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| Mister James |
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Mister James
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 Posted: 19:16 - 05 Jan 2007  Post subject: Legal issues and advice |
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I'd appreciate it if anyone that has had any experience of bike RTA insurance claims could cast a beady eye over the following and lend me their thoughts.
I spoke to the 3rd party's insurance company today after getting an out-of-office from my solicitors email, and they informed me that they had written to my brief informing him that they accepted primary liability (following the court case where she pleaded guilty to '...without due care and attention') but were investigating any contributory negligence on my part now that the police report had arrived. While it looks like things are finally starting to move a little closer to a conclusion, I am a little concerned by the insurer's sudden interest in defraying their costs by finding me partially to blame.
The following is an extract from my rough account of the accident, sent to my solicitor last year. I'd be obliged to anyone who could comment on any aspects of it that could throw up questions ref. my liability. Obviously I have written to my brief, but these things do take time, and I'd appreciate input from the knowledgeable types that hang around here.
| Quote: | With regards to the accident, I had just pulled away from a set of traffic lights at the Hatch Lane junction, heading eastbound on the A4 (Bath Road). I was the first vehicle to have pulled away from the lights after they had turned green, so I had a fairly clear road ahead of me. I pulled into the fast lane and accelerated up to the speed limit (50mph). A few seconds further down the road, I saw a dark green saloon pulling out onto the road from the left hand side, at right angles to the direction of myself and other traffic. I assumed it to be coming from the Aurora hotel, which I knew to be in that general direction. I started to brake, and attempted to make eye-contact with the female driver to ensure she was aware of my presence and did not continue to pull out and block the fast lane.
At no point between when she became visible, and when my bike hit her car, did she look towards me and the oncoming traffic. She appeared to be looking down the road in the opposite direction, presumably for a gap in the traffic on the other side of the road.
She was stationary (or near stationary) when my bike hit her. She was blocking the entire fast lane, and overhanging the central reservation area and the slow lane, so there was no way to go around her in the space and time available.
I believe the bike hit her car in the area between the driver’s door and the bonnet, travelling at about 30 mph. I was thrown clear over the bonnet and landed on my left hand side further down the road. I did not black out and it was clear that I had suffered fairly major injuries, as I found movement very restricted and extremely painful.
The police attended within a few minutes, although the ambulance seemed to take much longer. I spent an initial 2 weeks at Hillingdon Hospital, who were unable to operate due to the complexity of the fractures. I was eventually moved on the 29th of October to St George’s hospital in Tooting, who are the specialists in pelvic injuries. I finally received my operation on the 1st of November, and was released to come home on the 10th.
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The account doesn't mention the gear I was wearing, which I guess could form a part of any argument against me. I was wearing a helmet, gloves and Magnum boots, but aside from that, no specific bike gear - simply a thick padded uniform jacket and a fleece. My injuries were solely impact damage to the pelvis, and nurses and consultants have all stated when I asked them that they would have expected to see this level of damage regardless of whether I was wearing leathers or not. I assume others here agree?
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| Al |
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Al
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| Posted: 19:23 - 05 Jan 2007 Post subject: |
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Would have probably been better not to refer to the lanes as 'fast lane' and 'slow lane' but I don't see how they could point any blame at you from that account 
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strag
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Mister James
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| mchaggis |
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mchaggis
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Posted: 19:30 - 05 Jan 2007  Post subject: |
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By saying 'I started to brake' and that she was effectively stationary when you hit her, it is unclear whether she gave you enough of a chance to stop or not. It reads a little as though you started slowing down but just didn't slow down enough.
I personally don't think it makes clear enough that you simply weren't able to stop in time as she pulled out into your lane and stopped in front of you when you were too close to do anything about it.
I've no experience in these things but that's the way it reads to me.
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| Kickstart |
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Kickstart
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Posted: 19:36 - 05 Jan 2007  Post subject: |
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Hi
From that (apart from use of the phrase fast lane) I am not sure there is anything they can get you on. I do not know the actual distances involved, but they may be trying to persue the idea that you were doing more than 50.
To be honest I suspect what they are doing is based on something in the police report rather than something you have said.
Not sure that they can make any case against you for not using additional non compulsory protective equipment. If so they could wiggle out of just about any insurance claim ever made ("I am afraid Mr Smith that we will not be paying out for your claim when as a pedestrian you were run over by our insured as you had failed to wear a full reflective, padded suit and a helmet with a flashing yellow light").
All the best
Keith
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| Mister James |
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Mister James
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| Posted: 19:42 - 05 Jan 2007 Post subject: |
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| mchaggis wrote: | By saying 'I started to brake' and that she was effectively stationary when you hit her, it is unclear whether she gave you enough of a chance to stop or not. It reads a little as though you started slowing down but just didn't slow down enough.
I personally don't think it makes clear enough that you simply weren't able to stop in time as she pulled out into your lane and stopped in front of you when you were too close to do anything about it.
I've no experience in these things but that's the way it reads to me. |
Hmmm. This seems to be a developing theme, although I wonder how much of it is due to the way I presented my account in the initial letter.
This is the text of my actual police statement, I posted the letter above purely to avoid typing all this out!
| Quote: | I was proceeding eastward down the A4 (Bath Road) at approx. 50mph. I was in the right-hand lane, and the road ahead was clear. As I approached the Auroa hotel, I became aware of a dark green car that appeared to be an Alfa Romeo waiting in the carpark of the hotel.
As I drew level with the hotel, the car moved forwards at right angles to the flow of traffic on the main road. I began to brake, and watched the car pull across the left-hand lane. It appeared to slow as if to come to a halt, but then pulled across my lane. It came to a halt blocking my lane, and overhanging both the central reservation and the left-hand lane.
I was unable to steer around the car due to its proximity, and unable to slow to a halt in time. I estimate the speed of impact at around 30mph. My bike impacted the car in the area of the driver's door, throwing me over the bonnet. I landed on my left hip, breaking my pelvis in 4 places.
I attempted to make eye-contact with the driver from the moment she became visible to my line of sight. At no point during that time did she look in the direction myself or other on-coming traffic. She was looking the opposite direction, presumably for a gap in traffic on the other side of the road. Just as my bike was about to impact her car, which appeared to be stationary or traveling extremely slowly, she appeared to be beginning to turn her head in order to look in the direction of oncoming traffic.
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From that, I concurr with others that the most likely form of attack on my liability will be a failure to stop in time, however I believe that I reacted to the threat in a timely manner, and did all that I could to brake without washing out the front and actually hitting the car myself.
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| Mister James |
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Mister James
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| Posted: 19:49 - 05 Jan 2007 Post subject: |
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| Kickstart wrote: | Hi
From that (apart from use of the phrase fast lane)
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Used in a letter to my solicitor marked "Without Prejudice", so they won't be able to prosecute me for appalling use of incorrect terminology!
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I do not know the actual distances involved, but they may be trying to persue the idea that you were doing more than 50.
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In my statement to the police at the scene, I stated that I was doing an indicated 51mph at the time, which I know to be under 50mph 'on the road'. They said they saw nothing to dispute that speed - which, hand on heart, is genuinely what I was doing. As such, I can't see any way they could find a 'false positive' at the scene that would lead to them getting the wrong end of the stick?
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To be honest I suspect what they are doing is based on something in the police report rather than something you have said.
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I believe that is the most likely event to happen - although the woman dealing with the case stated that although she had just received the report, she had not yet read it - so they do not as yet have anything solid they are pursuing.
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Not sure that they can make any case against you for not using additional non compulsory protective equipment.
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Cool. I guess that the actual equivalent to the seatbelt 'rule' I mentioned is more likely to be the use of an approved helmet?
EDIT: Judging from the above replies - the answer is yes!
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Paivi
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| Posted: 19:55 - 05 Jan 2007 Post subject: |
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I think the only thing they can try to do is to say you were driving too fast if you still hit her at 30mph. What's the distance between the point of impact and the point where you first saw her? Hopefully so short you could argue that you didn't have enough time to come to a controlled stop (with traffic behind, too). Also, presumably you were looking at her to decide whether to go straight on or try to go through behind her?
Your clothing should make no difference, as the law only requires you to wear a helmet which you did. Apparently, leathers offer little protection against impact injuries, more against sliding down the road, but as you probably broke your pelvis on impact, your clothing is irrelevant.
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| Posted: 21:05 - 05 Jan 2007 Post subject: |
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Stinkwheel once said that if faced with a choice of going into something hard you can sort of lock the front and do a controlled wash out, can they say why didn't you do that or is this trick can they ask you why didn';t you do this?
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| Mister James |
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Mister James
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| Posted: 23:39 - 05 Jan 2007 Post subject: |
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As I stated in the opening piece, you're correct in that they are simply waiting to read the police report and see if they could stiff me for contributory negligence - I was looking for some insight in to how they could conceivably come after me for it, if you have any ideas from your former profession, I'd be interested.
So far, the consensus seems to be that the only real avenue open to them is suggesting that I didn't take appropriate evasive action in a timely manner. I've not yet seen the report, so can't comment on whether there are any hostile witness statements, but I certainly do not remember freezing or braking late.
Ref. speed and conditions, it was a bright, dry afternoon, visibility was good, the A road was clear ahead of me (as I was at the front of the traffic away from the lights) so if one was ever justified in doing the speed limit, it was then!
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| Posted: 14:10 - 06 Jan 2007 Post subject: |
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Hi, I would be highly surprised if the insurance company went for speed, as it's near impossible to prove, unless you crashed at a speed camera site, respectable insurance companies normally work on fact.
Without speaking to the company, it's difficult to really say, but basically, if it were me, I would have been looking at the fact you failed to protect yourself properly in case of an incident, which contributed to the injuries you sustained, but then they have to prove that it would have been considerably less if you had protected yourself properly.
Personally, I don't fully understand why they're pursuing it, unless you were riding in shorts and t-shirt, and claiming for road rash. Speaking to your solicitor would really be my advice, and try to find out exactly what they're getting at. Probably them clutching at straws. Would be interesting to hear back on this one.
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| Posted: 14:39 - 06 Jan 2007 Post subject: |
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I also doubt they will make any issue on the speed. If you were doig an indicated 51 then the time required for her to see and respond to your approach would be ever so slightly less than at the posted limit.
The simple fact is that the woman stopped her car across lanes that were open to traffic, and put others at risk due to her actions. The highway code requires that you do not perform any manouver that causes another vehicle to change either speed or direction, so how can she not be completely to blame. I shuldn't worry it just sounds like insurance company standard proceedures.
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| Aikman666 |
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Aikman666
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| Posted: 14:54 - 06 Jan 2007 Post subject: |
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| Itchy wrote: | Stinkwheel once said that if faced with a choice of going into something hard you can sort of lock the front and do a controlled wash out, can they say why didn't you do that or is this trick can they ask you why didn';t you do this? |
NEVER EVER do this. NEVER, and if someone in court suggests it, they are obviously clutching at straws; if you ever wash out due to extreme braking because of someones actions it can be viewed as your inability to do an emergency stop. This exact thing happened to me a couple of months back, although i wouldent say i "purposely" washed out - i just knew in my head that i didnt want to hit that car, so grabbed a fistful and the front washed. Long story short the insurance told me because i never acctually HIT her there was no case. So now i have the pleasure of trying to work my part time job between school and my other projects i have to try and get enough money to repair what WAS a showroom condition bike.
SO hit the cunt, hit em hard, hit em good, then make sure they pay. And by this i mean dont try to get yourself killed, but even if you kick their car as you slide past, aslong as you leave a dent/mark youve got proof of contact. Or launch your helmet through their side window when you get up 
Sorry for the O/T there, just thought i'd point that out!
Good luck with the case
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| Mister James |
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Mister James
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| Posted: 15:15 - 06 Jan 2007 Post subject: |
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I do appreciate all the comments people have taken the time to make. Just to clarify a couple of points:
 My solicitor is working on the case, I'm just impatient and wanted to hear what people had to say about it NOW NOW NOW!
When I contacted the 3rd party, the woman dealing was very frank, she has only just received the police report (the criminal case was finally concluded on the 13th) and she admitted that she had not had a chance to read it. As such, (and as mentioned by others in previous posts) her statement that they admit Primary Liability but are investigating Contributory Negligence is just 'standard procedure' at this stage, rather than them actually having a concrete objection.
The case is still in the hands of Insurance/Solicitors, rather than being disputed in court at this stage.
| Quote: | I also doubt they will make any issue on the speed. If you were doig an indicated 51 then the time required for her to see and respond to your approach would be ever so slightly less than at the posted limit.
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My thoughts exactly - nice to have them confirmed though.
| Quote: |
The simple fact is that the woman stopped her car across lanes that were open to traffic, and put others at risk due to her actions. The highway code requires that you do not perform any manouver that causes another vehicle to change either speed or direction, so how can she not be completely to blame.
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Also my opinion - her original protestation to the Po-Po that she'd been stationary (and thus not at fault) after a breath-takingly stupid and selfish maneuver is so unbelievably cocky that you almost have to respect the cheek!
| Chriss wrote: |
f it were me, I would have been looking at the fact you failed to protect yourself properly in case of an incident, which contributed to the injuries you sustained, but then they have to prove that it would have been considerably less if you had protected yourself properly.
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I think they'd struggle to prove that anything less than M7 Space Marine Power Armour from W40k would have protected me from the injuries I sustained. Ironically, the high trajectory that my mighty frame described in the air - while causing the excessive pelvic fractures due to the high impact force - actually ensured that I didn't sustain any 'gravel rash' injuries, as I just smacked down onto the tarmac with an almighty cracking noise, and stopped dead. My consultant was astonished that the damage was restricted to my pelvis, (and the worlds biggest bruise on my elbow) as the number and severity of fractures was consistent with a level of impact that should have broken ribs/limbs/etc as well. While my reasonably heavy frame (15'10 at the time) probably added to the damage done to the pelvis by my momentum, my bulky skeleton actually protected me from further fractures. In my ward at St Georges, every other motorcyclist with pelvic injuries had at least one broken limb.
In short, the personal injury claim consists solely of injuries that would realistically be expected from anyone wearing any type of current motorcycle protective gear.
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Old Thread Alert!
The last post was made 19 years, 225 days ago. Instead of replying here, would creating a new thread be more useful? |
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