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Old 09-07-09, 11:33 AM   #21
AndyW
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Default Re: That Filtering & Insurance Letter.

FYI:
Case law on filtering
http://www.bailii.org/cgi-bin/markup...method=boolean
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Old 10-07-09, 10:52 AM   #22
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Default Re: That Filtering & Insurance Letter.

Quote:
Originally Posted by AndyW View Post

thats good all we need now is one for the Scottish law and we're sorted
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Old 21-07-09, 12:28 AM   #23
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Default Re: That Filtering & Insurance Letter.

Scottish Road Traffic law and English road traffic law is the same as far as I'm aware
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Old 28-07-09, 09:01 AM   #24
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Default Re: That Filtering & Insurance Letter.

I think everyone could benefit from buying a new copy of the highway code to refresh their memory, the police use references to the highway code when describing/supporting traffic offences..so grab yourself a copy!
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Old 08-09-09, 09:53 PM   #25
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Default Re: That Filtering & Insurance Letter.

As promised, here is a copy of the letter I submitted to my insurance and solicitor after the filtering accident detailed in my T-boned thread. I don’t know if the letter had any influence on the decision of the third party insurer to concede liability because I also had good witnesses. It is an up-date of the original letter in this thread and has been modified to reflect my own accident circumstance ( which was a car exiting a side street ) and also to include topical references to the most current version of the Highway Code at the time.

I hope you never need to use this letter and wish you all the best if you do.

Ref: - Accident ******

My Circumstances

I was slowly overtaking a stationary / slow moving line of traffic on the A**** ******* Road towards ***** after being diverted off the M**. My speed was approximately 10 to 15 mph and my headlights were on dipped beam. The conditions were very good being warm and bright and the road surface was dry and in good condition. I noticed a green **car** suddenly pull away from a side street on the left but I had no time to brake because I was already virtually in front of her as she started to move from stationary in the side road. I managed to swerve very slightly just as the **car** impacted the side of me and my bike. The impact was completely ‘side on’ with contact starting behind my front wheel, to my left side fairing, foot / footrest assembly and exhaust. This caused my foot injury.

I regained control of my motorcycle which was propelled onto the opposite carriageway, then braked and brought it to a controlled stop on the opposite kerb about 20 to 30 feet further on.

The **car** driven by Ms ****** came to a halt partially on the kerb almost opposite the side road she exited and pointing in the **town** direction.
Ms ******* came across as I tried to assess my condition and was very apologetic and repeatedly stated that she was sorry because she pulled straight out without looking after being flashed out by a car in the queue. As far as I can remember she continued to reiterate this in front of one or both witnesses when they came across to give me their details.

With reference to the circumstances of the accident, could I refer you to rule. 88 of the Highway Code in the section "Rules for Motorcyclists" which reads as follows:

88
Maneuvering. You should be aware of what is behind and to the sides before maneuvering. Look behind you; use mirrors if they are fitted. When in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slow-moving traffic, take care and keep your speed low.
A number of important points arise from this rule.

1. Note the use of the word WHEN as emphasised in the rule. It does not say "Do not overtake traffic queues" (or words to that effect), or suggest that it is an inappropriate course of action to take. It is clearly not a prohibitive instruction. This clearly envisages that motorcyclists may, in the normal course of riding, overtake traffic queues.

2. I had already checked my mirrors and glanced behind to make sure nothing was overtaking the traffic queue already.

3. It was only the fact that I was progressing relatively slowly, in order to check for pedestrians who may be crossing between the vehicles making the accident much less serious than it would otherwise have been.

Before I move on, it is probably worth referring to the General rules for motorcyclists set out in rules 83 to 89. Again, I have reproduced these below.

83
On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. This does not apply to a follower of the Sikh religion while wearing a turban. Helmets MUST comply with the Regulations and they MUST be fastened securely. Riders and passengers of motor tricycles and quadricycles, also called quadbikes, should also wear a protective helmet. Before each journey check that your helmet visor is clean and in good condition.
84
It is also advisable to wear eye protectors, which MUST comply with the Regulations. Scratched or poorly fitting eye protectors can limit your view when riding, particularly in bright sunshine and the hours of darkness. Consider wearing ear protection. Strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision.]
86
Daylight riding. Make yourself as visible as possible from the side as well as the front and rear. You could wear a light or brightly coloured helmet and fluorescent clothing or strips. Dipped headlights, even in good daylight, may also make you more conspicuous. However, be aware that other vehicle drivers may still not have seen you, or judged your distance or speed correctly, especially at junctions.

You will note that:

1. I had complied with rule 83 / 84 by wearing substantial protective clothing, which again helped reduce the seriousness of the accident. My foot injury and therefore the capability to maintain control of the motorcycle would have been much worse if I was not as conscientious and experienced.

2. I had complied with rule 86 by using dipped headlights. I always ride with dipped headlights as it is considered good practice and safer to do so.

Accordingly, the only conclusion which may be drawn from the above is that I was riding my motorcycle safely and as envisaged by the Highway Code. I cannot, therefore, be to blame in any way for the accident.

Ms ****** Circumstances

I now turn to Ms *******’s driving manoeuvre.

I shall compare her manoeuvre to two fairly similar manoeuvres; setting off from rest as she was stationary and making a right turn.

Setting Off From Rest

This is governed by rule 159 of the General Rules for Using the Road. This is reproduced below:

159: Before moving off you should

use all mirrors to check the road is clear
look round to check the blind spots (the areas you are unable to see in the mirrors)
signal if necessary before moving out
look round for a final check.
Move off only when it is safe to do so.
Check the blind spot before moving off

It is quite clear that Ms ******* failed to undertake all, or more likely any, of the requirements given that my body nearly in front of her when she made the manoeuvre.

170
Take extra care at junctions. You should
Watch out for cyclists, motorcyclists, powered wheelchairs/mobility scooters and pedestrians as they are not always easy to see. Be aware that they may not have seen or heard you if you are approaching from behind
Watch out for pedestrians crossing a road into which you are turning. If they have started to cross they have priority, so give way
Watch out for long vehicles which may be turning at a junction ahead; they may have to use the whole width of the road to make the turn (see Rule 221)
Again, however, the emphasis of the first requirement is on observation. As set out above, Ms ******* failed to take this action.

Accordingly, the only verdict which can be reached from the above analysis of Ms *******’s manoeuvre is that it was undertaken without sufficient care and attention to myself and other road users.

Conclusion

Ms ******* was stationary and I took all reasonable care to overtake stationary vehicles, The car remained stationary so I proceeded to overtake. I checked before doing so. No checks carried out by Ms ******* before her manoeuvre as I approached and leaving me no chance to take appropriate avoiding action.

Ms ******* is young and and may lack experience, but this does not excuse her for not making the proper checks - what if I were a pedestrian or pedal cyclist? More substantial injuries could have been caused by her inattention.

As shown above, I have followed the road rules clearly and exactly and am in no way responsible for this accident. If Ms ******* had made all the checks required as shown above or been paying attention she would have been aware of my presence and not moved until I had passed, in which case this accident would not have occurred.

I trust this is sufficient to pass to her insurers.

Thanks Alan
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Last edited by Ratty; 08-09-09 at 10:01 PM.
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Old 12-09-09, 01:14 PM   #26
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Default Re: That Filtering & Insurance Letter.

Strike me that filtering is legal in certain circumstances but the scum-bag insurance companies will do everything they can to avoid paying. I'm quite inexperienced and generally tend to avoid filtering. Perhaps I will think otherwise when I've paid out for a new clutch or overheated engine.
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Old 05-10-09, 03:26 PM   #27
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Default Re: That Filtering & Insurance Letter.

One of the main benefits of riding a motorcycle is the fact that unlike our 4 wheeled counterparts, when we come upon lines of stationary traffic, we can still make progress and filter through towards the front of the queue. Filtering has been the cause of many a debate over the years with many arguing about the legitimacy of such an action. So what is the legal position?

Well for those of you who are unsure, let me ask you a question! What is filtering? In simple terms it is an overtaking manoeuvre, and in most cases it is perfectly legal provided:
You don't cross over or straddle a solid centre white line system.
You don't overtake after a 'No Overtaking' sign.
You do not overtake the lead vehicle within the confines of the zigzags of a pedestrian/pelican crossing as it may have stopped to allow pedestrians to cross.
No danger is caused to other road users and no vehicle is caused to alter course or speed.

So in short, providing those 4 conditions are complied with then there shouldn't be a problem, however when it comes to accidents, civil liability can paint a somewhat different picture.

When a motorcyclist is involved in a filtering accident, most insurance companies will try and use the case law of Powell v Moody which dates back to 1966 to mitigate their losses. In that case a motorcyclist was overtaking a line of stationary traffic and was found to be 80% to blame when he hit a car which was 'inching out' into the carriageway after a milk tanker signalled to him to pull out. The court felt that the motorcyclist was undertaking an 'operation' which is fraught with great hazard and which needed to be carried out with great care.

In the case of Clarke v Whinchurch in 1969, an overtaking motorcyclist (Moped) in similar circumstances was found to be 100% to blame. The judge ruled that he (the motorcyclist) should have realised something was happening up ahead when a bus in a line of slow moving traffic stopped to let a vehicle out from a side road on his left. The car came out quite slowly in front of the bus and was hit by the moped. (f you are ever involved in a filtering accident, you probably won't want to quote this case to the other side).

In more recent cases (Leeson v Bevis Transport 1972) the motorcycle and emerging vehicle were found equally responsible. The court said that the motorcyclist did nothing wrong in overtaking the line of stationary vehicles, but needed to keep an effective lookout, whilst the van driver should have been aware of the possibility of vehicles overtaking in this way.

The most recent cases of this kind was in 1980 in the case of Worsford v Howe. In this instance the motorcyclist was in a separate lane intended for vehicles turning right, when he was hit by a car which was intending to cross both lanes of traffic and turn right. The court found once again that both rider and driver were equally to blame and settled 50/50, however in 2006 the case of Davis v Schrogin found 100% in favour of the filtering motorcyclist, and I can post up a transcript of that case if anyone is interested .

In filtering cases, the court will when deciding who is to blame will look at:
The speed and position of the motorcycle in the road.
Whether the stream of traffic was stationary or moving.
How fast the other vehicle emerged from the side road or from the line of traffic.

Filtering is an accepted and legitimate practice, and unless there is a case of dangerous or careless driving to answer, or one of the 4 conditions mentioned previously have been breached, then it is very rare that a Police prosecution will follow, but in terms of a civil action, then this is where the real headache can begin.

As it stands at the moment, although some of the most recent cases have found both parties equally responsible, and in some cases they courts have found 100% in favour of the motorcyclist, you have to bear in mind that you could still end up bearing 80% or even 100% of the blame depending on the evidence.

So to sum up, filtering in most cases is perfectly legal, is accepted as being a benefit of riding a motorcycle and is something that just about every rider has done at some stage without any problems, but, should you be unfortunate to have a collision whilst filtering, then just be aware of the pitfalls you are likely to encounter until such time as current case law is updated.


Overtaking/Filtering
When on the bike, I try and avoid using Motorways wherever possible but there are occasions when this is unavoidable. Statistically they are among some of the safest roads in the UK, but unfortunately they are also the only roads where learners cannot receive formal training unless you happen to be driving an HGV. As a result, many incidents that do occur on our Motorways are not only due to a lack of education and knowledge, but also the overall higher speeds, which often result in incidents, occurring with more serious consequences.

A Motorway is in most cases a three lane carriageway, which usually has a maximum permitted speed limit of 70 miles per hour (it can be lower of course). The left hand lane normally referred to as lane 1 is the driving lane and the middle and outside lanes referred to as lanes 2 and 3 are nothing more than overtaking lanes. Any vehicle that uses the Motorway must be capable of attaining a minimum speed of 25 miles per hour, otherwise certain restrictions apply.

The biggest advantage a motorcycle has over a car when on a Motorway is the fact that when faced with congestion or stationary traffic, we don't have to join the end of the queue and just sit there like our four wheeled counterparts. We can due to our lack of width filter, whether it is between vehicles or using a different lane. However, over the years there have been many debates as to what is and is not legal.

Filtering is simply another word for overtaking, but many riders are confused over the legality of this manoeuvre, either because they have been told by friends that it is illegal, or because it perhaps entails carrying out a nearside overtake, (passing on the left) which is considered by many to be also illegal.
There is nothing in law, which prevents us from overtaking provided,
Solid central white lines are not straddled or crossed over.
It is not after a 'no overtaking' sign.
Within the confines of the zigzags of a pedestrian/pelican crossing the lead vehicle which may have stopped to allow pedestrians to cross is not overtaken.
No danger is caused, and no vehicles are made to alter course or speed.

In respect of a Motorway, the only issue that becomes relative in practice is the danger issue.

In practical terms the Police have no problem with riders filtering either. However many Policemen consider a maximum speed of no more than 10 - 15 mph above the speed of the slowest moving vehicle as acceptable. Beyond this speed they would seriously consider reporting you for driving without due care and attention.

In respect of filtering down the nearside or undertaking, how many times have you been faced with stationary traffic in lanes 2 and 3, and yet lane 1 is empty? How many times have you been confronted by a car sitting in lane 2 doing 50mph with no other traffic in lane 1, but lane 3 is heaving? Have you considered going past on the nearside?

Although it goes against what is said in the Highway Code, it is in fact not illegal in itself to undertake again providing no danger is caused to other road users, and drivers are not caused to alter course or speed.

However, although the absolute offence of nearside overtake was removed from the statute books many years ago, the possibility of being reported for careless driving, or in the worst cases dangerous driving still apply.

If you filter or undertake, it is for the Police to prove that your standard of riding fell below what would be considered acceptable. And in this modern day and age, many Police cars and bikes carry video cameras. So, if you weave from lane to lane, suddenly cut across the front of overtaken vehicles, ride too aggressively between vehicles, then there is a fair chance that not only will you be able to see yourself on film, but you could end up looking at a Court appearance as well.

If as a result of you undertaking or filtering a collision occurs, then the chances are that you will be held liable. However, if you ride smoothly and safely, don't take risks, and the safety of others is not compromised then you should not have any problems.

Before carrying out any manoeuvre, always ask yourself whether it can be done safely, will other traffic be inconvenienced, and are your actions likely to really give you any benefit? If the answer to the first two is yes, then hold back until such time as an opportunity presents itself, but always be aware of the possibility of other vehicles changing lanes suddenly without warning.

Last edited by T.C; 05-10-09 at 03:29 PM.
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Old 05-10-09, 04:42 PM   #28
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Default Re: That Filtering & Insurance Letter.

I've only been riding for a few months and I'm too scared to filter lol. I was riding through town yesterday and I could see down a whole line of traffic jammed cars. I thought to myself, "Argh, should I, shouldn't I". Decided not to in the end. A few seconds later a bike came rocketing down through the centre of the road. Good call that time, could have ended badly
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Old 05-10-09, 05:00 PM   #29
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Default Re: That Filtering & Insurance Letter.

Triv, dont be scared to filter. Try it in small doses at first on sections of road you are familier with. You dont need to go bombing along either...infact, much the opposite. I filter relativly slowly, and every now and then check my mirrors. If someone if up behind me, I'll pull aside (when possible and safe to do so) and let them through.

Use common sense, and if you don't trust something and feel something bad is about to happen...slow down, or stop.

Be aware of cars with folded in mirrors (I sometimes ask if the driver would like me to fold them back out!), or no mirrors at all. Look for cars moving over in their lane, they might be about to change lanes or turn off...look for turning wheels aswell.

Also, check the car mirror - can you see the driver? If you cant, they cant see you. If the driver looks like they might be about to do something and you can see they havn't looked at you in your mirror, slow down (be prepared to stop) and toot your horn.

Rmember, the horn is to alert others to your presence; it is not a tool for "get outta my way fool"







thats what loud exhausts are for


(i joke, you should never actually try and force people out of your way, noisy intimidation or otherwise)
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Old 05-10-09, 05:04 PM   #30
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Default Re: That Filtering & Insurance Letter.

Thanks for the advice Alpine, copy-pasted already. I won't be doing too much filtering at the moment anywho. I travel in the country lanes for most of the time being in the deepest darkest parts of Devon. At least I don't have to worry about the dangers of overtaking with my little scooter
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