Need advice after being hit by car!

Help & Advice
1

Hi everyone,

My name is Nicola and until last week I was the proud owner and rider of a beautiful white ER-6N - she was my pride and joy!

Last week I was ploughed into from my left hand side on a small street by a guy coming out of the pub car park who didn’t bother looking in the direction he was driving as he ‘was turning right and had to keep an eye on oncoming traffic’.

I was riding slowly alongside standing traffic (max 20mph), on the right of the cars but still in my lane so I wasn’t undertaking. I saw him standing in between the cars at a 90 degree angle so slowed right down and revved my engine to let him know I was there.

As he was not moving I started to slowly ride past him but he put his foot on the accelerator and hit my crash bung side on, resulting in my sliding forwards and dropping the bike which slid down the road on its side with me next to it.

He got a small dent on his bumper. My bike was hit side on, saving my leg but denting my frame making it a write off. Needless to say I’m heartbroken and my RPHA-10 needs replacing.

I love my bike dearly and have been riding it safely for the last 1.5 years in Central London as I was living in Camden until last week. I am a very careful driver and would never do anything to harm myself or my bike, which until last week was pristine and my pride and joy.

My insurer (CIA) are now “advising me to adjust my expectations” as they believe the other insurer will argue to split the blame 50-50 as I “was filtering and therefore knowingly engaging in a hazardous activity” (even at less than 10mph?). I have three witnesses but am not allowed to find out what they said.

I have never had an accident before (not even a speeding ticket!) so I need advice from more experienced people. I need to fill in a detailed accident report so it would be good to know what I need to write.

Thanks!!

2

In filtering cases, often insurers will try argue the point that the rider contributed to the cause of the crash because they were simply filtering. However there has been a lot of case law in recent years in respect of this, and each case has to be judged on its merits and the evidence available.

The most recent case is the one below (which might help you argue your case, but insurers will often go for the easy option and apportion split liability rather than fight your corner.

MARCEL BEASLEY (BY HIS LITIGATION FRIEND CADELL BEASLEY) v PAUL ALEXANDER (2012)

A car driver who pulled out to execute a turn in the path of a motorcyclist was liable for injuries sustained by the latter because he had failed to ensure that the way was clear before making his manoeuvre. Even though the motorcyclist was travelling too fast, he would not have had time to avoid a serious accident if he had been travelling at a lesser speed and was therefore not contributorily negligent.

The court was required to apportion liability following a road traffic accident between the claimant motorcyclist (B) and the defendant car driver (D).

D had been stuck in traffic on a straight section of a single-lane A road subject to a 60 mph speed limit. B had been riding his motorcycle on the same road, in the same direction, behind D. D decided to execute a u-turn and go back in the opposite direction to escape the queue. In his statement made on the day of the accident, D stated that he had indicated for about 30 seconds before pulling out into the opposite lane. However, in a later witness statement he said that he had been indicating for 15 to 20 seconds before starting to turn. He had then collided with B, who was filtering past the queue of traffic and was thrown off his motorbike. B sustained severe injuries, including to his brain. Various witnesses gave evidence, including a driver who had been travelling in the opposite direction and who had just passed D when the collision occurred. The issues were whether D was liable for B’s injuries; and if so, whether B was contributorily negligent.

HELD: On the evidence, D had turned immediately after the oncoming vehicle had passed: he might have halted briefly, but it was more likely that he had assumed his passage was then clear and that his wheels had kept turning. Once the oncoming car had passed, D had turned in a way which struck witnesses as sudden, and it was likely that his car, being powerful and light, moved significantly faster than the average vehicle. D’s evidence as to when he turned on his indicator was contradictory. It had to be concluded that he had started indicating at the last moment once the oncoming car had passed and had not looked in his mirror properly, otherwise he would have seen B approaching him from behind. The probability was that, once the oncoming car had passed, D assumed that his passage was clear. There was no doubt that D had been negligent (see para.13 of judgment). (2) D had pulled out in front of B when he was only a short distance away, and B had had no chance of avoiding him. The expert evidence showed that B was most likely travelling at 45 mph before the collision. Although B might have been able to apply his brakes, he did not have time to reduce his speed by much or to avoid a serious accident. That conclusion was supported by independent eyewitness evidence. B was travelling somewhat too fast, as the top safe speed would have been 35 mph in the circumstances. However, even at that speed there would have still been an accident in which B would have sustained serious injury. Accordingly, there was no contributory negligence (paras 14-15, 17-18 of judgment).

3

Hi Nicola welcome to London Bikers.

TC has given some excellent information (as usual). He is experienced in these matters.

I’m no lawyer, but in my experience you have to understand the reality of the situation and get ready to fight. The mentality of the insurance companies is that they want to get your case closed as quickly and simply as possible. If that means they split the blame, they don’t really care - when they incur extra costs this year they simply use that as an excuse to increase all premiums next year. They can’t lose - only you can. That means you have to get ready to fight your own corner. Do not accept their laziness and make it clear at every opportunity that you will not accept any liability at all for the accident. Make sure they realise you will be a bigger pain in their arse than the other insurers - and basically they will do whatever gives them less of a pain in their arse.

From what you have said, you were filtering sensibly (at low speed) and your statement is that you saw the car that pulled out on you so you had seen him and decided he must have seen you. The revving of the engine was a precaution.

Filtering does not automatically put you in the wrong. The Highway code (section 88) specifically refers to how it should be done and you can use witnesses and the damage to your bike as evidence that you were doing it correctly (i.e. at low/appropriate speed). By the way, filtering isn’t just when you stay in your lane, it is also ok when you move over a dotted white line between lanes, what you must not do is go over a solid white line.

Section 211 of the Highway code deals with advice of taking care to look for filtering bikes and motorbikes, so that can help you argue the claim.

There is some good information about filtering here http://www.motorcyclenews.com/MCN/community/Forums/Categories/Topic/?topic-id=357452

Fight for your case - the costs of a claim against you are very high as it will increase your premiums for years. Once you have won your case, make sure you claim for your other losses. Best of luck.

4

Just adding to what I’ve replied to your post in Newbies section.

My insurance company (Lexham at the time) also warned me that 50/50 is highly likely due to filtering. They geniunly couldn’t be bothered assessing the circumstances of the accident and after talking to them on the day they made me think that there is no point claiming at all. My damages were much lighter than yours and I thought that 50% of the claim wouldn’t have surpassed the excess. Only when I mentioned personal injury, they’ve advised to talk to a lawer.

Don’t trust your insurers call centre - get legal advice.

5

Hi T.C

Thanks for your reply - I found a similar case online where a driver was deemed fully responsible as he’d suddenly decided to U-Turn.

My case through is different so it would be good to know which elements of this case apply to mine also.

It is true that the driver cannot have been looking in the way his car was travelling as he would have seen me (he was at a 90 degree angle to the rest of the traffic including myself and accelerated forwards hitting my bike side on with the front of his car). I had slowed down and revved my engine to make myself known, I have a bright red helmet and white bike with reflective trimming on my jacket. It was a bright, sunny day.

It is also true that whilst I was travelling very slowly I was riding past the front of his car when he accelerated and hit me side on. I did not hit him and could not have avoided being hit by him.

However, he was standing in traffic and I did see him (which is why I revved my engine), there was no gap as he was occupying it. I was passing standing traffic. Therefore I’m worried the insurance company will either just say it’s my fault as I shouldn’t have been filtering at all (which is unreasonable) or say I saw him therefore should have stopped all together (which, whilst I was travelling slowly, I couldn’t have done safely in time).

I need to know how I can formulate my initial argument as going to court is a long and arduous process. Does it help at all to mention these court decisions to my insurer? My insurer agree I have done nothing wrong but I don’t want to be made liable due to rhetoric.

Thanks for your advice!!

Nicola

6

Nicola

If you are happy to do so, PM me with a phone number or email address I will be happy to give you a call and discuss it with you in person as it easier one to one to discuss than through the forum