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"Fast Bikes", January 1, 2013

DON’T BE A STONER...

If you’ve been taking some hits from the bong then the law may not be as generous...

Who’s the dope now? And will the law still be on your side?

Q I was involved in a very bad motorcycle accident; there was a real fear I would die. I have made a much better recovery than the doctors expected, but I have some history in my medical records. I have been a controlled drug user, but I was clean at the time of the collision. However, I smoked cannabis about an hour before the collision. My medical records show this, especially as my girlfriend told the doctors I’d been smoking and had begged me not to ride home – the first bit was true, the second bit wasn’t. She has ridden with me when I have smoked. My solicitors have said there is no way I can keep this away from the other side, even though my medical records are confidential. So will this have to come out? What will it mean to my case? My solicitors said I can expect to take up to 50 percent of the blame for riding stoned.

James

A Your solicitors are right about the medical records, but totally wrong about everything else. Your night of exotic cigarettes will come out – it’s part of your hospital records and it is clearly relevant to the accident. There are no reported cases involving people who have been found to be using cannabis having their damages reduced. There are plenty of cases where the Judges have expressed strong disapproval of street drugs and this can colour their whole view of the evidence. However, it seems to me that on your facts, the cannabis can have made no difference. The police report shows you were riding at or below the speed limit in your lane when a car turned right across your path leaving you with no opportunity to avoid it. You could have been as sober as a Judge, and you still would have had the collision. So your solicitors have applied the wrong test. Any competent lawyer knows that in order to establish contributory negligence you must do something wrong (getting on a bike even mildly stoned is wrong and illegal) and that wrongful act must contribute to either the accident or your injuries. It did neither. This is hardly new law. It has been established law since 1945. Anyone who makes this fundamental mistake should not be practicing the piano, let alone the law. Check out the real credentials of the person acting by checking the Law Society’s website. No one with a law degree, let alone a competent solicitor, should get the law so utterly wrong. However, expect the Judge to be less than generous to you. Whilst as a matter of law you being a dope fiend has not made a difference, the Judge will think you are a bit of knob (I summarise) and expect a less generous settlement than if you had not been smoking. That isn’t law, but the experience of 20 or so years in front of Judges. Judges live in the real world and will not be horrified by cannabis use, but they don’t like stoners and they especially don’t like stoners who drive or ride. Your previous use of Class A drugs will not make any real difference. It is historic and you have been clean for some time.

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