An insurer tells you the accident was partly your fault and proposes a 50/50 liability split. You’re still healing from your wounds, and you’re not sure if you should accept that. This tactic is one of the most common pressure tactics used against injured motorcyclists in Scotland. Riders who accept without legal advice routinely lose thousands of pounds they were fully entitled to recover.
Being partly responsible does not end your claim. In Scots delict law, the Scottish legal term for civil wrongs, “shared fault”, merely means that your compensation is reduced in proportion to your share of the blame. This mechanism is rooted in the Law Reform (Contributory Negligence) Act 1945. The allegations of an insurer and the findings of a Scottish court are two entirely different things.
Let’s discuss it in detail today.
In Scottish personal injury law, the injured rider is the pursuer. The at-fault party is the defender. When the defender’s insurer argues the pursuer contributed to their injuries, that is a contributory negligence allegation.
Under Section 1 of the Law Reform (Contributory Negligence) Act 1945, if a court finds the pursuer partly responsible, the quantum of damages (the total compensation figure) is reduced by the percentage of fault apportioned to them. A £40,000 award is reduced to £30,000 in the event of a 25% finding against you. This means that the damages will not be reduced to zero.
The insurer must prove a direct causal connection between the rider’s specific conduct and the resulting injuries. A vague suggestion that the rider’s behaviour may have contributed is insufficient. They must demonstrate the specific act, explain exactly how the act caused or aggravated the result, and prove the risk of harm was reasonably foreseeable at the time.
The table below shows how apportionment of blame affects a hypothetical gross damages award of £50,000. These figures are illustrative only.
Fault Finding Against Rider | Gross Award | Reduction | Net Award |
10% contributory negligence | £50,000 | £5,000 | £45,000 |
25% contributory negligence | £50,000 | £12,500 | £37,500 |
50% contributory negligence | £50,000 | £25,000 | £25,000 |
Court-imposed liability reductions are entirely separate from any success fee deducted under a No Win No Fee agreement. Both affect your final figure. Understand each in writing before proceeding.
Insurers apply standard playbooks against riders. Recognising these allegations in advance significantly reduces their impact.
SMIDSY Collisions at Junctions: A driver pulls out and claims the rider was invisible or travelling too fast. Line-of-sight analysis and speed calculations routinely disprove these claims. A rider travelling within the speed limit on a clear road will generally not be found responsible for a driver’s failure to observe properly. However, every case turns on its specific facts.
Filtering and Overtaking: Insurers frequently say that passing stationary or slow-moving traffic was inherently unsafe. It is not. Filtering is a legal and recognised manoeuvre according to with the Highway Code.
Speed and Road Position: The rider was allegedly in the incorrect lane position or was travelling at an excessive pace, according to the defenders. Such claims are insufficiently supported in the absence of reconstruction or telemetry evidence.
Protective Gear: Claims that injuries got worse by the failure to wear hi-visibility clothing or additional protective gear. It is important to note that the Motor Cycles (Protective Helmets) Regulations 1998 mandate the wearing of a helmet, and the absence of this equipment is treated differently than the absence of optional gear.
The insurer is required to establish a direct causal relationship between the absence of specific equipment and the specific injury that was sustained for all other gear. A broken leg is not the result of the absence of a hi-vis vest.
Yes, in the right circumstances. Highway Code Rule 88 and Rule 160 recognise that motorcyclists may filter through slow-moving or stationary traffic. An insurer proposing a blanket 50/50 split because a rider was filtering is applying bias, not the law.
Safe filtering involves a low-speed differential, stationary or very slow-queued traffic, and no crossing of solid white lines. Filtering at speed near a junction, or alongside moving traffic, is where a court may find partial fault. The distinction is entirely fact-specific, and it is precisely where specialist legal advice matters most.
The burden of proof lies with the defender. They must satisfy a three-part legal test before any court will reduce your award.
All three elements must be established. An insurer who shows a rider was speeding but cannot connect that speed to the actual collision force or injury severity has not met the full test. This three-part standard applies in both Sheriff Court and Court of Session proceedings.
Act fast. Evidence disappears quickly, and insurers build their case from day one.
Request nearby CCTV footage immediately. Most systems overwrite footage regularly.
Follow these steps before making any response to the insurer.
Make a Claim Today
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We are committed to achieving the best possible outcomes, consistently delivering exceptional results and ensuring our clients receive the justice they deserve.
General personal injury firms settle road claims daily, but most lack the technical knowledge to defend a motorcycle case properly, and insurers know this fact.
A specialist knows how insurers build contributory negligence arguments against riders and how to dismantle them. They instruct accident reconstructionists, commission independent medical experts, and use the Compulsory Pre-Action Protocol (CPAP), a structured pre-litigation process requiring both parties to exchange evidence and attempt resolution before court proceedings begin to force full disclosure of the defender’s evidence early. If a fair settlement cannot be reached, they litigate through the Sheriff Court or Court of Session.
No Win No Fee funding means there are no upfront costs. If your claim fails, you typically pay no solicitor fees. If your claim is successful, a success fee will be deducted from your compensation. Some firms also charge an After the Event (ATE) insurance premium to cover the other side’s costs if the claim fails. Get both figures confirmed in writing before you agree to proceed.
Do not let an insurer’s opening position become your final outcome. If you want to make motorcycle claims in Scotland, speak to our team today for a free, no-obligation assessment.
Disclaimer: Compensation figures and examples in this article are hypothetical and for illustrative purposes only. They are not legal advice and do not guarantee any specific award. Every claim is assessed on its individual facts. Always seek advice from a regulated solicitor before taking action.