The car was facing towards my direction of travel, in a 60mph limit, outside a house. There was no street lighting. The car was a very grubby, dark coloured Ford Fiesta used by a visiting care worker who was dealing with an elderly patient, at about six in the evening last December.
I have solicitors but their advice is I should take an equal split of blame, based on this analysis. I should have been riding slowly enough to stop for whatever was in my headlights. The car was there to be seen. The car was partially on the grass verge and there was plenty of room for me to pass.
Should I follow this advice? There is a lot of money riding on this. This injury means I will have to retrain and get a new job. My wife took photos of the collision scene. What do you think?
Without doubt, blame will be found against whoever parked the car. Your wife’s photos are really helpful. They clearly show a very grubby car (not unusual but relevant to any blame on your part because the number plate and front lights have a coating of dirt and their reflectiveness is clearly compromised) on an unlit rural road. Criminal law is wholly on your side.
It is illegal to park in an unlit area where there is a speed limit of more than 30 mph unless displaying parking lights. You must not park opposing the traffic flow except in a proper parking bay – because the rear of a car has reflectors, whatever the speed limit.
If your case goes to court, the defendant insurers will have to prove that you did something wrong enough to warrant the judge reducing your claim. They are alleging you are partially to blame and they “carry the burden of proof” or, in English, they must show that your riding your motorcycle in the way that you did was both legally culpable and causative in part of your injuries. So the judge will have to find that you should have anticipated an illegally parked, unlit vehicle in a rural 60mph zone, and it was a hazard you should have guarded against.
Well, it is arguable but I think pretty weak. The law does not expect you to guard against all possible stupidity of other drivers. There is a possibility the judge might find you should have ridden within your headlight throw and while there are no reported cases about this, I have done a couple of trials on this very point. In one, the judge reduced the claim by 20% and my lad also said he had carried out a life saver before he hit an unlit vehicle but struggled to explain why he took a look over his shoulder. In another, the judge dismissed all contributory negligence.
I accept anecdote is not evidence but this does demonstrate real judges are not especially attracted to the argument that “I parked my dirty, dark car, facing the wrong way, unlit, on an unlit road, in the dark, without parking or hazard lights on, but this accident is as much the motorcyclist’s fault as it is mine” – it is not an attractive line of defence.
The driver of the car took a decision to park illegally and negligently. You were just riding your bike. Had the offer been 80/20 in your favour, then I would be rather more circumspect but I would press on, reject the offer and I would not be tempted to make an offer if I were you which discounts your claim. I think the most likely outcome for you at trial is a flat-out win.
RiDE Magazine March 2023