Not the same but shows you a example of what insurers get up to, taken from the White Dalton site -
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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.
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