In most cases it will be the rear ender’s fault but the English law is fact based and pragmatic, and I have won a few cases where my rider has gone into the back of a car.
These cases have always gone to trial with me feeling not especially confident but there is one really useful case, called Ali V D’Brass, where the Court of Appeal corrected the first judge’s application of the presumption that if you go into the back of a vehicle you are instantly to blame as you were not maintaining a safe distance.
In Ali the Defendant had braked sharply for no apparent reason and was held to be 60% to blame, and the driver following, objectively, too closely was 40% to blame.
The most common scenario I come across is elderly drivers or drivers with poor and uncorrected vision, often driving at night, suddenly anchoring up. Because I have second-hand experience of thousands of motorcycle collisions I am alert to this.
I won one trial where my rider was committing to an overtake of an elderly driver who just banged her brakes on, ‘because that is what you do’ as she freely admitted under my cross examination.
When my rider was found to be wholly blameless for striking her car she proceeded to scold the judge, a woman of middle years, as a ‘silly girl’ and stomped out of court when the judge told her to pipe down. Not all cross examinations go quite that well!
Where things get a bit stickier is where a driver brakes hard in an over reaction to a perceived hazard and in those cases the fundamental law is applied thus: ‘a following driver needs to be able to pull up safely for foreseeable hazards’ and an over exaggerated startle response is foreseeable – just as a driver reacting powerfully to a hazard you have not seen.
If the reaction is so unusual so as to be unforeseeable the competent rider does not need ‘to anticipate every folly’ another road user could get up to but the following rider would be doing well to get a significant proportion of their damages.
The most intractable are where there have been handbag between an aggrieved driver and aggrieved motorcyclist and the driver outbrakes the motorcyclist who is chasing after him to remonstrate or give words of driving advice.
The Court is slow to find a deliberate attempt to use a car as a weapon and in the few road rage cases I have taken to trial the best I have done, where there is evidence of the driver and rider remonstrating, is the
court splits blame equally and tends to be very tight on damages, as the Court is not massively moved by sympathy toward two adults raging at each other on the highway on/in vehicles that can really hurt other people.
It would be, in my opinion, entirely open to the court to dismiss both actions as arising out of the criminal act of dangerous driving, but so far, I have not had that result, but I have had it argued against me and I could see the attraction of that argument.
Bike Magazine December 2022