Biking court cases: Grace vs Tanner

[Kylie]

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?

Originally Posted by Kylie

Or is it time to contact some biking specific solicitors?

Yes - at least find out their opinion.

[Kylie]

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.

[mattSV]

These guys have very good rep:-

White Dalton

Originally Posted by mattSV

These guys have very good rep:-

White Dalton

Maybe Ed can help too...

(He's never around when you need him is he )

.

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?

Originally Posted by mattSV

These guys have very good rep:-

White Dalton

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

Originally Posted by Kylie in previous thread

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