I was riding my bike in a built-up area when I came to a foreign-registered lorry which was sat in the outside of two lanes at a crossroads – witnesses said it was indicating left but I did not see this. I went up its inside to carry on my journey and the truck started turning left across me.
I panicked and stepped off the bike, which skittled along the kerb and, as the truck completed the turn, battered into the side of the truck. I did get fairly badly hurt in this accident.
I have solicitors instructed and they seem pretty competent. They are telling me that Brexit makes no difference to the claim, even though the driver and truck are from the EU and they are suggesting I take a 50% hit for failing to see the indicator and overtaking on the inside.
As this is a claim which is worth a good sum of money, I’d like a second opinion. Should I be taking a 50% hit and does Brexit make no difference?
I have checked out your solicitor and they know what they are about. However, and with respect to your solicitor, 50/50 in my view is the likely worst outcome in your case – I would be keener on you offering 70/30 in your favour.
You are going to have to suck up some contributory negligence because a number of witnesses saw an indication which you did not, but the lion’s share of the blame lies with the driver of the truck who was turning left from the outside lane, which is both intrinsically dangerous and unusual.
As a general rule, the more unusual your manoeuvre, the more you have to be on guard for people not anticipating such a manoeuvre. There is a 2019 Court of Appeal case which upheld another senior Judge’s 70/30 spilt on similar facts but remember, cases are fact-sensitive and they are not identical – but 70/30 seems persuasive to me.
Add into the mix the well-established but not always-explored law which relates to the duties of large and invulnerable vehicles, which I summarise as; “If your vehicle is big and heavy and can really hurt people, you need to drive it very carefully” and this line of legal reasoning goes back to at least 1973 and has been upheld by the Court of Appeal on a fair few occasions.
The legal term is “destructive disparity” – you cannot hurt a truck with a motorcycle but a truck can really hurt you – and I think 50/50 is the worst realistic outcome so I would not be tempted to offer it.
On the Brexit point, I agree as a matter of fact with your solicitor, who has clearly decided not to give you a complex answer – which I understand – because the foreign driver and his truck are ‘domiciled’ (that is the truck is registered and the driver, as far as we know, lives in the same country as the truck is registered) in a Jurisdiction which has a process for enforcing an English Judgment. What that process might be is for your solicitors to work out.
Since Great Britain left the EU and the transition period ended, the trans-EU law which meant all English Judgments (the same applies to Scots and Welsh Judgments – NI may well be different under the NI Protocol) could be enforced with relative ease within the EU, has Just gone. As it was supervised by a convention overseen by the European Court of Justice, which GB has said it will not be bound by, this convention is now replaced with various bilateral judgment-enforcement treaties, many of which are well over 50 years old and not used since the early 1990s.
There may well be some EU countries with no bilateral arrangements, though there is one in your case. There will be much dust blown off some very old treaties as judgments against EU drivers are enforced or attempted to be enforced. There will be a lot of high court and foreign litigation over this point as EU insurers try to avoid paying out and I suspect UK insurers try to do the same for EU nationals injured in the EU by British drivers.
A top tip for the moment is avoid getting knocked off your bike by a foreign-registered vehicle.
RiDE Magazine May 2021