New Episode: Rear Enders

It’s a soap opera in its own right; you end up in the back of the car,so who’s to blame?

I passed a couple of cars in a queue on a dual carriageway. I then came up behind a Mercedes which was the slow vehicle at the head of the queue.

I moved to overtake and just as I had completed my final lifesaver/over shoulder check the Mercedes suddenly and violently stopped. I hammered on the brakes in a pretty spectacular stoppie, but I just clipped the car. It was enough to send me and my third party only insured bike for a skittle down the embankment.

My bike, which is worth about £3k, has about £2,500 pounds worth of damage to it. Luckily, I was pretty unscathed apart from a spectacular looking cut and some fairly purple bruising. I am fit and expect to be fully recovered in a week or two at most.

I don’t want to bring a personal injury claim, but my insurers seem a bit clueless. The basic thing they are saying is that as I went in to the back of a car I must be to blame – but I just went for a routine overtake. The police were reasonably sympathetic and are not looking to prosecute anyone. I understand that the witnesses say that I passed them unremarkably, and I understand at least one says the Mercedes just hammered his brakes on.

The Mercedes driver has said he braked for a pheasant, but I am far from sure he said this at the time. I don’t think I have done much wrong, but I now have a wrecked bike with most of the finance to pay on it and my insurers wanting to payout the pretty modest claim for the Mercedes driver – if there is any claim at all. What should I be doing?

Jamie, Blythe.

Answer

If what the police has indicated to you is correct, then you have a case. The duty of a vehicle being overtaken is to maintain a safe and steady course. That is established law. A driver has to anticipate, with reasonable skill, the range of probable things other drivers might do, but you do not have to anticipate every conceivable folly.

Your life saver was doing exactly what you should be doing because the greater risk is another bike deciding to go for an overtake past the same car rather than a driver banging on the brakes.

However, if the driver genuinely did tell the police or other witnesses at the time that he was braking for a pheasant (as opposed to making it up later) then you do have a problem because the driver is entitled to brake for a hazard. I can quote you all kinds of cases which consider these points, but the two major points in law are the overtaken driver’s duty and whether it was within the reasonable band of responses for him to slam on the brakes.

I suspect most judges would say that slamming on the brakes for a pheasant whilst you were unaware of a bike over taking you (the driver has no duty to constantly check his mirrors if he is being overtaken – unless he is changing his road position) falls within the band of reasonable response. However, the judge is going to have to find there was a reason for the brakes going on. You do not have to anticipate the anchors going on without a reason. If the driver did not immediately mention the brakes when first given the opportunity then I would bring your claim to the small claims court.

You were unimpressed by the firm selected by your insurers. Well, your insurers own that ‘law firm’ and my experience of them is they areas poor as you anticipated based on your first impression. Personally, you are better off on your own in the small claims system – and well done for manning up with your injuries.

In the small claims system the Mercedes driver’s insurers will have to defend a claim, worth less than £5,000 and you will only have to risk the Court issue fee. As your bike is your main form of transport remember to bring a claim for loss of use. For a main form of transport £75 per week seems to be about what judges will order – but you won’t get loss of use at that rate if you put all your public transport costs In as well.

The small claims court is pretty straightforward. You might want to lookup a case called All v D’Brass which is available for free on www.bailii.org which sets out a lot of the law which will help.

Andrew Dalton

Fast Bikes Magazine – July 2014

Posted by Andrew Dalton. Posted on: July 10, 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.