Don’t let the Red Mist get you

Don’t let the Red Mist get you

One of the fairly common accident scenarios I get is when riders overtake drivers who do something peculiar when the rider is alongside.

Before I became a lawyer I shared the biker folk wisdom that if a driver was doing something odd it was best to get past, but experience has taught me this is a bad plan. A better plan is to keep that driver at a safe distance in front of you.

The erratic driving is likely to be caused by incompetence or tinkering about with the radio/sat nav/phone or any number of other gadgets. You coming up alongside and distracting them from the very important business of resetting their iPhone is likely to result in a potentially disastrous overcorrection by the driver. With you alongside.

The law is clear enough. A driver being overtaken owes a duty of care to the vehicle overtaking. This means they need to maintain a steady and predictable course. The key point is the driver need do nothing to make your overtake safer. So a driver does not need to slow if you are heading into a bollard because you have mistimed your overtake.

The law is set out in a little known case called Smith v Cribben from 1999 and the logic of the Court of Appeal was clear. A driver being overtaken is the passive party who does not know what the overtaker is going to do, so all he needs to do is maintain a steady course. There are the odd situations where cars deliberately speed up while a rider is trying to overtake, which is not likely to be a problem for a powerful bike.

However, make the car a BMW M5 and the bike an A1 compliant machine and things can get ugly. There have been such cases where the motorcyclist has been badly injured, and one particular case where the red mist descended on the bike rider and the driver of a Subaru Impreza WRX.

These two protagonists played cat and mouse on the road until, inevitably, the biker was seriously injured. The Court was not overwhelmed with sympathy for these two grown men and found the Subaru driver more culpable than the motorcyclist, but not by much. The Court recognised the car driver would be safer in his steel box but was utterly unimpressed by the rider deciding to make good his overtake attempt.

The rational thing for the rider to have done was let the Scooby crash on his own. The rule is simple. Had the police seen these two men they would both have been up for dangerous driving or racing on the highway – two of the most serious road traffic offences short of killing or seriously injuring a person. So, if you can’t make an overtake because someone is not going to let you, just hang back.

If things get road ragey the most dangerous place for you to be is alongside a car/van/truck. Just avoid being in the same place as an angry driver. Whatever the rights and wrongs the biker will always lose that tussle so swallow your pride rather than hospital food.

Andrew Dalton

Bike Magazine April 2016

Posted by Andrew Dalton. Posted on: May 12, 2016 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.