As I worked my way to the front I could see a car being driven in “classic old lady” mode. The driver was hesitant, her speed varied between 25 mph and 45 mph in a 60 zone. Her brake lights were coming on for no reason, so I decided to go for an overtake in a safe area.

Just as I was overtaking, and I do have loud pipes. The car violently braked slewed right, just clipping me. The rear corner of the “old lady mobile” had a slightly damaged rear offside balance, a scuff mark left by my tyre. Neither me nor my bike came off that well. I have now got a complex fracture to my wrist, and my now fairly elderly but much loved Fireblade is likely to be written off.

My insurers appointed so called solicitors, and yes, I have checked, and my “litigation executive” when asked has no formal qualifications but has said that as I went into the back of a vehicle I cannot bring a claim. Is this right?

Answer

No. You can bring a claim, but you do have difficulties. The urban myth is that if you go into the rear of the vehicle, you are to blame. It is usually a pretty strong indicator of blame, but it is not final.

The Court has to consider whether the person braking did so for good reason. The driver of the car, as you correctly surmised was indeed an elderly lady, who initially told the police that she “braked for the roundabout” but when the police officer pointed out to her interview that the roundabout was over half a mile away, she then said “I braked because I was awful scared by the noise of the motorcycle”.

The two witnesses who gave brief statements to the police at the time both said the car moved quite sharply to the right, as you were winding up for the overtake, one witness saying that the car crossed the white line, dividing the road, the other witness is silent on the point.

The duty of a driver being overtaken is to maintain “safe and steady course” on the particular facts of your case I suspect that you will win, but not in full. I think it is likely a Judge will find your overtake was too close to the side, but not to the rear of the car. Obviously, you cannot maintain a safe distance behind a car whilst you are going for an overtake. At some point you are going to go past it.

The race pipes do not usually endear you to Judges, but neither is it an excuse to swing out right. In my opinion the Judge will find the driver braked for no good reason, and swerved for no good reason. However, I think you are likely to have to take some of the blame for not following the wise words of the Highway Code “not to get too close to the vehicle you intend to overtake”. If you had done that, the swerve would not have got you, you would have made your overtake, and you would not be asking me the question.

In my opinion the likely range of blame is at worst equal blame, but my genuine expectation is that you will have to shoulder significantly less than half of the blame, if the insurers for the old lady are not prepared to offer you anything more than two thirds of the value of your claim, I would think about that very carefully indeed.

Andrew Dalton

Fast Bikes March 2020