View Full Version : Biking court cases: Grace vs Tanner
So the insurers have finally got back to me after getting knocked off last July:
http://forums.sv650.org/viewtopic.php?t=42456
The car's insurers are offering 50/50, on the basis that the incident is similar to Grace vs Tanner and that resulted in a 50/50 result. I'm fully comp so 50/50 is only worth 50% of the excess back to me (£100) so thats not good news, I still lose my NCB.
Here is what I have on Grace v Tanner:
Case: grace v tanner ( citator)
G appealed against the dismissal of her claim in negligence against t arising from a collision on a roundabout between her motorcycle and Ts vehicle. Both G and T had been proceeding south along the A23, which was a dual carriageway. T had been proceeding in the left hand lane around the roundabout. However, she noticed the exit for the A23 too late and therefore carried on in the left hand lane around the roundabout. G had been travelling in the right hand lane around the roundabout. She attempted to take the exit for the A23, assuming that T was going to do likewise, and the collision occurred. G accepted that she was negligent, but argued that T had been equally so.
Held, allowing the appeal, that T had not been negligent in missing her turning, she had been negligent in failing to realise that there might be someone in the outside lane who wanted to take the A23 exit. In the circumstances, a division of responsibility of 50/50 would be appropriate.
Court: (CA) Court of Appeal
Judge: Schiemann, L.J.; Judge, L.J.
Judgment date: February 27, 2003
Reported: [2003] EWCA Civ 354
Counsel: For G: S Walsh. For T: P Jones
Solicitors: For G: Nelson Nichols, For T: Healeys
In my view Tanner got lucky here as Grace admitted negligence. I have not admitted any fault, and the car who hit me was doing a U-turn around the roundabout, not simply missing a turn, and I was going for the last exit. But because of this case my insurers are recommending we take 50/50.
Any ideas what to do? Write a nice letter to my insurers sighting the differences and telling them to contest it? Or is it time to contact some biking specific solicitors?
Or is it time to contact some biking specific solicitors?
Yes - at least find out their opinion.
Thanks. Can anybody recommed a good biking solicitor to talk to?
Bromily Holcroft have been ok to me so far, but the result is still not complete.
These guys have very good rep:-
White Dalton (http://www.whitedalton.co.uk/index.php)
Jelster
23-01-07, 11:30 AM
These guys have very good rep:-
White Dalton (http://www.whitedalton.co.uk/index.php)
Maybe Ed can help too...
(He's never around when you need him is he :roll: )
.
Christ I nearly had an accident like that last year. A car was in the left lane and I was in the middle (going straight over the 3 lane roundabout) and about to accelerate onto the dual carriageway when the car continued around the roundabout and nearly took my front wheel out from under me.
How the **** can that be a 50/50??!?!?!?!
I mean I just cannot see how I could have been in any way responsible or done anything to avoid it?
These guys have very good rep:-
White Dalton (http://www.whitedalton.co.uk/index.php)
Yep thumbs up from me, I'm using them at the moment. I think they even quote the Garace vs Tanner thing on there site saying they can show that in most cases this is not relevant. Its just used by the insurance companies as a easy climb down.
Not the same but shows you a example of what insurers get up to, taken from the White Dalton site -
Overtaking lines of traffic
Powell v Moody
One of the most common accident scenarios we deal with which seems to cause the most problems for insurers to pay out on is where a motorcyclist has been filtering past slow moving traffic and a car either emerges from a side road straight in to his or her path or turns right, either in to a drive or side turning, or a factory entrance when the motorcyclist is either alongside or too close to do anything about stopping. Insurers will parrot the case of "Powell v Moody" and then sit back and see whether or not the solicitors actually know what they are talking about. Powell v Moody, whilst never having been technically overruled is a case which has very limited use. In the particular circumstances of that case a lorry driver who was waiting in a queue waved a car driver out from a side turning. The car driver pulled out the side turning, according to the Judge, inching forward slowly and as he came forward he was struck by a motorcycle, who was overtaking the lorry.
That case very much depends upon the facts. For a start, the motorcyclist was overtaking when he couldn't see. Unless you are either very short or riding a very small motorcycle, you will be able to see over the roofs of most cars, or if you care for your own safety, you can look through car windows to see what is going on through the car. You can also position yourself for the best views. In this case, the Claimant didn’t and found himself filtering past traffic whilst blind, because he couldn't see through the truck.
The Court of Appeal in this little reported case, which causes nothing but trouble said in short that if you pull out on to the road, you can't rely on anyone else's wave or flashing you out, but if a motorcyclist is filtering around the outside edge of a queue he owes a very high duty to be able to stop rapidly if a vehicle emerges, or some other emergency occurs. The case has been slowly and steadily chopped down to what is now the real position, whereby in those sort of circumstances each party is equally to blame. The motorist owes a duty not to pull out until he can see that his way is clear and the motorcyclist owes a duty to be able to slow down when he is filtering, which is not illegal, and where both parties are in breach of their legal duty the Court will regularly find out these cases are 50/50. You could find an 80/20 split against the motorcyclist where the motorcyclist is travelling too rapidly to be able to brake at all, or you could just as easily find a split very much more in favour of the motorcyclist where the car driver comes out of the junction quickly and not giving the motorcyclist a chance to escape. That is the sort of case where Powell v Moody would be reversed and the motorcyclist would only bear a small proportion of the blame.
We have had 100% settlements in cases of filtering where cars have emerged from drives, garages, factory entrances and side turnings where the evidence has been that the car driver pulled out too quickly and the motorcyclist really could have done nothing to avoid the accident. It is important in cases such as this to get the engineers report from the damaged car as well as the engineers report and/or repair invoice for the motorcyclist which will show where all the damage has been done.
Insurers will throw Powell v Moody at you in just about any circumstances involving a motorcyclist, because in effect they seem to think that the motorcyclist can be blamed for anything. If you feel that your solicitors are accepting an 80/20 split against you, without justification, then at least talk to us, because we very rarely settle these cases on 80/20 and usually when we have done so, it has been the client's decision rather than ours.
In cases such as this it is usual for us to attend the accident scene so that we can check who could have seen what. It is in cases like this where we put in the homework that we usually come out on top and achieve better outcomes than clients have been told to expect from other solicitors.
The Car Turns Right When I was Overtaking
This is a very typical accident scenario for us. Motorcyclists overtake. Everyone knows that. Car drivers turn right, again everyone knows that. However, a lot of car drivers seem to take the view that if they turn their indicator on, that gives them the right to turn right without checking their mirrors, taking an appropriate position on the road, or looking. We have dealt with hundreds of cases involving this accident scenario and a great number we have won outright, simply by doing our homework, measuring up, taking photographs and reconstructing what the car driver would have seen had he been bothered to look. We also know what you, as a motorcyclist, would or should have seen and can therefore give you a very accurate assessment of what you are likely to get if the case goes to Court. An advantage which we have over a lot of other solicitors is our training as barristers which gives us very much more confidence in Court than solicitors whose training does not usually involve advocacy and also insurers generally know that we are quite happy to take cases to Court. Court holds no particular fear for us.
IMO, I aint no legal type, so ignore everything below :D
His fault, but I shouldn't have been there.
I've been back to read all the previous thread on the subject, and IMO, it's not worth a 50/50. I'd say stick to your guns, don't accept negligence. They were in the wrong lane, yes, so they are at fault. You said yourself that you shouldn't of been there either, so you were in the wrong too. How much, is for the court to decide.
IMO, you'll be looking at around 75/25 in your favour, which probably means NCD lost anyway. Bu that's better than 50/50, so hold out for whatever you can get ;)
They were in the wrong lane, yes, so they are at fault. You said yourself that you shouldn't of been there either, so you were in the wrong too. How much, is for the court to decide.
Thanks for going back and reading that stuff, it was a bit of an essay! :)
I don't agree that "I shouldn't have been there" in any way implies negligence on my part. What I meant by "shouldn't have been there" was that when I saw the car doing a stupid manouevre I should have backed right off and let him go his muppet way. Instead I assumed that he'd missed his turn but would stay in his lane, so I stayed in mine. That was a bad assumption, but not a negligent one. I'd assumed that he'd stick to the rules of the road, where I should have assumed even more stupidity on his part.
http://www.sorrymate.com/
Try these.
socommk23
23-01-07, 11:42 PM
if you were in the right lane for your exit and he wasnt dont take 50 50!
Warthog
24-01-07, 11:53 AM
It seems to be 100% the other muppets fault, so although more contesting is hassle, I hate injustices and would fight it all the way. Maybe when you win we can all cite your case when it happens to us!
On an aside, maybe Ed can tell me (*limited legal understanding warning*) because we have case law, what happens if you get one dodgy decision in a case, and now that sets a crap precedent. Shouldn't each case be judged on its own merits?
fraser01
24-01-07, 01:45 PM
Nope i would fight that also...
Just had a long chat with a friendly solicitor at White Dalton. They can't help me on a no win no fee basis as my losses are less than £5K (no injuries and bike written off for £3K). They could take the work on a chargeable basis but he seemed to think that it would not be worth it, its only really my NCB that is at stake here.
He did give me some good advice though, Appeals cases are binding but only based on the material facts, so its up to me to convince both insurers that my incident was not the same as that case. So I'll have to write to my insurers explaining how my case is different, and asking them to keep fighting this one.
socommk23
24-01-07, 05:16 PM
Just had a long chat with a friendly solicitor at White Dalton. They can't help me on a no win no fee basis as my losses are less than £5K (no injuries and bike written off for £3K). They could take the work on a chargeable basis but he seemed to think that it would not be worth it, its only really my NCB that is at stake here.
He did give me some good advice though, Appeals cases are binding but only based on the material facts, so its up to me to convince both insurers that my incident was not the same as that case. So I'll have to write to my insurers explaining how my case is different, and asking them to keep fighting this one.
go for it !
good luck!
Christ I nearly had an accident like that last year. A car was in the left lane and I was in the middle (going straight over the 3 lane roundabout) and about to accelerate onto the dual carriageway when the car continued around the roundabout and nearly took my front wheel out from under me.
How the **** can that be a 50/50??!?!?!?!
I mean I just cannot see how I could have been in any way responsible or done anything to avoid it?
I am not blaming you in anyway, I have been in similar near misses, but I have learnt it is best never to over or under take on a roundabout or on the exit, that way it doesn't really matter what the muppets do you will be OK. I tend to use the left and middle lanes only, rarely the right, and use the power of the bike to ensure I am never "next" to a muppet.
Always assume they are going to do something stupid, they probably will!
It's in the interest of both insurance companies to get a 50/50 decision. If there is any conceivable way to get that result then they will.
I have also been stuffed by insurance companies agreeing a 50/50 decision.
I wont bother going into details but at the end of the day, when you are going down a road and get hit by a car exiting a garage from the right, how that can end in a 50/50 decision is beyond me. Both insurance companies agreed without consulting me at all. By the time I found out about it 6 months had passed and they told me the case was closed.
By the time I found out about it 6 months had passed and they told me the case was closed
Sorry to hear that, I'm not surprised, the stuff they have done to me is nearly as bad. They didn't tell me when they wrote the bike off, luckily the lady at the rescue yard called me to say that she'd been told to send my bike to a salvage yard and was that ok... :evil: Then on the legal side after hearing nothing for 7 months I get a letter (sent to my old adress, even though the insurers have charged me £200 for my recent change in address) saying that if I don't respond in 14 days they will assume I agree to 50/50. A bit better than what they did to you, but still, WTF?
The bit I like in their letter says that 50/50 means I will have to "pay 50% of the car driver's losses, if he has any". Like, after 7 months, shouldn't they f!?!?ing know if he has any losses?
I'd blame all this on ebike and their cheap rates, but I'm not sure other insurers would be any better.
By the time I found out about it 6 months had passed and they told me the case was closed
Sorry to hear that, I'm not surprised, the stuff they have done to me is nearly as bad. They didn't tell me when they wrote the bike off, luckily the lady at the rescue yard called me to say that she'd been told to send my bike to a salvage yard and was that ok... :evil: Then on the legal side after hearing nothing for 7 months I get a letter (sent to my old adress, even though the insurers have charged me £200 for my recent change in address) saying that if I don't respond in 14 days they will assume I agree to 50/50. A bit better than what they did to you, but still, WTF?
The bit I like in their letter says that 50/50 means I will have to "pay 50% of the car driver's losses, if he has any". Like, after 7 months, shouldn't they f!?!?ing know if he has any losses?
I'd blame all this on ebike and their cheap rates, but I'm not sure other insurers would be any better.
Interesting to read this & find out that you're with ebike, my son is still waiting to get an outcome from his accident which happened almost a year ago, he was filtering up the side of a stationery que of traffic when this plonker in a car pulled out without looking or indicating & knocked him off, the people who deal with the claim proceedure on ebikes behalf say this will probably end up as a 50/50 claim because filtering involves an element of danger, i can't type my reply.
i can't type my reply.
I just sent them a very carefully worded "I won't accept 50/50 because..." letter. Odds on they will just wait another 8 months hoping that I get fed up and settle. :evil:
What I really need is a court verdict similar to Grace vs Tanner where the biker won. If I was Tom Cruise in a Grisham film I could read in the law library all night and find the case I needed at daybreak. But I don't have a law library and I can't find a searcheable court cases database online, seems you have to be a solicitor to get that, so I'm stuffed..........
Lynw's written rather a lot on 50/50 stuff after a incident she had which she drafted up a 'default' letter.
Post one. (http://forums.sv650.org/viewtopic.php?t=47960&start=0&postdays=0&postorder=asc&highlight=filter+letter)
Post two. (http://forums.sv650.org/viewtopic.php?t=22717&start=0&postdays=0&postorder=asc&highlight=filter+letter)
You star! :) Lynw's letters aren't that much help, as I was not filtering or overtaking, but she references this site http://alpha.bailii.org/form/search_multidatabase.html which does appear to be a searchable law database. So I'll be up all night looking at all UK cases with the word roundabout in them.... :)
Flamin_Squirrel
29-01-07, 06:40 PM
I see one fundamental difference between the G & T (mmm alcyhol) case and yours. In your case there are two exits off the roundabout, therefore you were in your own lane, they crossed into it and knocked you off. Fight the numpty!
SVeeedy Gonzales
30-01-07, 12:34 PM
My IAM instructor has been pulling me up on this lately; he says it's too risky to be on the inside of any other vehicle when coming to a turning off a roundabout, due to the fact that people are more interested in looking at where they're going than the traffic around them. Previously I've preferred the centre or right hand lanes and been alongside vehicles at the exit.
His advice has been to filter into a gap in the traffic, either coming up to the roundabout or going onto the roundabout, and to never be on the inside of a vehicle (and putting your safety in their hands) when coming up to your exit.
There's no law that says you can't miss your turning, there's no law that says you have to be in one lane or the other, just guidance; being on the inside of someone on a roundabout means that you'll be overtaking them at some point - either when they turn off and you carry on, or when you turn off together at the same junction. Courts view someone who gets caught out when overtaking as the guilty party.
It doesn't excuse the fact that many car drivers are morons who don't care for the safety of others and don't bother looking before they do something daft; we need to *remember* that they're dangerous and not give them the chance to take us out in the first place. The court system won't automatically back you up - you have to have a good solicitor to argue that by crossing into another vehicle's potential path (which you have to do if you're going to take an exit and there's a vehicle on your left) you weren't at fault. It can be done, if you're willing to fight hard enough and the other solicitor isn't smart enough to know how to defend their client.
The best advice is to not expect another driver to do something and risk your life and machine on it though... then you don't have to deal with any of that. Good luck with the case, hope you get them to accept 100% liability. Too many biking cases now where just being on a bike is getting us 50% liability before we even start looking at who's fault it was.
A happy ending! :)
At renewal time last summer e-bike sent me my details and it listed the accident but said the costs had been fully recovered. Was surprised as I hadn't heard back from them since I'd told them I wouldn't accept 50/50 and was told it would go to court. Thought might be a computer error but too busy moving house/job to worry about it.
Today I got a cheque from the insurers refunding my excess so its official, other party must not have fancied their chances in court and accepted 100%.
So full marks to e-bike and their subcontractor "The claims service" for getting the money, and no marks for letting me know what the hell happened and taking so long over it. Still, better than the other way round! :p
:smt038 But shame there's no Kylie vs ... case proving it for the rest of us.
Warthog
13-02-08, 09:50 PM
Nice! Justice is served, well done for not backing down when you were in the right. And incidently, that proves most of the advice from us lot on here was right too ;)
Case: grace v tanner ( citator)
G appealed against the dismissal of her claim in negligence against t arising from a collision on a roundabout between her motorcycle and Ts vehicle. Both G and T had been proceeding south along the A23, which was a dual carriageway. T had been proceeding in the left hand lane around the roundabout. However, she noticed the exit for the A23 too late and therefore carried on in the left hand lane around the roundabout. G had been travelling in the right hand lane around the roundabout. She attempted to take the exit for the A23, assuming that T was going to do likewise, and the collision occurred. G accepted that she was negligent, but argued that T had been equally so.
Held, allowing the appeal, that T had not been negligent in missing her turning, she had been negligent in failing to realise that there might be someone in the outside lane who wanted to take the A23 exit. In the circumstances, a division of responsibility of 50/50 would be appropriate.
Court: (CA) Court of Appeal
Judge: Schiemann, L.J.; Judge, L.J.
Judgment date: February 27, 2003
Reported: [2003] EWCA Civ 354
Counsel: For G: S Walsh. For T: P Jones
Solicitors: For G: Nelson Nichols, For T: Healeys
Glad it turned out right but the way i read the above, in that case the biker was at fault not the car driver.
timwilky
15-02-08, 05:52 PM
I think we see many examples of where this could occur. Normally due to people entering a roundabout in the incorrect lane i.e. left when intending to turn right and thus cutting up those going straight on who have entered in the correct lane for their manoeuvre.
Many times have I observed this and thought there for the grace of god etc.
Now even when I know I am in the right, A quick life saver before attempting to exit just to make sure it is clear.
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