There was a Ford Mondeo gaining on them, and he went to overtake as I was approaching. Stupidly. I thought he might wait but he swung out and even though the carriageway is wide, he swung out so his left hand wheels were either on or just over the white line.
I nearly crapped myself, got hard on the brakes on my old non-ABS CBR 600 and stacked it. He just about managed to stop before he ran my bike over, with me just behind.
The police were called, the driver said, correctly enough that he had not hit me. He told the police that he had put me in no danger and I had just panicked, Sneakily the bastard reversed off my side of the road and parked up, before I got a photo. There were no witnesses, and the police weren’t interested as I wasn’t injured.
My insurance company appointed a claims handling outfit, but the response included dash cam footage from the Mondeo, and semi legal language telling me to “sod off” on the basis that I was going “far too fast in the circumstances” and that I had “overreacted to an entirely safe situation and was the author of (my) own misfortune” and “as there was no contact between the vehicles, liability is denied in full”.
The road in question has a 50 mile an hour speed limit, I may well have been doing a bit over 60, but I definitely rolled off the throttle when I saw the pack of cyclists, so I don’t think speed is a factor. Should I “sod off?”.
My claims company is suggesting I offer 25% off for speed and make a final offer of equal blame but they agree that it is the driver’s fault. My bike is only third party insured and worth about £1500, I scuffed my Kevlar jeans but other than cosmetic damage to the fairing and a sore hip for a few days, I am fine so I don’t want to go all “blame and claim”.
Answer
Don’t sod off. Thanks for the video. What it shows is a car driver swinging out into the opposite lane, with you clearly in view. I can see you on the video before Mondeo man started pulling into your path. Your headlight is on. You would have been bigger in real life. The Mondeo driver failed to see you, possibly concentrating too hard on the cyclists.
The video does show the Mondeo would have been almost entirely in your carriageway. Looking at the video, it does not look as though you’re going at any unusual speed. It might be possible to calculate your speed on the video but it is notoriously difficult to gauge the speed of one moving object from footage taken from another moving object.
What I saw in the video is a narrowing gap with the Mondeo driver heading straight towards you, with you stacking as he approached you. It is a pity the dash cam from the Mondeo doesn’t have a speed readout because he does not appear to slow down until you drop your bike, then he appears to brake hard from which the realistic inference is that he did not see you until you stacked.
Those are the facts and here is the law. A driver who changes his position on the road must do so safely, without inconveniencing or endangering another road user, even if the other road user is doing something a little bit naughty, such as speeding, so long as the naughtiness is not entirely unpredictable, I cannot see any improper speed from you.
The second limb is that where a car driver creates a danger from his own negligence he cannot look to his victim to make every perfect decision to avoid the danger that the driver has created.
Put bluntly, the law is quick to say “you made the mess, don’t ask anyone else to extract you from it”, the technical term is “agony of the moment” and so long as you can show that your hard braking falls within the band of reasonable reactions to being faced with about a tonne and a half of steel coming at you at about 40 miles an hour, then you have done nothing wrong.
The dash cam evidence, rather than shifting any blame your way, appears to me to completely exonerate you. Insofar as the 25% discount for speed is concerned, there is no evidence of speed.
Secondly in order to get home on contributory negligence for speed not only will the other driver’s solicitor in court have to persuade the judge that you were speeding, and it doesn’t look like you were, the second limb of this test is that the speed played any part in you dumping your bike.
The fact that the two vehicles did not come into collision is neither here nor there. Your reaction was to the danger negligently created by the Mondeo, it falls well within the range of a reasonable response.
Do not give an inch. Take this on to court if necessary. I know you don’t want to bang a claim but you really do not want to be stuck with a partial fault accident. Be alert to your insurer accepting a reduction as you then have a partial fault accident on your claims record and you may well find your insurance going up substantially. Make sure they are clear you are not willing to accept any blame and if necessary, take this to small claims court. This incident will show up as “unresolved” on your insurance for the next five years so you do need to sort it.
I think the easiest thing might be to tell the Mondeo driver’s insurers that all you want is new jeans at about £80 and a replacement fairing-for a few hundred quid they are likely to accept blame and bump up Mondeo man’s premium.
Sometimes getting to a solution is a whole lot better than litigating. Once they’ve paid the claim win be resolved, so while the bump will still be there and it will increase your premium it will be a lot less bothersome than an unresolved claim.
Andrew Dalton
Fast Bikes Mag February 2021
