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gsxrpeak
Trackday Trickster



Joined: 06 Apr 2005
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PostPosted: 12:39 - 14 Dec 2007    Post subject: Need help with court case! Reply with quote

This post describes a motorcycle accident I had 2 years ago, and all legal proceedings that have followed. I’m in desperate need of help; hopefully there are some experts here kind enough to help

This incident in question happened when I was just 19 years old. I had just got a new job as a motorcycle mechanic, was just starting my new hopeful career and had just taken out a mortgage on a property.

This is a very long post, and describes everything in detail in regards to what’s happened, and the court case. Please be patient, and if you manage to read everything I’ve written, I thank you. It seems to me I’ve reached the end of everything I can possibly do that the justice system permits, and after all of what’s happened to me it seems likely that I will be prosecuted for something I’m not guilty of, receive none of the compensation I deserve by law, and will be heavily in debt.

Effectively I’ve lost all hope I had for my life before the accident.

Before explaining any of the details of my court case, I should firstly explain what has happened to me over the last 2 years, and how I've come to be in the situation I'm in now. I will write with neutrality, stating nothing but the truth, telling you exactly what the magistrates and judges have heard. I have left nothing of significance out. You will know what I know, what the magistrates knew, and what the van driver knew by the time you’ve finished reading this.

The incident in question

About two years ago I was on my way to work in the morning, on my motorcycle (a legally restricted motorcycle to 33bhp). I was about a mile from my house, on a straight dual carriage way (40mph speed limit). I was in the outside lane (right hand lane in UK) about to pass a van in the left lane (usually called the inside lane). As I was just coming up to being inline with the back of a van, the van suddenly changed lanes in front of me with no indication (obviously the driver didn’t check his mirrors), which resulted in me having to brake to avoid being hit by the van, which caused me to lose control and fall of my motorcycle, smashing into a post.

The reason the van pulled from the left lane to the right, effectively moving into me who was occupying the right lane, was because a vehicle in front of the van also in the left lane slowed down – the van driver, obviously not wanting to lose speed changed lanes, without indication or checking of his blind spot, otherwise he would have seen me and not changed lanes. I was wearing a bright green leather jacket, I had my lights on (as I always did for safety reasons, even during day) and my bike was not a small bike in size being bright red in colour and very loud. Not an easy thing to miss if you’re looking and paying attention. The injuries I sustained were horrific. They are as follows:

Injuries I sustained

· Broken left femur, shattered in three places

· Nerve damage (took away the use of my ankle joint)

· Nerve damage all the way down my right arm, taking away use for over 4 months

· Fractured radius in my right leg

· Clean break of my upper right arm

· Three fractures in my right forearm

· Clean break in my left forearm

· Hematoma on my skull

· Ruptured corpora cavernosa (causing bleeding from urethra and loss of any sexual activity for a year and a half, which was no doubt a contributing factor to the loss of my long term girlfriend)

https://a616.ac-images.myspacecdn.com/images01/20/l_17c593d43839dad8f36fc75f0b2e1d9f.jpg
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https://img145.imageshack.us/img145/9892/picture045dj3.jpg
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Treatments

Immediately after the accident I was critical, and almost died. The police had actually radioed me in as a fatality not expecting me to make it to the hospital. Luckily, I did. When I arrived at A&E at the hospital the first thing I remember is being inside an MRI machine with tubes coming out of all parts of me. I was constantly and continuously administered drugs, just below the lethal amount for my size and weight to curb the pain and keep me alive. I would like you to remember that the prosecution later on in court actually used the fact that I’d been administered drugs at the time of the accident against me, in an attempt to rubbish the validity of my statement. I quote “At the time of the accident we did a blood test and found opiates present, this MAY (or may not as they were implying) been administered by the ambulance crew”.

After my condition was stabilised I was moved from to the ICU where I spent a week under 24 hour surveillance. The same night I endured a 9 hour operation to plate my upper right arm, and put a femeral nail on the inside of my left femur. After that, I spent an additional 2 weeks in the hospital ward. After the first week of this, I was stable enough to endure another operation – where I had my left forearm plated and my right arm cast, along side various blood transfusions etc.

The depression of being in a National Health Service hospital coupled with my injuries was so much that I had to discharge myself and go stay with my mother (who I’m especially not close to, or rather wasn’t at the time), receiving regular visits from the district nurse, to change bandages and so on.

Whilst staying with my mother, a police officer came round to take my statement in regards to the accident. What I told him was an elaborated version of what I described above, as best I could remember.

After all the post accident procedures had taken place, I began the long road to recovery (if you can call it a recovery). This has been the hardest and most challenging time of my life, bringing me close to suicide, due to the pain and loneliness. I lost everything – my job, my girlfriend, all dignity and self respect. Everything I could’ve lost, I lost. I’d also been heavily into fitness training and strength training at my local gym. I lost all the muscle and more I’d been working for years for. More painful than loosing the material things in my life were the immaterial things, like relationships and use of my body.

I didn’t smile for 2 years. As a 19 year old male just out of college all my dreams and aspirations, hope for life, were now gone. For the next two years after the accident I had 6 operations due to infection (one of which was on Christmas day), three of those operations were complete femeral nail changes (which means my hip was completely dislocated, and the nail running down the entire length of my femur through the bone marrow was removed with a slide hammer and replaced). Two more operations were maintenance operations on the femeral nail in my left femur, after it was decided nothing was working and the bone (which was shattered completely in three places) was still in 3 places.

The next step was the ilizarov frame, in a final attempt to save my leg. This is a horrific looking contraption that surrounds the entire upper leg, and part of the lower leg, consisting of three hoops connected with threaded rod. The loops had wires attached, that went directly through my leg (muscle and bone) to the other side. I had to tighten the nuts on the threaded rod every day myself in order to compress the leg, causing great pain with compression on the bone (in order to aid healing). This was changed twice in all.

The start of Legal Proceedings

Before the ilizarov frame was put on, I was back at work in a wheelchair doing all I could to pay my mortgage, which was answer phones all day. Hardly engaging work for an aspiring mechanic! It was one of these lonely mind numbing days answering phones that I received a court summons, informing me that I was to be charged with:

· Driving without due care and attention

· Driving with no insurance

· Driving with no licence

I did however have insurance and a licence, but was in the ICU when needed to produce my documents to prove this. In the first court hearing, these two things were dismissed. It was to be the ‘Driving without due care and attention’ charge that would go on to trial, and prove to be what has stood, and stands between me and justice along with any chance of compensation.

It went to trial, in a local magistrate’s court. This is a court without judge or jury, the decision makers are three professionals within society (doctors, pilots - anyone of social accomplishment) designated magistrates – I would like I emphasise these magistrates have no formal legal training or qualification. Their job is to give opinion, and be judgemental – this is effectively what they do. As professionals in society, their judgements are trusted for small matters like motoring offences. The reason such a serious accident ended up firstly in the magistrates court was due to lack of evidence and lack of witnesses; because of this they gave a very small, minor charge (driving without due care and attention) so that it would go to court and be investigated further.

For me to have any chance of justice or compensation for the horrific events I endured, I would firstly have to prove my innocence in regards to the charge ‘driving without due care and attention’. This was the first step for me towards justice. The driver of the van who pulled into me, denied any responsibility (most likely in denial for causing such pain and suffering on my behalf) for the accident. Not an uncommon response to something so extreme.

I care greatly for truth, and if this were genuinely my fault I would be 100% prepared to accept this accident was my fault, that I deserved no compensation. But this is not the case. I am a safe experienced rider, a law abiding citizen whose life has been wrecked by the carelessness, lies and refusal to accept responsibility from a van driving, scrap metal collecting ‘rag and bone’ man. This man is a liar, nothing more than criminal common scum, trying to avoid the small charge (which would actually have no effect on his life) of ‘driving without due care an attention’.

For me the knock on effect of who receives the charge is huge (as far as the courts are concerned, someone has to be charged with something). It’s the difference between me receiving no compensation and being HEAVILY in debt, or receiving the compensation I deserve for my crippling injuries, and justice being done. Even as I write this I can feel the trauma within my body, continuous aches and pains. No doubt the ‘rag and bone’ man is sitting down enjoying a meal with his family, feeling no remorse, still on the roads driving recklessly.

Court, Statements and Evidence

The charges of ‘driving without due care an attention’ were to be heard at a local magistrates court as described.

Present was myself, the driver of the van and five ‘neutral’ witnesses, which defaulted to the side of prosecution.

I will summarise the main points from each person’s statement (the points that actually held any weight in court).

My statement

I explained previously what happened, but just to re-iterate I shall explain again. Riding from my house to work in the morning, I was in the outside lane, accelerating from a junction on my restricted motorcycle. As I was about to pass a van, the van began to pull into me abruptly without any indication or warning. This resulted in me having the brake sharply, losing control. I fell off, and smashed into a post at around 35 - 40 mph.

The Van Driver

He stated that he was driving in the inside lane (left) on a two lane road, travelling in the same direction as me. He said there was a lorry in front of him slowing, so he changed to the outside lane (right). However, he said before he changed lanes he indicated right, and checked his blind spot (not surprisingly as law requires). He said the reason he didn’t see me was because I must have been going so fast, that couldn’t have seen me after starting the manoeuvre. I quote he actually said, “he came out of nowhere”. This could only be true if the laws of physics did not apply to me. In reality as I’m sure you’re all aware isn’t likely.

Witness 1:

Before the accident happened, this witness was on the opposite side of the road heading towards site of the accident, from a distance of around 2 miles away from the site of the accident. This witness saw a motorcycle pass him at excessive speed (may I stress this was not me, and was on the other side of the dual carriage way I had the accident on).

The witness couldn’t remember any detail about the bike that passed him two miles before the site of the accident what so ever (colour, type etc). Two miles a head after seeing this bike pass, he saw on the other side of the road (implying if it was me – for this to be true I would have had to turn around at a junction where you can not perform a u-turn), an accident involving a motorcycle. He believed this to be the one that had passed him at excessive speed two miles from the accident site on the other side of the road, even though this is impossible seeing as the route this driver took was not the route I had taken from my house to work!

The fact that this ‘witness’ saw the accident after it had happened (you would have thought) coupled with the fact that his statement was not in agreement with my route from my house to work, should have immediately rendered this ‘witness’ statement useless!

Witness 2 & 3:

These ‘witness’s’ (if you can call them that) saw nothing before the accident, only the aftermath. I’m not even sure why they were considered witnesses in regards to a case concerning ‘driving without due care and attention’ if they’d witnessed nothing more than aftermath of an accident.

Witness 4:

This witness was a lone police officer travelling in a patrol car on the other side of the dual carriage way to me, heading towards me, and it was his statement that by far held the most weight. His statement essentially stated that he didn’t see the accident, only the aftermath; however he would have estimated my speed at 60mph+ as I passed him. I would like to point out the legality regarding police officers estimates of speeding. For a police officers estimate of speed to hold any legal ground in a court, there must be either 2 officers present in agreement to the speed being stated, or a single police officer with an electronic device. This is the LAW.

He stood up and gave evidence in court anyway, much to my dismay and disbelief. The magistrates took what he said as being 100% true, regardless of the law (like I said, magistrates have no understanding of specific laws like the one I described in regards to speed estimation and police officers).

Witness 5

Witness 5 had to be the most laughable, ridiculous witness statement of them all. Witness 5 stated that the van driver was in the outside lane all along (remember this statement is actually in disagreement with the van drivers statement, why the prosecution called him at all I do not know). This witness said he was travelling behind the van, and that I on my motorcycle somehow managed to overtake him in the car, on his right hand side! I’d like point out that to the right hand side of his car lays a quite significant sharp curb, with a gap between which is less than the width of my bike which no one in their right mind would try and overtake through.

What you are reading is how it went down in court. I am not writing this in a biased way what so ever. This is how it was heard. I get the feeling that the magistrates were bamboozled by the statements, confusing the relationships between them and / or what was being implied by the conflicting witness statements. In fact, I am sure they failed to even understand the contradictions, or picture mentally what had happened.

Summary of court outcome

After all the witnesses were heard in court, the magistrates retired to make their decision for around about 2 hours. We were called back into the court in high hopes seeing as the court case seemed to have gone very well, considering how contradictory the prosecutions witness statements were (some of which invalidated themselves outright). To our dismay and horror, they came to the conclusion I was guilty of driving without due care and attention, stating that the accident was my fault and the van driver was completely innocent.

In retrospect, I am not surprised. The few hours this case required to be heard, and judged, was no way near enough to grasp a full understanding of what had happened, or what any of the witnesses were saying. The events were complicated, and had taken me months to decipher to contradictory statements, and understand the true implications and validity of ‘facts’ being states. Here was a 19 year old male, motorcycle mechanic, crippled from an accident, up against 5 witnesses (if you can call them that! One of which being a police officer) claiming his innocence. I was surprised at the time, shocked at the outcome.

The outcome of this was serious for me, far more than anyone could possibly understand. Not only had justice not been done, but any chance of me receiving compensation was taken away by the magistrates misinformed, and judgemental (based on stereotype) decision. Also, for the charge of ‘driving without due care and attention’ I lost my licence, and was heavily fined. When the magistrates were sentencing me, this is what they said (I quote):

“We take into account your good character; we also understand how horrific your injuries were so we have decided to sentence you with 3 points and the payment of court fees”

Let me put this into perspective for you. Taking into account my injuries, and current life situation as a crippled young male, financially broke, they gave me 3 points shy of the maximum penalty for this offence, and offence I was not even guilty of in the first place. Though, this was far less a punishment than realising the conviction meant I now wouldn’t receive any compensation from the van drivers insurance company, which would have been (considering I’ve lost so much of my youth, and am crippled for life, and in my opinion no amount of money could compensate me for) in the region of about £500,000 – maximum.

My Crown Court Appeal

Not willing to settle with being convicted for something I was not guilty of, and losing any chance of compensation, I decided to challenge the magistrate’s decision. In the UK, the only way to do this is to (if you don’t have the money yourself) apply for legal aid, and appeal through the Crown court. There are three types of appeal. One is appeal against sentence, one is appeal against conviction and the other includes both. I chose to appeal against both, understandably.

Essentially, this appeal is the highest point in legal terms this dispute could ever reach, and was my last chance for justice to be done. The appeal is a re-trial, with all evidence and statements re heard in front of a Crown court judge, and two magistrates (no jury).

The reason I appealed is obvious if you’ve read everything I’ve written so far. Even if you’re considering the possibility that I’m lying here, and that I was driving without due care and attention (which I wasn’t) that still doesn’t change the fact that the witness statements were so inaccurate and irrelevant, that no real conclusion could have or should have been reached either way! Yet, it was. It’s the nature of the magistrate courts that by the end of the working day, someone has to walk out with a conviction. And it was so.

The very reason I was convicted in the magistrate’s court, was because they believed I was travelling above the speed limit, and that this is what caused the accident, this was ‘driving without due care and attention’. Even if I was speeding (and I can’t stress enough that I wasn’t), it doesn’t and wouldn’t change the fact that the driver didn’t look! So basically, I was convicted and found guilty of speeding. I would like you to look at the evidence (the only evidence, which is summarised in all the witness statements) again, and consider for yourself if this is grounds enough to convict me without reasonable doubt that I was speeding.

Keeping in mind that I was convicted of speeding, I decided that I would need to prove that I wasn’t speeding. It seems absurd that I should have to try and prove this in the first place, considering there is no REAL evidence to say otherwise, but this is the nature of such a justice system. This would be the main point of my defence. You may note that having no witness’s or anything as such, this was a very difficult task for me to undertake.

Considering my bike was restricted (legally required to be, I even have a certificate to prove it) my argument against the statement I was travelling over the speed limit, was that my bike couldn’t have physically reached these sorts of speeds in the distance travelled from the junction to the accident site. I’ve measured this distance myself with a trundle wheel (true metre) to be 252 metres. In my opinion as a bike mechanic my bike simply wasn’t capable of reaching the speed that the police officer had estimated I was travelling at (60 mph) thus eliminating him as a witness. You may wonder why his statement was still being considered as he was by himself without an electronic device at the time, on the opposite side of the road, driving a car. The reason is, because the justice system makes mistakes, and doesn’t give the defendant adequate opportunity to explain the relevant points!

Because my opinion doesn’t count as I’m the defendant, I had to have an expert to back up my opinion. This expert was a life time experienced motorcycle mechanic, and he wrote a letter confirming that in his professional opinion the bike wouldn’t reach the speeds stated by the police officer over the distance stated.

I then asked the court if I could submit this as evidence. They agreed, but that they would need the prosecution to instruct their own expert to investigate this claim made by my expert. I was told that my expert would not need to come to court, and that he could sign a form that says he wrote the letter, making it valid in court. After the prosecution had built a contradictory expert report against mine, they decided that my expert had to come to court and that if he didn’t, they wouldn’t accept my letter as evidence. I should note that their experts opinion held significantly more weight in the court than mine, as they spent around £5000 - £6000 for his opinion. As it turned out my expert (who was far more experience than theirs, theirs having 2 years experience) was unable to come to court due to his commitments.

I was then left with the problem of finding (and paying) a new expert who would be able to come to court, but got denied legal aid to pay for this. I considered paying for this out of my own pocket, but time was running out and in the pre appeal trial hearing, the judge would NOT grant me the time in order to instruct a new expert. Sorry, what? So this judge was effectively telling me that he wouldn’t give me time for justice to be done because he couldn’t be bothered, wrecking any chance of me receiving compensation or justice? Words do not explain my dismay.

I’m now awaiting the trial, and things don’t look so good. Chances are very strong that I will lose, and I’m sure you can understand (even if you choose not to believe me) that the evidence can not without a reasonable doubt convict me of something as small as ‘driving without due care and attention’ with such large consequences as me receiving no compensation, and being heavily in debt.

I’m calling on anyone who can advise me or help me. I feel lost, like there’s no where to turn any more. I feel as though justice in fact can not, and will not be done. Do I have any other options, or do I have to sit back and find myself guilty of something I am not? Should I accept justice will not be done and prepare myself for the horrible outcome? Is there anything else that can be done?



I beg of you, please help me.

Kris
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Kickstart
The Oracle



Joined: 04 Feb 2002
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PostPosted: 13:22 - 14 Dec 2007    Post subject: Reply with quote

Hi

Firstly, I am not a legal bod.

However just because you have been prosecuted does not mean the van driver is innocent and thus should not stop you getting compensation in itself (the magistrates comments alone on the van driver are irrelevant). It will make it more difficult.

You do have further avenues for appeal beyond this level. Not sure if denying you time to get an alternative expert witness would be grounds for an appeal. However can you try for the court date to be changed to allow your expert witness to appear.

I would be concerned about basing your entire case on the attempt to claim you could not reach that speed. Personally I would think it would be entirely possible in that distance (even assuming starting from a standstill), based on how quickly a 125 would get up to 60. Was there a detailed police accident report, and what speed did that estimate you to have been doing?

Legally you cannot be prosecuted for a conventional speeding offence on the uncorroborated opinion of a single police officer, but you were not prosecuted for that (from what you have said), and there are other offences that they can use anyway.

I think you really need a good professional opinion of the situation, and one who can show that the difference between 40 and 60 (even if you were doing 60) would be marginal, and would not excuse the van driver from failing to see you even if he had looked. It may cost you a load but you should be able to claim that back if you win (I would hope) and the amount would be small compared to the total insurance claim.

All the best

Keith
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Paivi
World Chat Champion



Joined: 30 Sep 2005
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PostPosted: 13:26 - 14 Dec 2007    Post subject: Reply with quote

Couldn't believe what I was reading, Kris! Looks like a miscarriage of justice!

Did you not have legal cover on your insurance? Even without it, why didn't your insurance company do anything????

Don't waste any more time, call the BMF's Biker Legal Line now on 08000 856 243. They're all experienced bike-riding lawyers and can give you better advice than you'd get here. There are two guys here that I think can advise you: T.C and Johnny GSX-R; I'm sure they won't mind you PM them.

Good luck with your case and your recovery process.
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gsxrpeak
Trackday Trickster



Joined: 06 Apr 2005
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PostPosted: 14:36 - 14 Dec 2007    Post subject: Reply with quote

thanks for the advice guys. i will ring that number today

kris
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Kickstart
The Oracle



Joined: 04 Feb 2002
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PostPosted: 14:43 - 14 Dec 2007    Post subject: Reply with quote

gsxrpeak wrote:
thanks for the advice guys. i will ring that number today


As a matter of interest, are you using a legal bod who specialises in motoring law at the moment?

All the best

Keith
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Dom
World Chat Champion



Joined: 06 Sep 2004
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PostPosted: 15:19 - 14 Dec 2007    Post subject: Reply with quote

I'm afraid I can't help with the legal side of things Kris, but I agree with Paivi, it seems clear that the system has completely failed you so far.

Good luck.
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tintin
Traffic Copper



Joined: 23 Jun 2004
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PostPosted: 15:33 - 14 Dec 2007    Post subject: Reply with quote

Kris - I'm also horrified that you should have had to suffer like this and that the application of the law has been so one-sided.

I STRONGLY advise that you have a specialist lawyer (and barrister) working on your case, without this you will be sunk. You will also need to have an expert witness of your own. I feel sure that you should be able to get an adjournment.

Are there enough people on this site willing to contribute something towards your legal fund? I would happily start with a contribution if something can be arranged.

Don't give up... If you know you are innocent (and it sounds as though you are) then hopefully somebody will pick up your story and help you.

You could also try this firm if you don't have any luck elsewhere:
https://www.ridersupport.com/templates/holding.asp?ParamReload=true&PageId=103
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gsxrpeak
Trackday Trickster



Joined: 06 Apr 2005
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PostPosted: 15:57 - 14 Dec 2007    Post subject: Reply with quote

tintin wrote:
Kris - I'm also horrified that you should have had to suffer like this and that the application of the law has been so one-sided.

I STRONGLY advise that you have a specialist lawyer (and barrister) working on your case, without this you will be sunk. You will also need to have an expert witness of your own. I feel sure that you should be able to get an adjournment.

Are there enough people on this site willing to contribute something towards your legal fund? I would happily start with a contribution if something can be arranged.

Don't give up... If you know you are innocent (and it sounds as though you are) then hopefully somebody will pick up your story and help you.

You could also try this firm if you don't have any luck elsewhere:
https://www.ridersupport.com/templates/holding.asp?ParamReload=true&PageId=103


My understanding of the law is quite good and I sat through the whole of the first court hearing (when they found me guilty) and from the argument the barrister put across and after hearing the whiteness I was certain of a win.

Then they find me guilty! The only thing I can put it to is judgmental magistrates. There was me a young man on a fast bike. And there was him, a middle aged man in a van.

It must have been the young one!

my Barister is quite good and i cant think how anyone could do a btter job. however it seems to be the system that is letting me down

the contribution is a really nice thing to surgest and i thank you. but there jsut isnt enough time..

they wont adjourn we alreaded asked in court 2 days ago.

kris
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T.C
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Joined: 05 Nov 2003
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PostPosted: 17:58 - 14 Dec 2007    Post subject: Reply with quote

I work in law both criminal and civil, so I will try and give you some perspective in simple terms.

To be classified as an accident, the law states that if owing to the presence of a motor vehicle on a road, injury or damage is caused to a third party, so quite clearly and without teaching you to suck eggs you have been involved in an accident.

To prove careless driving which is sub divided into two sections of driving without due care or driving without reasonable consideration for other road users, the prosecution has to prove that your driving/riding fell well below that which would be expected of a reasonably competent driver.

Speed in itself is insufficient to convict, although a specialist traffic officer can give expert evidence of opinion for the offence of speed reckless which does not need to be recorded. but the conviction for careless has to take into account all the preceding and subsequent actions, not just the speed itself.

On this basis, to prove careless driving against the van driver would be quite simple, but because you have hit the van from the rear the prosecution has applied the rule of strict liability as the easy option. Why was not the van driver reported or prosecuted?

I do not think it would be that difficult to cast sufficient doubt for the matter to be thrown out of court, and it is even possible that the prosecution may decide to offer no evidence once they realise that a not guilty plea has been entered.

The Magistrates are sometimes quite sympathetic to these types of cases as they often recognise that the cause was actually through someone elses bad driving, and it will be interesting to see if they make comment as to why the other driver has not been prosecuted.

As far as your PI claim is concerned, whilst the prosecution has to prove beyond all reasonable doubt, in civil law it only has to be shown on the balance of probability, and judgement will be made on the facts.

If you were to be convicted, it is not the end of the world as far as your claim is concerned. The other side will claim that you are 100% liable because of your conviction, but I have seen good lawyers turn it around and have the non convicted driver held liable or at least accept 95% contributory negligence.

However, before worrying about the claim side of the claim, get the Magistrates side sorted out. If you have legal expenses insurance, get a good traffic specialist lawyer onto the case, they should be able to shred the evidence quite easily. From what you have said, if they convict, it will be an unsafe conviction.

Then you can worry about the claim side, and from my experience of over 30 years working in the legal profession (enforcement and civil litigation) I would say not too worry at this stage.
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FerretFing
World Chat Champion



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PostPosted: 18:02 - 14 Dec 2007    Post subject: Reply with quote

Sorry I can`t offer advice but just wanted to wish you all the best!!!! Thumbs Up
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FerretFing
World Chat Champion



Joined: 12 Nov 2007
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PostPosted: 18:05 - 14 Dec 2007    Post subject: Reply with quote

Sorry I can`t offer advice but just wanted to wish you all the best!!!! Thumbs Up
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Ravo
Scooby Slapper



Joined: 19 May 2007
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PostPosted: 18:29 - 14 Dec 2007    Post subject: Reply with quote

I'm going to ask a few questions, the answers of which might help or hurt your case.

How fast(slow) was the van driving that you had to overtake him?
If he was doing the speed limit, or over the speed limit, you were speeding.

Did you have to slow down to match the speed of the van before overtaking?
The point here is that if you had matched his speed and was behind him, he should have seen you. Also that a 33bhp restricted bike is not capable of rapid acceleration at that speed.

How far into the overtake were you when he began changing lanes?
Depending on where you were, a panic brake could be completely justified or complete nonsense.

What kind of driving record does the van driver have?
If there are records of him driving carelessly in the past, just simple things that indicate him not paying attention, they can be used.

What kind of driving record do YOU have?
Speeding? Wheelies? Careless overtakes? We're all young once.

Edit: You live in the UK, so no pleading the Fifth.
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prowler
Scooby Slapper



Joined: 06 Nov 2007
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PostPosted: 20:12 - 14 Dec 2007    Post subject: Reply with quote

Just terrible that, don't give up until you've got justice mate! Thumbs Up
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T.C
World Chat Champion



Joined: 05 Nov 2003
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PostPosted: 20:17 - 14 Dec 2007    Post subject: Reply with quote

Ravo wrote:
I'm going to ask a few questions, the answers of which might help or hurt your case.

How fast(slow) was the van driving that you had to overtake him?
If he was doing the speed limit, or over the speed limit, you were speeding.

Did you have to slow down to match the speed of the van before overtaking?
The point here is that if you had matched his speed and was behind him, he should have seen you. Also that a 33bhp restricted bike is not capable of rapid acceleration at that speed.

How far into the overtake were you when he began changing lanes?
Depending on where you were, a panic brake could be completely justified or complete nonsense.

What kind of driving record does the van driver have?
If there are records of him driving carelessly in the past, just simple things that indicate him not paying attention, they can be used.

What kind of driving record do YOU have?
Speeding? Wheelies? Careless overtakes? We're all young once.

Edit: You live in the UK, so no pleading the Fifth.


The van drivers driving record has no relevance in this case and in any case cannot be disclosed. The same applies with a defendant. Previous history is called anticedents and cannot be disclosed until such time as the magistrates (as in this case) or a Jury has decided on a verdict.

The van driver has a statutory duty of care to ensure that it is safe prior to changing position on the road, and on this basis case law has shown that if the motorcycle is inthe outside lane of a multi lane carriageway, the bikes position has no bearing on the liability of the van driver, so on that basis it again has no bearing in respect of how far into the overtake the bike was. However, had the overtake been on a single lane carriageway, then it could have a bearing, but! Primary liability would still lie with the van driver.

And lastly, speed again has no bearing, regardless of speeds, I go back to the van drivers statutory duty of care, and as far as civil litigation is concerned, speed is not allowed to be a basis for denying liability, although it can be used as evidence of contributory negligence.
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Pete.
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Joined: 22 Aug 2006
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PostPosted: 20:17 - 14 Dec 2007    Post subject: Reply with quote

Ravo wrote:
I'm going to ask a few questions, the answers of which might help or hurt your case.

How fast(slow) was the van driving that you had to overtake him?
If he was doing the speed limit, or over the speed limit, you were speeding.

Whether he was speeding or not doesn't exonerate a driver who fails to look and indicate before changing lanes. The law says you MUST NOT perform any maneuver that would cause another vehicle to change speed or direction. What speed the other vehicle is doing has no bearing on this rule. If the speed differential were very high, the driver of the van could be justified in saying the bike was initially too far away for him to make an accurate judgement as to it's rate of approach approaching, but the rule still applies. If you are going to make a lane-change, the onus is on YOU to check you are not hindering another vehicle's progress.

I think that the officer's evidence that he estimated the bike at 60mph could well work in favour of the biker here, since if the van was even only doing 30mph, the speed differential would be 30mph and there's no way the bike could have been too far back from the van with a closing-speed of 30mph for the driver to make a judgement, so he either didn't look, or looked and saw the bike but decided to pull-out anyway.


Did you have to slow down to match the speed of the van before overtaking?
The point here is that if you had matched his speed and was behind him, he should have seen you. Also that a 33bhp restricted bike is not capable of rapid acceleration at that speed.



A 33hp bike is plenty capable of good accelleration at legal speeds, certainly more than any van. Why would someone slow-down and match speeds with a vehicle they are going to overtake?
The van driver, if he checked his mirrors properly, would have been MORE LIKELY to spot a bike approaching at a greater speed. This is because the bike would be in the "blind spot" for a shorter time. If the bike was matching-speed with the van, and in his blind spot, then the only way the van could have seen him is by checking the blind-spot. A bike approaching his off-side at speed would either have been visible by the mirror-check, or the blind-spot check UNLESS the bike was also moving out to the 2nd-lane from behind the van.


How far into the overtake were you when he began changing lanes?
Depending on where you were, a panic brake could be completely justified or complete nonsense.

What kind of driving record does the van driver have?
If there are records of him driving carelessly in the past, just simple things that indicate him not paying attention, they can be used.

What kind of driving record do YOU have?
Speeding? Wheelies? Careless overtakes? We're all young once.

Edit: You live in the UK, so no pleading the Fifth.

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132.9mph off and walked away. Gear is good, gear is good, gear is very very good Very Happy
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Kickstart
The Oracle



Joined: 04 Feb 2002
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PostPosted: 20:30 - 14 Dec 2007    Post subject: Reply with quote

T.C wrote:
However, before worrying about the claim side of the claim, get the Magistrates side sorted out. If you have legal expenses insurance, get a good traffic specialist lawyer onto the case, they should be able to shred the evidence quite easily. From what you have said, if they convict, it will be an unsafe conviction.


Problem seems to be that they have already convicted him in a magistrates court (and quite possibly an unsafe conviction). Issue seems to be that he needs to prove that the conviction was unsafe.

All th ebest

Keith
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T.C
World Chat Champion



Joined: 05 Nov 2003
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PostPosted: 21:08 - 14 Dec 2007    Post subject: Reply with quote

Kickstart wrote:
T.C wrote:
However, before worrying about the claim side of the claim, get the Magistrates side sorted out. If you have legal expenses insurance, get a good traffic specialist lawyer onto the case, they should be able to shred the evidence quite easily. From what you have said, if they convict, it will be an unsafe conviction.


Problem seems to be that they have already convicted him in a magistrates court (and quite possibly an unsafe conviction). Issue seems to be that he needs to prove that the conviction was unsafe.

All th ebest

Keith


Sorry, you are right. although I was writing in past tense I was refering to the appeal and not the original magistrates hearing, although the same principles apply, and as you say it would appear that the conviction is unsafe.

I am surprised that the prosecution got an expert witness with only two years experience, this would certainly create doubt and most definately credibility issues. Normally the prosecution or the defence approach or use one or other of only two motorcycle expert witnesses as listed in the Law Society register of expert witnesses.

I am one of those two Wink and they certainly never contacted me, and I know they did not contact the other expert based in Somerset as he is a personal friend and we normally pick each others brains before we go to court just to make sure that all our bases are covered.


I still think based onwhat you have said you have good grounds for your appeal to suceed, you just need to be sure of your facts and stand your ground.
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Kickstart
The Oracle



Joined: 04 Feb 2002
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PostPosted: 21:16 - 14 Dec 2007    Post subject: Reply with quote

Hi

Think he really needs some decent professional legal advice with experience in that area. And soon as well (reading between the lines the court case is in the non too distant future). Hopefully then they can contact you or your main competition.

All the best

Keith
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Pete.
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Joined: 22 Aug 2006
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PostPosted: 21:29 - 14 Dec 2007    Post subject: Reply with quote

Could TC now appear as a witness though, having contributed to this thread?
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132.9mph off and walked away. Gear is good, gear is good, gear is very very good Very Happy
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T.C
World Chat Champion



Joined: 05 Nov 2003
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PostPosted: 21:32 - 14 Dec 2007    Post subject: Reply with quote

Kickstart wrote:
Hi

Think he really needs some decent professional legal advice with experience in that area. And soon as well (reading between the lines the court case is in the non too distant future). Hopefully then they can contact you or your main competition.

All the best

Keith


Bit late now, Stu (my opposite number )(we don't have competition in this field Mr. Green ) is booked through until the middle of next year and I am in a similar position, but even then there is no guarantee we would be appointed anyway.

All it requires is a decent (now it is going to appeal he will get one anyway) Barrister who has half a brain when it comes to traffic cases. The Judge may even throw it out before before any evidence is presented as he will have had a good look at the case papers before the appeal is heard anyway. I have seen this happen on many occasion and even had the Judge criticise the Magistrates for even accepting a plea rather than dismissing it. Not often mind, but it does and can happen.
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JonB
Afraid of Mileage



Joined: 03 Jun 2004
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PostPosted: 22:06 - 14 Dec 2007    Post subject: Reply with quote

Man, I feel for you so much.

Quite often when motorcyclists on this site have crashes they are quite up their own arse and believe they are not at fault, but I can tell just through your text that you have been the victim of a miscarriage of justice.

The pain you have gone through is the worst imaginable.

I hope it all works out for you.
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