When a thief knocks you off your bike, how do you go about getting compensation?

I was knocked off my motorcycle and sustained very serious injuries when a thief, who had stolen a high performance car, rammed into me.

I certainly think he rammed into me deliberately, and luckily the Police managed to apprehend the car thief, and his partner in crime. The criminal trial has not happened yet, but the Police are satisfied that they know who the driver was. This is based on video footage taken during the chase, and the video footage shows the person they accuse of being the driver leaving through the driver’s door and the passenger legging it out of the passenger door.

The Police found the pair of them hiding under a car in a supermarket car park. They are ‘well known’ to the Police. The Solicitors appointed by my insurance brokers do not seem to have the first clue what they are doing. I have been given three different versions of events as to who I should sue, and after five months, I am not any the wiser. The driver is currently on remand awaiting trial for GBH for my injuries. First of all, can I sue anyone? If so who? Please help me, as I’m not sure what to do!

Anon

The answer is very simple and is set down in the Road Traffic Act 1988. Any known person who drives a motor car, whether that individual is a thief unlawfully using the car, or if it’s borrowed with permission, the insured driver or a named driver is deemed to be covered by the policy of insurance which affixes to that vehicle, even if the driver is a 12 year old thief.

The vehicle’s insurance company can be checked out very simply by any Solicitor through checking the central database as to who the insurer of that vehicle is. I have checked, and it is a perfectly reputable and well known insurer – in these cases they often are, but it’s still worth checking.

Unfair as it might seem, you will have to sue not only the thief (with no real hope of ever getting your money back – he is on for a long period in prison for this offence, but I would be getting Court papers ready if I were your solicitor as you know where the thieving scrote is, and he isn’t likely to be going anywhere for a fair while), but the insurance company that insures the vehicle covers that vehicle for all risks, and whilst they might resist paying until it is clear who the driver is, they will pay up in the end. You don’t need to sue the thief. The insurers will meet the judgment and should be named as a party. The only issue you might have is if there is no evidence as to who was actually driving, but you are getting into very complicated area of law, involving joint enterprise and untraced drivers.

On the basis of your evidence, with video evidence footage showing a person exiting the driver’s door, you will not have these problems. I had a very similar case, and one phone call to the investigating Police Officer made it clear they knew exactly who the driver was, and the insurance company, with a couple of safeguards, for the stolen car, made a significant interim payment to my client, and also organised his rehabilitation. Good luck.

Andrew Dalton

Fast Bikes April 2013

Two pints of lager and a packet of trouble. Unravelling the legal aftermath of Mark Stone’s riding calamities. Full of festive goodwill, and the odd pint or two, Mark offers a workmate a lift home from an afternoon session…

BIKE’S LEGAL EXPERT SATS

Mark knows he has an inexperienced pillion and is riding with a couple of pints inside him. Even if he’s under the drinkdrive limit, the judicial pendulum has swung from ‘under the limit equals blameless’ to ‘alcohol affects all driving decisions and will be taken into account’.

If the judge finds that the pillion knew Mark had taken a drink, the pillion would have to take some blame. If Mark was obviously drunk the pillion would be looking at a reduction of his damages by 20-30%. However, judges are becoming less forgiving of people who are too stupid or reckless to look after themselves.

Andrew Dalton

Senior partner with White Dalton, solicitors specialising in motorcycle-related claims

BIKES RIDING EXPERT SAYS

Drinking and riding are a dangerous combination. Besides reduced coordination, poor judgement and slowed reactions, we also have the mental side where alcohol bigs us up to believe we have Lorenzo’s skill levels. Placing an inexperienced pillion into the mix is bonkers.

Leaning in a corner is what we do naturally, but it seems far from natural to a novice and they will fight and, as in this case, sometimes win. Don’t forget, a passenger is a big percentage of the weight and they can easily influence what goes on. Ease them in gently and not on a trip like this.

Gary Baldwin

Director of Rapid Training and accident investigator for Thames Valley Police

Inflation can be a good thing, especially when it comes to tyres. Best not screw it up

I was involved in a really nasty collision as a result of my tyre blowing out. My tyre, I knew, was running at low pressure. It is a street-fightered GSX-R and I run the rear tyre pressure low(about 25 psi) because it makes wheelieing a bit easier. Not an excuse I want to give the police, but there you go.

Anyway, I had been out on the bike and I been involved in a few stand-up wheelies and generally hooning around. On my journey home I used the motorway for about 18 miles, travelling at between 90 and 100mph, when my back tyre just disintegrated. I was lucky not lose my right leg as I bounced off the central reservation. A car behind me, trying to avoid me, skidded and crashed into a car in lane two.

The police are taking me to court for dangerous driving based on my tyre blowout alone. They don’t seem worried about the speed, even though the police examiner puts it at between 80 and 100mph when the tyre blew out.

The drivers who crashed into each other are both suing me, and I can’t blame them, but should I be suing the tyre manufacturer and pleading not guilty to the dangerous driving because the pressures weren’t that low?

Anon

Oh dear. You are in a lot of trouble. The police forensic report (and the well known tyre expert’s report) all say the same thing. Your tyre had been consistently run well below the operating pressure. The tyre was throughout its life run at less than 30psi.

This has structurally weakened the tyre so that on this prolonged use at speed it has heated up and ‘delaminated’ and the shredded tyre has told the police a great deal. You had also stressed the structure of the tyre by the hard acceleration needed to wheelie.

Most of the tyre has been retrieved from the motorway and a ‘foreign object piercing’ has been ruled out. The reason the police are not pressing on the speed is because they can’t say exactly where you parted company with your bike.

The calculation is based on pedestrian throw, where if the police know where you were launched from, and where you stopped they can be pretty accurate with your speed. They don’t know for sure where you were ejected in the 20 metres or so of central reservation you remodelled with your bike. You are really lucky to have both your legs. You can expect a big bill from the Highways Agency for repair of the central reservation for your insurers to pick up.

The tyre expert is known to be absolutely straight and independent of the police – he will be believed. Taking any vehicle on the road with seriously under pressure tyres, which then leads to a blow out, is dangerous driving. The police are not daft. You have a tricked up, street-fightered Gixxer running on under pressure tyres.

The vehicle examiner points out your bike is beautifully maintained by a skilled engineer and apart from the tyres the bike is in pristine condition. He points out the aftermarket adaptations and points out some of the adaptations are typically seen in stunt bikes. I suspect the Police may have had their eye on you for a little while because they have really gone to town on investigating your collision.

No one was hurt apart from you and, all things considered, you have got off quite lightly with your injuries. Usually the police only go to this level if someone is in a body bag. However, their evidence is that you knowingly ran your bike on under pressure tyres. I suspect the dangerous driving charge will stick, and you’ll be catching the bus for at least a year and then taking your bike and car test again. But it will be the new bike test, but with a longer examination.

Probably best to check your tyres in future. And I hope your insurers know about all the mods on your bike otherwise they’ll be after you for their outlay. And as to suing the tyre manufacturer, forget it. Any tyre consistently run significantly under pressure will do this – it’s a surprise it didn’t happen sooner.

Andrew Dalton

Fast Bikes March 2013

Andrew Dalton has been writing articles for Fast Bikes Magazine for a considerable period and have condensed what we believe are the most useful articles to you. White Dalton Motorcycle Solicitors deal with personal injury claims and our sister company, Motor Defence Solicitors, deal with any road traffic offences.

Like medical advice, when it comes to legal issues a second opinion doesn’t hurt…

I was involved in a serious motorcycle accident where I broke both my wrists and both my elbows. I am a steel fabricator/welder by trade, and both my treating surgeon, and the surgeon who has reported on my case, as well as the Defendant’s own medical expert, agree that I cannot return to any sort of heavy trade.

There is a little bit of argument between them. One says I should not lift more than 10kgs and one says I should not lift more than 15kgs, both agree I cannot use hand tools, angle grinder, hammer or indeed any of the tools which I am required to use. I am going out of my mind at home, and would like to retrain. Previously, I was a decent swimmer competing at County level and I would like to re-qualify as a swimming coach, but my Solicitor advised me that I should not re-qualify in such a job, as, “I will not be mitigating my loss, as I could earn more doing something else”.

I am a practical man. I have not got a single GCSE, I was a good welder, and I am a good swimmer. I have looked at all the jobs which I think I can do, and I cannot work indoors, inside an office. I would go mental. Also, what job could I do in an office? I cannot use a keyboard, even without my injuries, I am not good on the telephone but I am enthusiastic and keen on swimming.

There are probably about three or four days’ work a week as a swimming coach. I will have to do some traveling and I would be self-employed. I have sneaked behind my Solicitor’s back and I have got my Level 1 qualification as a swimming coach, and I am halfway through my Level 2 – which means I can train junior swimmers on my own, and I have already started having job offers in for coaching at various schools and colleges. I want to do something with the rest of my life but my Solicitor is trying to stop me, even though I am ignoring him. Am I getting the right advice?

Terry, Basildon

You are getting about the worst advice you could get. When somebody has been seriously injured, the Judges love it, as indeed do insurers, when the individual tries his hand at doing something else. The “failure to mitigate” point is nonsense. I have checked out the person who is dealing with your case, and he is an admitted Solicitor, and he has been qualified for about as long as I have. I have to wonder why he is making such fundamental errors in law.

In order for the Defendants to show that you have failed to mitigate your loss (and even this term of “failure to mitigate” is one which the law does not recognise) you will have had to do something so irrational that your loss of earnings as a welder and fabricator is not linked to the accident, but your completely bizarre career choice. You have not made a bizarre career choice. You have made a rational career choice, considering your injuries, what you can do and what you are good at. I cannot even begin to start justifying your current Solicitor’s decision. You should crack on with getting your swimming coaching and do what you can to earn a living as a swimming coach. It will play brilliantly in front of a judge and I think what you are doing is absolutely to your credit. Your Solicitor, I am afraid, has got the law completely wrong.

Andrew Dalton

Fast Bikes February 2013

Andrew Dalton has been writing articles for Fast Bikes Magazine for a considerable period and have condensed what we believe are the most useful articles to you. White Dalton Motorcycle Solicitors deal with personal injury claims and our sister company, Motor Defence Solicitors, deal with any road traffic offences.

Unravelling the legal aftermath of Mark Stone’s riding calamities. Rather too keen to collect Cindy’s overly violent birthday present, Mark now risks feeling its devastating effects first hand

BIKE’S LEGAL EXPERT SAYS

The driver should check for and give way to traffic on the main carriageway, and be aware that a motorcycle might seek to overtake the truck, which the driver cannot see around. But Mark breaks a solid line, a hatched area is not for overtaking, he’s above the speed limit and has no idea what is in front of the lorry.

I’d say most judges would blame Mark 80%, others might find him wholly to blame, but previous decisions show that a vehicle turning across a lane has to make reasonable observations. The Highway Code warns motorcyclists to avoid overtaking in hatched areas.

Andrew Dalton
Senior partner with White Dalton Motorcycle Solicitors

BiKES RIDING EXPERT SAYS

Solid white lines are common enough, so you’d think Mark would know what they mean. Simply, you cannot straddle or cross them except for a few exceptions and being in a hurry isn’t one of them. The more white paint, the more potential danger. They are placed where visibility is reduced and are to stop you exposing yourself to approaching traffic.

In this case we have the added danger of a nearside junction. If you cross a solid white line and anything goes wrong you could be looking at a dangerous driving charge, the thinking being that you were warned and chose to ignore said warning.

Gary Baldwin
Director of Rapid Training and accident investigator for Thames Valley Police

Illustration by Anthony Williams, www.comicstripper.co.uk

Article from Bike Magazine
http://www.bikemagazine.co.uk/

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

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

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.

Andrew Dalton

Fast Bikes Magazine January 2013

Andrew Dalton has been writing articles for Fast Bikes Magazine for a considerable period and have condensed what we believe are the most useful articles to you. White Dalton Motorcycle Solicitors deal with personal injury claims and our sister company, Motor Defence Solicitors, deal with any road traffic offences.

Specialist motoring solicitor and ZZR1400 rider Andrew ‘Chef’ Prendergast demystifies a couple of bits of riding folklore

As a specialist road traffic solicitor I get phone calls every week from well-meaning clients saying “my mate told me…” and “I read on the Internet…” etc. Don’t get me wrong: if you have a legal, arguable defence then I will always advise my clients they have a right to put the prosecution to proof. However, while some of the points are correct, a lot are just plain wrong but these ‘myths’ seemed to have established themselves as ‘fact’, with the result that a lot of well-meaning people end up in a bit of a pickle.

NIP it in the bud

A popular myth that frequently comes up is if you, as the registered keeper, ignore a Notice of Intended Prosecution for speeding and don’t tell the police who the rider is, then they can’t identify who the alleged speeding offender is and you can’t be prosecuted.

The problem is that even though you may not get done for the speeding offence, the law requires the registered keeper to identify the rider. If you don’t you could get sentenced by the court and have six points put on your licence and a fine of up to £1000. Not good.

I also have calls where a client has read on the Internet that if they send back the NIP and tell the police it was their ‘mate’ from Spain (or insert other faraway land) who was riding the bike (even though it was them), then the police can’t do anything about it as they won’t be able to get hold of the ‘mate’.

I must say the majority of the bikers I have spoken to over the years do not think this is the greatest of ideas, but nonetheless I still get asked. In short, it is not a great idea as if you get caught deliberately lying you could face a criminal prosecution for perverting the course of justice which carries wiih it a maximum penalty of life imprisonment; and all that from an offence that may have resulted in some penalty points on your licence.

Speed demon

Another myth is if you get caught ‘doing less than lOOmph’ on the motorway on your motorbike you won’t get disqualified from riding. This is just wrong and the law is not as simple as that. When sentencing a biker or a driver the court will look at an official document called the Magistrates’ Sentencing Guidelines. These in fact state if you do get caught at any speed over 91mph in a 70mph limit and you are found guilty or plead guilty, the court has the power to disqualify you from riding for between seven and 28 days. This is in addition to a fine and court costs.

In summary, always to be careful of what you read on the Internet or what your enthusiastic but perhaps ill-informed mate down the pub tells you. However well meaning, opinions and interpretation of the law can be very wrong and could get you in trouble.

Andrew ‘Chef’ Prendergast
managing partner of
White Dalton Motorcycle Solicitors

The MCM legal column is compiled by managing partner Andrew ‘Chef’ Prendergast and his bike riding barristers and solicitors at White Dalton Motorcycle Solicitors.

Our firm deals with personal injury claims and its sister company, Motor Defence Solicitors, deals with all the motoring offences. All White Dalton lawyers know everything about bike law – and we have full bike licences too. We don’t act for insurance companies or the prosecution.

White Dalton is Britain’s most specialist motorcycle law practice, and if our professionals don’t know the answer to your question there probably isn’t one. Don’t rely on the advice from your insurance appointed solicitor, get proper independent advice.

For road traffic offences call the Motor Defence solicitors on 0800 280 0912 For non-offence cases call White Dalton motorcycle solicitors on 0800 783 6191

Our recent prize bike winner, Dan Davis, is a HEMS (helicopter emergency medical services) paramedic for the London Air Ambulance.

London’s Helicopter Emergency Medical Service is run by the London’s Air Ambulance (LAA) charity and serves the 10 million people within the M25. Established in 1989 the team operate 24 hours a day 7 days a week attending time critical and life threatening situations ranging from road traffic accidents, industrial accidents and injuries on the rail network.

LAA can provide rapid response to injuries and has a global reputation for pioneering and exacting standards with procedures ranging from pre-hospital anaesthesia to open heart surgery at the roadside.

The helicopter serves the capital during daylight hours and when it is offline, a fleet of six Skoda Octavias take over the role of providing quick response. The cars are equipped with a substantial range of life saving equipment and have a senior trauma doctor and a specially trained paramedic on-board. The cars have blue lights and hi-vis strips so they can be clearly identified as emergency response vehicles and the drivers under go rigorous training under blue light conditions.

Read more about the LAA on their website: http://www.londonsairambulance.co.uk

Dan Davis collected his prize Suzuki Inazuma from our offices today.

Dan won the bike just before Christmas by presenting his draw card at our offices. Dan is a HEMS (helicopter emergency medical services) paramedic for the London Air Ambulance. Read more about the LAA and remember to keep checking your prize draw cards each week!

Even though a biker may not be criminally liable for filtering and having a collision, it is a long established legal principle that a biker who is out of the ordinary flow of traffic by overtaking or filtering places themselves at potential risk and therefore has to take extra care. If they do not and a collision happens they may not get 100% of their claim for damages. Every case turns on its own facts and if need be judges will hear evidence and make decisions and apportion liability accordingly.

A classic Court of Appeal case involved a van driver who was waiting to pull out from a driveway when a lorry driver stopped and flashed his lights. The van pulled out slowly but a biker overtook the lorry and collided with the van. So even though the motorcyclist was on the main road and the van relied on the lorry flashing him out, the court decided the van and biker were equally to blame i.e. a 50/50 split.

Why? The court found the biker failed to see the van until the very moment of the collision and failed to keep a look out. As for the van driver, because the flash of the lights from the lorry was only permission for him to come out of the driveway it did not mean that it was safe for him to do so. The court found the van driver was still under a duty to keep a look out and had failed to do this.

In summary:

Car drivers etc., owe us bikers a high duty of care because we are vulnerable road users.

Car drivers etc., have a duty to be on the lookout for us.

If they don’t and a collision happens a court will likely find them liable either in full or in part. However, if you as a biker filter/overtake near junctions and you have a collision with a car pulling out for example, a court may well find:

You were carrying out a manoeuvre which placed a duty on you to take care of yourself.

It should have been obvious a car might have pulled out and you should have treated it with more caution.

If you don’t and a collision happens a court will likely find you liable either in full or in part. So while filtering may have its many advantages, you need to remember that if you have a collision you could be partly or fully to blame as far as the law is concerned.

Andrew ‘Chef’ Prendergast
managing partner of
White Dalton Motorcycle Solicitors

This is part 2 of the article “Filter Tips”. If you missed part 1 you can catch up here

The MCM legal column is compiled by managing partner Andrew ‘Chef’ Prendergast and his bike riding barristers and solicitors at White Dalton Motorcycle Solicitors.

Our firm deals with personal injury claims and its sister company, Motor Defence Solicitors, deals with all the motoring offences. All White Dalton lawyers know everything about bike law – and we have full bike licences too. We don’t act for insurance companies or the prosecution.

White Dalton is Britain’s most specialist motorcycle law practice, and if our professionals don’t know the answer to your question there probably isn’t one. Don’t rely on the advice from your insurance appointed solicitor, get proper independent advice.

For road traffic offences call the Motor Defence solicitors on 0800 280 0912 For non-offence cases call White Dalton motorcycle solicitors on 0800 783 6191