly intended to include pillion passengers in the distinction. See also the definition of “using” in subsection (i).

Perhaps most notably, the distinction is clear from s.1(4) of the Civil Liability Act 2018 (‘the Act’), which provides (insofar as material to this article and with emphasis added):

“For the purposes of this Part a person suffers a whiplash injury because of driver negligence if—

(a) when the person suffers the injury, the person—

(i) is using a motor vehicle other than a motor cycle on a road or other public place in England or Wales, or

(ii) is being carried in or on a motor vehicle other than a motor cycle while another uses the vehicle on a road or other public place in England or Wales…”

As such, even if the injuries sustained by a motorcyclist could otherwise be characterised as “whiplash” injuries in the conventional sense of the term (i.e. reflecting injuries arising from the hyper-extension of soft tissues in the neck and/or back by movements associated with the “lash” of a whip)  – or even are characterised as such in the evidence – they are not covered by the Act or the subordinate legislation it spawned (e.g. the Whiplash Injury Regulations 2021; which derive from s.5(7) of the Act and also explicitly adopt, at Regulation 4(2)(e), the Act’s definition of “whiplash claim”).

Similarly, the costs strictures of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (as amended) (‘The RTA Protocol’) and the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents (as amended) (“The RTA Small Claims Protocol”) do not apply equally to claims involving motorcyclists.

For instance, as reflected in paragraph 20 of The RTA Protocol “whiplash injuries” are defined by reference to s.1 of the Act and, as reflected in 16A, a “soft tissue injury claim” is defined (with added emphasis) as:

“a claim brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury…”

Though the phrase “occupant of a motor vehicle” is not defined therein, its plain reading cannot easily be reconciled with being on (i.e. outside) a motorbike and the wider context (e.g. the distinction observed in the Act and surrounding CPR provisions) make the position clearer still.

Likewise, The RTA Small Claims Protocol prescribes those injured while using a motorcycle to the category of “vulnerable road users” (see para. 37, ibid.) and tethers the concept of “whiplash injuries” to s.1 of the Act.

This gives the victims of motorcycle accidents advantage in litigation when judged against those suffering injury when driving or being carried in a car or other vehicle.  Key practical consequences of these legal distinctions include:

1. The general damages for pain, suffering and loss of amenity (‘PSLA’) of motorcyclists are not circumscribed by the tariff system implemented by the Whiplash Injury Regulations 2021; even if they include or entirely comprise whiplash injuries.

2. That the fees for medical reports are not restricted as they are for vehicle occupants (e.g. limited to £180+VAT for GP reports and £420+VAT for a report from a Consultant Orthopaedic Surgeon); and

3. That RTA Small Claims Protocol does not apply to claims to the MIB pursuant to the Untraced Drivers’ Agreement 2017 or any subsequent or supplementary Untraced Drivers’ Agreements (i.e. “hit and run” accidents) by the rider or passenger of a motorcyclist even if it otherwise would (see para. 4.3. ibid.).

While, at first blush, the distinction between otherwise identical claims brought by motorcyclists and other road users might sound odd, the reasons behind it are deeply ingrained in the law relating to road traffic accidents and, it may be said, common sense, based upon comparable vulnerability. See, for instance, Worsfield v Howe [1980] 1 All ER 1028. Notably, the significant changes in 2022 to the Highway Code, breaches of which are typically illustrative of negligence (e.g. viz. s.38(7) of the Road Traffic Act 1988 and Goad v Butcher et al [2011] EWCA Civ per Moore-Bick LJ at [9]), also draw distinctions by reference to the relative vulnerability of motorcyclists (e.g. including them in the category of road users requiring extra care catered for in Rules 204-225; especially rules 211 to 213 at https://www.gov.uk/guidance/the-highway-code/road-users-requiring-extra-care-204-to-225).  The distinction also reflects the will of Parliament, insight into which can be gained by consideration of the Civil Liability Bill’s passage through the House of Lords in the spring of 2018 (as to which see this extract from the debate:  https://hansard.parliament.uk/lords/2018-05-10/debates/DAB4DB03-BF1C-42CA-AAE1-5E66174CDDDC/CivilLiabilityBill(HL)#317)

In order for motorcycle claimants and their representatives to enjoy these advantages, care must be exercised in understanding the operation of the rules and the statutes that underpin them and, particularly, by careful consideration of the particular circumstances of the case.