What’s the emergency?

Logic suggests you’re at fault when you run into the back of someone else, but this isn’t always the case when you’re dealing with clowns…

I was riding my bike about 30 feet or so behind a very new learner driver in a 30mph zone. She was hunched over the wheel, wobbling a bit, and in her dad’s car with him next to her. I thought ‘I’ll sit behind her’ as I really didn’t want to overtake as she was not at all steady on the road, and there was a risk I’d get side swiped.

Then the car came to a screeching halt, skid marks, the full works and she started moving to the centre of the carriageway. I had an oncoming car ahead of me, and a locked-up, skidding car in front of me. I nearly made it, but still clipped the back of the learner driver. My fairing is now looking quite sorry for itself. I am third party only and even a pattern fairing and bits will cost me £400 before spraying.

But now my insurers have been in touch and the learner driver and her dad have got, yup, you’ve guessed it, whiplash claims. I was on a bike and I had no injuries. How they got ‘severe whiplash symptoms and psychological trauma’ is a bit of a mystery. My insurers want to pay out as I went into the back of their car.

The dad came out of the car going properly garrity and it seems he thought it was a good idea for his daughter to practice an emergency stop. He called the police and demanded my immediate arrest for assault and dangerous driving. The police, in fairness, said they thought he was to blame, and if he didn’t shut up, they’d arrest him for a public order offence and nick him and his now wailing daughter for driving without due care. They pointed out the fact that it was pretty stupid to hammer on the brakes with a bike behind you to “practice” an emergency stop.

Answer

You’d be surprised how often this question comes up. There is an urban myth that if you go into the back of someone you must be to blame and the whiplash scammers play on this. This is not a scam. Scammers don’t call the police or go ballistic. Dad is just an idiot and has passed on his intelligence to his daughter.

However, you as a rider have to leave sufficient space to pull up so you can deal with a foreseeable and reasonable risk. Your riding was not unreasonable. You were put into an emergency entirely of the learner’s own making and you do not have to accommodate every stupidity that any driver in front of you might get up to.

As the law more elegantly puts it; ‘a driver does not have to anticipate every possible folly’. I have taken similar cases to trial and won. Your insurers must not pay out to these clowns. Personally, I’d take the driver, her dad and his insurers to the small claims court for a replacement original Honda fairing and paint job, £25 per week for the time your bike is in the repair shop or the hire charges for a bike/other travel costs.

Don’t listen to the claims cowboys who will try to get you to pretend you were injured. You weren’t. If you commence court proceedings you will win. You need to refer the judge to the following case – Aliv D’Brass [2011] EWCA Civ1594 is a good one and sets out all of the law and previous cases.

Andrew Dalton

Fast Bikes Mag April 2014

Posted by Andrew Dalton. Posted on: April 24, 2014 at 12:00 am

Andrew Dalton is a highly experienced trial lawyer who delights in taking on difficult and demanding motorcycle cases. He has a tough and relentless litigation style and is utterly focused on getting the best possible outcomes for his clients.