Taking your test? - illegal conditions being imposed

10 messages

DrDonnyBrago

17/06/2011 at 14:58

Hi guys, haven't been on here for a while now but nice to see some familiar names still hopping around.

http://www.dft.gov.uk/news/news-items/dsa-news-20110616

For those who don't wish to read it, it is basically saying that test candidates arriving in "non suitable" clothing will have their tests cancelled at their own expense. Given that the law states nothing more than a helmet and underpants are required, there is no legal obligation to wear protective clothing and that these "terms and conditions" are not made clear to applicants prior to booking the tests it will be interesting to see if there are any future court challenges on what appears to be a potentially illegal requirement for safety gear during the test.

I am not anti gear I might add but I do feel that it should be a choice not a legal requirement. Not to mention if it isn't illegal to ride on the road without gear then why is it not allowed for a candidate to take a government sponsored road test without it?

Your thoughts?

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Edited: 17/06/2011 at 15:04

siwel

17/06/2011 at 19:23

try turning up for a track day and saying "well i am wearing a legal helmet( but not acu approved )and i have got wollen gloves and am wearing a pair of trainers , what would happen

and i think it is the terms and coditions now ( maybe needs a legal challenge in court )

http://www.direct.gov.uk/en/Motoring/LearnerAndNewDrivers/PracticalTest/DG_178328

Wear the right clothing for your test

Talk to your trainer about choosing the best clothing you can afford. It's important to always wear the right clothing:

during training
when taking your tests
after you pass your test

If you arrive for your test and are not wearing the right clothing:

your test might not take place
you might lose your fee

The Spin Doctor

17/06/2011 at 23:27

Sigh...

Third forum with the same argument that it's not a legal requirement to ride on the road therefore it's somehow 'illegal'.

Siwel has put it excellently well IMO.

You're using the DSA's facilities for Mod One and under the direction of their staff for both parts of the test, and no doubt they've been advised by lawyers that they have a duty of care to ensure that riders taking the test have a minimum standard of protective clothing (which is in line with their own guidance, as it happens).

And I would lay odds that the decision has been provoked by someone who fell off (probably on Mod One) and was hurt because of poor protective equipment sueing the DSA for not telling them they should be wearing it.

Personally, I'd like to know if there was any consultation with the motorcycle industry on this.

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"Force has no place where there is need of skill" Herodotus 450BC :burnout:

SensibleSteve

18/06/2011 at 10:41

OK - I'm going to use loose language because it's the principles I'll try to convey, not legalese.

Hmmm ... I'd say turning up to a trackday is purchasing a service from a private company. Services provided by private companies are subject to terms and conditions that they choose to impose, such as decent quality safety gear.

I'd regard turning up to take your test as using the services of a government agency. It would seem to me to be logically consistent to offer those services within the framework of the laws imposed by the government that apply to the subject in hand - i.e. motorcycling in this situation. I don't see by what right they might request additional safety requirements. The law stipulates only legal safety gear required for motorcycle riding is helmet - then this should be the minimum requirement for taking your test. Taking a motorcycle test involves the risks inherent in riding a motorcycle, it would seem reasonable for this statement to be included in registering for the test and acceptance of this raisk on behalf of the attendee.

The Spin Doctor

18/06/2011 at 11:20

As I said, when on test you're not operating the motorcycle of your own volition, you're operating it at the direction of the examiner. IANAL, but that almost certainly means a duty of care is involved, above and beyond basic road traffic law.

Just because the DSA is a government agency does not set it above basic H&S legislation.

"Force has no place where there is need of skill" Herodotus 450BC :burnout:

DrDonnyBrago

20/06/2011 at 09:59

I'm not convinced that would hold up tbh. If for example a rider was injured whilst wearing the (basically pretty crap) gear recommended by the DSA then the DSA would hold some liability for implying that the gear was good enough (i.e. jeans, denim jacket and sturdy trainers), more liability than they would have if they had just said that there is an inherent risk to riding a motorcycle. Test candidates probably should wear protective clothing but I struggle to see how refusing to test candidates without it is a reasonable and legal measure.

The Spin Doctor

21/06/2011 at 11:09

We can argue about the legality until the cows come home but until someone tests it in court, it's a moot point. Undoubtedly the DSA and the DfT consulted their own legal team and are convinced it's legal.

With regard to the suitable clothing issue, there's no national or EU standard that has to be adhered to for recreational riders, so the DSA are merely following their own guidelines, which once again are overseen by the DfT, which incidentally come with all the appropriate warnings about adequacy of the garments.

I don't agree with the way this compulsory clothing has been introduced (apparently without consultation with the bike industry), as it's possibly the thin end of a wedge, but I can't see that the arguments about legality and appropriateness or otherwise of the advice are reasonable either.

There are far worse things happening in Europe.

"Force has no place where there is need of skill" Herodotus 450BC :burnout:

wasabi

21/06/2011 at 19:13

Thin end of the wedge.

Silentwalker

22/08/2011 at 13:10

Kev is right, it is that duty of care they have. It wouldn't be good enough the tester or the instructor saying you should wear this. If an accident were to happen any close relative could take legal action and say you're the professional, you know better, so why didn't you stop them riding?

PS hi Kev, it’s that other Pete with the GPz 900r from the Go Ride Forum that broke your walkie talkie. Wondered where you went too, great to see you’re still handing out the good advice mate.

The Spin Doctor

25/08/2011 at 19:48

Hello Pete!

Long, LONG time no hear! Good to see you're still around and about... they were good days over on the Go Ride forum...

Oddly enough, I've just tossed those radios away - they changed frequencies which made them illegal to use... bit of a bummer for those of us with a heavy investment in them!

Drop me a PM on the system when you're next online.