As we came round a bend we saw a tractor towing some improbably large piece of farm machinery, trundling along at 10 to 15mph. We both knew that there was a junction on the right, so both of us held back.
We had been hovering to the tractor’s offside for a good few seconds. As soon as he had passed the junction, my mate indicated, overtook and got by without any problems. I followed less than two seconds later, but as I was alongside it the tractor turned right into a field.
I got caught up in this and was very badly injured. The police took photos. The tractor had indicators but they were caked in thick mud on the lower level and dust at the top level, as were the brake lights.
The defence have made a “Part 36” offer of equal blame. My insurance-appointed solicitors have said that, as this case is likely to go 50/50, I can either accept it or find myself new solicitors. The letter the insurers have sent is rude and unsympathetic: “Your client was largely the author of his own misfortune. He overtook by a junction when our insured was clearly indicating, but to avoid further litigation we are prepared to accept an equal apportionment of blame. We refer you to Pell v Mosley 2003.”
My solicitors have told me I have to accept this, is this really a 50/50 case?
You should sack your “solicitors” and find new representation with a backbone and some courtroom bottle. The 50/50 cases all involve a bike bowling down the outside of a vehicle that is turning into a junction. The case of Pell v Mosely involved a car turning into a field, but it is of no relevance to your case. In that case the car was slowing by a field full of motocross bikes. Her brake lights were visible, and it was found that the driver had not indicated.
Road traffic liability cases turn on their own facts – change one circumstances and all liabilities change. In my view you will win flat out. You overtook not by a junction but by a field gate. As is clear from the police photos it is an obscured field gate, invisible from the road and buried deep in a hedgerow. The tractor was not noticeably slowing and had just been overtaken by your friend on the KTM. Personally I would not give a single percentage point on blame on this one and take your chances, which are good. In front of a judge. Very few are unfair to motorcyclists.
You have some minor risk of going down for some contributory negligence if you get a bad combination of judge and evidence, but you would be really unlucky. I am struggling to see you did anything wrong. You are allowed to overtake and it is not reasonable to expect you to sit at 15-20mph in a 60 limit. The driver of a slow vehicle must expect to be overtaken, and it has been a principle of road traffic liability since the early 1970s that the driver of a large and invulnerable vehicle owes a higher duty of care than an ordinary road user. Even If the judge finds the tractor was indicating, his duty is to see that the signal is seen and acted upon by other road users, and the dirt-encrusted indicators make this a difficult point for the defence to run.
Your current solicitors are pressing you to take an extraordinarily bad outcome. If the trial judge, on these facts, equally split the blame I would be off to the Court of Appeal. I know your current law firm and they are famous for taking the very first offer. The insurers, who are a pretty tough bunch, are treating your solicitors for the weak-kneed paralegals they are. I suspect you will find that If you get a proper solicitor, with the willingness to take a case to trial, you will start receiving much more sensible proposals.
Your solicitors are worried that If they do not beat this 50/50 offer, they might not get paid for any work beyond this point – which truly chills their incompetent, timorous hearts.
RiDE Magazine November 2016