Do you have to wear proper motorcycle gear? UK law explained

It’s a hot day. You’re only popping down the road on your bike. What’s the worst that can happen?

Well, you could get knocked off, but what if you’re not wearing ‘proper’ motorcycle riding kit? Could it affect an injury claim?

What should I wear on a motorcycle?

According to the Highway Code’s rules for motorcyclists (83-88) at the time of writing, the rider and pillion have to wear a helmet, and are advised to wear eye protectors. They should consider ear protection. Motorcyclists are also advised that ‘strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision.’ Here are the key rules regarding riding kit… take notice of the language used.

• Rule 83: On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. This does not apply to a follower of the Sikh religion while wearing a turban. Helmets MUST comply with the Regulations and they MUST be fastened securely. Riders and passengers of motor tricycles and quadricycles, also called quadbikes, should also wear a protective helmet. Before each journey check that your helmet visor is clean and in good condition.

• Rule 84: It is also advisable to wear eye protectors, which MUST comply with the Regulations. Scratched or poorly fitting eye protectors can limit your view when riding, particularly in bright sunshine and the hours of darkness. Consider wearing ear protection. Strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision.

• Rule 86: Daylight riding. Make yourself as visible as possible from the side as well as the front and rear. You could wear a light or brightly coloured helmet and fluorescent clothing or strips. Dipped headlights, even in good daylight, may also make you more conspicuous. However, be aware that other vehicle drivers may still not have seen you, or judged your distance or speed correctly, especially at junctions.

• Rule 87: Riding in the dark. Wear reflective clothing or strips to improve your visibility in the dark. These reflect light from the headlamps of other vehicles, making you visible from a longer distance. See Rules 113–116 for lighting requirements.

Also, from 1st July 2011, motorcycle test examiners have had the power to halt a test if the rider isn’t in ‘suitable clothing’, the DVSA’s definition of which is the following:

• Motorcycle boots or other sturdy footwear that provides support and ankle protection.

• Textile or leather motorcycle trousers, or heavy denim trousers.

• Textile or leather motorcycle jacket, or heavy denim jacket with several layers underneath

• Motorcycle gloves

Advice on the best kit to wear is also given to riders in element A of the CBT (compulsory basic training).

Is it law to wear protective gear on a bike?

No, and the language used in the Highway code is key here. I asked Andrew Dalton, senior solicitor advocate and founding partner of White Dalton Motorcycle Solicitors to interpret it for us…

“In Rule 84, what the Highway Code actually says is that strong boots etc ‘may help to protect you’. This is an observation,” Andrew says. “It is not advice such as ‘could wear’ a light or brightly coloured helmet.” Even that advice isn’t a demand, like Rule 83’s ‘MUST wear a protective helmet’.

Andrew goes on to point out that, despite the advice that riders could wear reflective gear, “wearing a dark helmet or no hi-viz kit has not had any effect on any case in any English higher court (by that I mean a court that can set a legal precedent) because if the motorcyclist was there to be seen, he or she was there to be seen in a black helmet and a black jacket.

“The cause of the accident would not be the dark helmet – it would be the driver’s failure to see the motorcyclist. I have had this argument raised twice at trial, and both times the argument was dismissed by the court on the simple grounds that the motorcycle was not invisible and was there to be seen, and the driver failed to see a man on a motorcycle with an illuminated headlight.

“There is very mixed evidence as to whether hi visibility clothing actually helps ‘conspicuity’ and in order for a defendant to show contributory negligence the defendant would have to show a duty to wear this. All the Highway Code has is an observation that motorcycle gear ‘may help to protect you’. It does not say you should or must wear it.”

Despite the casual look, this rider is in fully CE-approved protective bike gear

What is contributory negligence?

Put simply, Contributory Negligence is where a claimant is determined to have had some effect on the outcome of an incident.

In 1972, a car driven by Harold Froom collided with another car, driven by Brian Butcher. The accident was deemed to be entirely the fault of Mr Butcher, and the judge in the original trial awarded Mr Froom £450 in general damages (around £2,600 today).

But Mr Froom wasn’t wearing his seatbelt.

While belts had to be fitted to the front seats of cars at this time, they didn’t legally have to be worn until 1983 (1989 for children under 14 in the rear, and 1991 for adults in the back).

Mr Butcher’s solicitor appealed the value of the damages, and Lord Denning (known back then as ‘the people’s judge)’ held that “since the plaintiff's injuries to the head and chest would have been avoided by the wearing of a seat belt, the damages on that account should be reduced by 25%”.

Since 1968, the Highway Code had advised drivers to wear their seatbelts, so it was ruled that Mr Froom should have known the safety implications. His payout was reduced to £350 (about £2,000 now). Importantly, there was a seatbelt fitted to be used by Mr Froom, and he made the conscious decision not to use it.

In 1983, the wearing of seatbelts became law, and the Highway Code now states in rule 99 that ‘You MUST wear a seat belt… if one is fitted’. See that language again?

Lord Denning’s decision was: “Seeing that it is compulsory to fit seatbelts, Parliament must have thought it sensible to wear them. But it did not make it compulsory for anyone to wear a seatbelt. Everyone is free to wear it or not as he pleases. Free in this sense, that if he does not wear it he is free from any penalty by the magistrates. Free in the sense that everyone is free to run his head against a brick wall, if he pleases. He can do it if he likes without being punished by the law. But it is not a sensible thing to do. If he does it, it is his own fault; and he has only himself to thank for the consequences.”

Lord Denning went on to say that “In determining responsibility, the law eliminates the personal equation. It takes no notice of the views of the particular individual or of others like him. It requires everyone to exercise all such precautions as a man of ordinary prudence would observe.”

It wasn’t the first time contributory negligence had an effect on a case – previous rulings had seen a reduction in damages paid, but Lord Denning’s led to the decision that, in the case of injuries having been entirely avoidable through wearing a seat belt, damages would be reduced by a set 25%. If only some of the injuries would have been avoided, the reduction should be 15%, and if none of a plaintiff’s injuries would have been avoided had they been wearing a seat belt, they would not have their claim reduced.

“Whenever there is an accident,” said Lord Denning, “the negligent driver must bear by far the greatest share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seatbelt, the injured person must bear some share.”

Could a motorcycle injury claim be reduced?

So does the case of Froom vs Butcher mean that failing to wear appropriate motorcycle riding gear could affect a claim for injury made against a third party? Andrew says not: “Contributory negligence is fact based, but the defendant [for example the driver that knocks a rider off their bike] carries the burden of proof. The defending insurer would need to prove that you, the rider, had a duty to wear protective kit; a suggestion in the Highway Code is not a duty.

“Then they would have to prove a breach of such a duty. Then they would have to show that your ‘breach’ was causative of your injury or the worsening of it.

“They would have to get a medical expert to persuade the court that he or she could forecast what your injury would have been with, for example, footwear that met the suggestion contained within the Highway Code – so strong boots could be an army boot, a work boot, or a hiking boot.”

But what if the rider was wearing trainers? “The expert would have to find a reputable study or two that compared the injury outcomes as between a strong boot – like a pair of hiking boots – and a trainer,” says Andrew. “There is no such evidence so that burden will not be discharged.

“The defendant’s insurer would then have the final difficulty of the judge apportioning culpability. Although the injured party may have ridden their bike without all the ‘proper’ clothing, it is not blameworthy. They had a reasonable expectation that they would not be T-boned. The driver who failed to give way is the one who had undoubtedly carried out the causative negligence. Compare this to the logic of Froom v Butcher: the motorcyclist has not actively chosen to dispense with the installed safety gear – he has chosen to ride in trainers, rather than stout boots. A seat belt definitely stops a human being smashed through a windscreen. The protective properties of, say, a Timberland boot, are not self-proving over a Nike Air trainer”.

So Contributory Negligence is irrelevant to motorcycle injury claims?

At the time of writing, the Highway code only offers the opinion, in Rule 84, that ‘Strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision’. But Rule 83 is quite different, saying you ‘MUST wear a protective helmet’, and contributory negligence has had an influence here. Andrew gives an example: “Where a head or facial injury occurs due in part to an un-buckled helmet strap, for instance, there will be a 10% reduction in the claim due to contributory negligence. Authority for this stems from Capps vs Miller (1989) 1 WLR 839 Court of Appeal, despite the car driver being intoxicated.

“If you’re not wearing a helmet at all, expect a 15% reduction in the claim after O’Connell vs Jackson (1972) 1 QB 270. The defendant’s medical witness stated that wearing a crash helmet would have reduced the gravity of the plaintiff’s head injuries. The judge initially found that the plaintiff was not contributorily negligent, but when it went to appeal, the fact that the Highway Code told riders to wear a protective helmet meant it was found that ‘the probable effectiveness of crash helmets in reducing the risk of a serious injury was solidly established’ and the court reduced the costs by 15%. Both advice AND a solid body of evidence showing risk reduction are prerequisites for this legal logic to bite.”

Do bikers have to wear CE-approved kit?

No, there is no legal requirement to wear any protective equipment when riding a motorcycle in the UK, except a properly certified helmet. All motorcycle kit sold in the UK and EU now has to be CE certified, but the PPE clothing regulation applies to the SALE of motorcycle riding kit, not the use of it.

Anyone selling motorcycle gloves, boots, jackets, trousers etc in the UK is legally-required to ensure it meets the minimum requirements of safety based on repeatable lab testing standards. It helps you make more informed choices when buying, as explained in this guide to the safest motorcycle riding kit.

But you don’t have to wear it.

Of course, common sense says that you’ll have less chance of suffering injury if you are wearing some decent motorbike gear, and our honest, in-depth reviews should help you choose the best for you.

As Andrew says, “Hospital food doesn’t taste any better if the law is on your side.”

What is the legal definition of contributory negligence?

Your helmet must comply with UNECE Regulation 22:05 or 22:06, OR comply with British Standard BS 6658:1985 and carry the BSI Kitemark (but that would likely be a VERY old helmet). Or it can comply with any standard accepted by a member of the European Economic Area that offers a level of safety and protection equivalent to BS 6658:1985, and that carries a mark equivalent to the BSI Kitemark.

Helmets approved to US standards like DOT are not legal for use in the UK.

Thanks to Andrew Dalton, senior solicitor advocate and founding partner of White Dalton Motorcycle Solicitors for his help in researching this article.