Ins Co. disputing my claim - advice please!

Hi Peeps!

Firstly a quick update from when I got knocked off my scooter in July. I'm doing well and the collar bone seems to have healed fine. The NHS have been great and all that is left to make sure I don't end up out of pocket for someone elses stupidity.

I got a letter (via my solicitor) from the car driver's ins co. They deny liability. I've formulated a responce by adapting "the filtering letter". Can anyone see anything that needs to be changed?


Here is what the insurance company say.

We have now investigated the matter and our insured was in the offside lane of 2. They attempted to pass an obstruction, moving to the right over the broken white lines. Your client was trying to overtake all vehicles, did not pay attention when overtaking stationary traffic, and hit our insured.

Here is what I say.

Dear Sirs,

Thank you for your letter dated 2nd September 2006.

I do not agree with the assesment that you present. Below I will detail the relevant circumstances of the accident and show that Mr Whyatt is completely at fault for the acident. Firstly I will describe my actions, and then I shall describe Mr Whyatt's.

I refer you to rule 71 of the Highway Code in the section "Rules for Motorcyclists" which reads as follows:

71: Manoeuvring. You should be aware of what is behind and to the sides before manoeuvring. Look behind you; use mirrors if they are fitted. When overtaking traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions.

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 (see for example rule 74 which give prohibitive instructions). 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 67 to 69. Again, I have reproduced these below.

67: On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. Helmets MUST comply with the Regulations and they MUST be fastened securely. It is also advisable to wear eye protectors, which MUST comply with the Regulations. Consider wearing ear protection. Strong boots, gloves and suitable clothing may help to protect you if you fall off.

68: You MUST NOT carry more than one pillion passenger and he/she MUST sit astride the machine on a proper seat and should keep both feet on the footrests.

69: Daylight riding. Make yourself as visible as possible from the side as well as the front and rear. You could wear a white or brightly coloured helmet. Wear fluorescent clothing or strips. Dipped headlights, even in good daylight, may also make you more conspicuous.

You will note that:

1. I had complied with rule 67 by wearing protective clothing, which again helped reduce the seriousness of the accident.

2. I had complied with rule 68.

3. I had complied with rule 69 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.

Mr Whyatt's Circumstances

Firstly, I would like to pay particular attention to the matter of my visibility, as Mr Whyatt experienced it on that day.

In your letter you state that I was overtaking all vehicles. This is true. I had taken a position just over to the right of the broken white lines to maintain a reasonable gap to the cars I was passing to my left. Because I was overtaking all traffic I was sufficiently far back from Mr Whyatt's car for sufficient time to be easily visible in Mr Whyatt's right hand wing mirror for an appreciable period of time. As stated previously, I had complied with rule 69 regading the use of dipped headlights. I was riding a brightly metallic painted scooter, and wearing a white shirt. The conditions on that day were clear daylight, with no mist, fog smoke/smog or precipitation. The stretch of road where the accident occured was straight, with no centre obstructions or street furniture to block his view. This means that Mr Whyatt had sufficient opportunity to notice my presence, trajectory and speed.

I now turn to Mr Whyatt's driving manoeuvre.

Highway code rule number 144 which I reproduce here is full.

144: Being overtaken. If a driver is trying to overtake you, maintain a steady course and speed, slowing down if necessary to let the vehicle pass. Never obstruct drivers who wish to pass. Speeding up or driving unpredictably while someone is overtaking you is dangerous. Drop back to maintain a two-second gap if someone overtakes and pulls into the gap in front of you.

I have emphasised the most relevant instructions.

Firstly, you state that Mr Whyatt moved accross the broken white lines. This obstructed my path. The above section states that drivers should never do this.

Secondly:

Assuming that Mr Whyatt was aware of my presence. The manouver that Mr Whyatt performed was unpredictable. If there was indeed an obstruction that Mr Whyatt needed to avoid, He should have stopped or slowed to let me complete my overtake before proceeding to move out of his lane. The question as to whether or not I was paying attention is irrelevant. To pull out and block my path was dangerous, precisely because an overtaking driver/rider may not see the blocking vehicle in time to avoid it. This is precisely what happened. I was at that point too close to Mr Whyatt's car to take evasive action.

Assuming that Mr Whyatt was not aware of my presence.

If Mr Whyatt was not aware of my presence, then he failed to perform basic observation. I refer you to part of rule 136 and the whole of rule 137 of the Highway Code which I again reproduce in full.

136: Once moving you should

* keep to the left, unless road signs or markings indicate otherwise. The exceptions are when you want to overtake, turn right or pass parked vehicles or pedestrians in the road
* keep well to the left on right-hand bends. This will improve your view of the road and help avoid the risk of colliding with traffic approaching from the opposite direction
* keep both hands on the wheel, where possible. This will help you to remain in full control of the vehicle at all times
* be aware of other vehicles especially cycles and motorcycles. These are more difficult to see than larger vehicles and their riders are particularly vulnerable. Give them plenty of room, especially if you are driving a long vehicle or towing a trailer
* select a lower gear before you reach a long downhill slope. This will help to control your speed
* when towing, remember the extra length will affect overtaking and manoeuvring. The extra weight will also affect the braking and acceleration.

Mirrors

137: All mirrors should be used effectively throughout your journey. You should

* use your mirrors frequently so that you always know what is behind and to each side of you
* use them in good time before you signal or change direction or speed
* be aware that mirrors do not cover all areas and there will be blind spots. You will need to look round and check.


Given that I have already established that Mr Whyatt had ample opportunity to see me and he still failed to do so, then he is either negligent or insufficiently capable of performing adequate observation.

Conclusion

Accordingly, the only verdict which can be reached from the above analysis of Mr Whyatt's manoeuvre is that it was undertaken without sufficient care and attention to myself and other road users, either by poor/negligent observation, or a disregard for Highway Code rule 144.

Your's faithfully,

John Richardson

[northwind]

I'd have thought that your insurance company or solicitor should be dealing with this?

If not... Was the driver stationary or moving? (I mean, before the maneuvre that hit you). Your letter and theirs seems to contradict- they say "when overtaking stationary traffic", you say "He should have slowed or stopped".

Not exactly how I'd have written it, I don't consider the "I have complied with" parts about protective clothing etc to be relevant- it's like saying "I've complied with the law by having a driving licence". So I'd lose the bit about 67 and 68. 69 is definately relevant though. (huh huh huh) I'd crop out all the irrelevant parts of 136 about keeping left on bends, hands on wheel, etc. Every part of the letter should have a purpose, excess text makes it look like you're unclear what's relevant and what's not, which is not a good message to send IMO.

I'd also say that this: "Assuming that Mr Whyatt was aware of my presence. The manouver that Mr Whyatt performed was unpredictable. If there was indeed an obstruction that Mr Whyatt needed to avoid, He should have stopped or slowed to let me complete my overtake before proceeding to move out of his lane. The question as to whether or not I was paying attention is irrelevant. To pull out and block my path was dangerous, precisely because an overtaking driver/rider may not see the blocking vehicle in time to avoid it. This is precisely what happened. I was at that point too close to Mr Whyatt's car to take evasive action. "

is the most important point, I'd get it front and centre. It's not your job to predict if other road users will pull out on you- it's theirs to make sure the way is clear for his maneuvre. If he pulled out on you, it's his blame, your conduct's irrelevant as long as it was legal (and even if illegal, wouldn;t neccesarily cloud the issue)

[Red ones]

I have to disagree with Northy. I think the part about clothing etc relevant as it contributed to reducing the level of injury and demonstrates conscious decision making in reducing risk. I would, however, substitute "light coloured top" for "white shirt" as "white shirt" suggests to me that you were not wearing a protective jacket.

I'm not sure about this, but I've got something in my head that says you shouldn't cross a whilte line without indication. I'm assuming this idiot didn't indicate, so providing I didn't dream that rule up it should help.

[Stu]

Originally Posted by Flamin_Squirrel

I'm not sure about this, but I've got something in my head that says you shouldn't cross a White line without indication. I'm assuming this idiot didn't indicate, so providing I didn't dream that rule up it should help.

I would seriously doubt that such a rule exists. There is probably something else that would suggest he should have indicated and if you can find it, it could be worthwhile adding.

Agree with Northy about deleting the irrelevant.

The one thing I would say about these matters is that compliance with the Highway Code seems to count for relatively little - it's all about case law. A few years ago i was involved in a similar accident (guy turned right into a driveway while I was filtering) where I had been riding textbook and the other guy had failed to do mirror checks, indicate, be positioned correctly, etc - didn't seem to make much of a difference to the outcome.

Personally I'd be looking for help from a solicitor with this kind of stuff, and preferabley one who does a lot of work on motorbike claims - do you have legal cover via your insurance policy? Alternatively I've heard good things about White Dalton.

good luck anyway!

Thanks for the help so far! Don't worry, I have a firm of specialist solicitors working for me. They asked me for a rebuke of the other party's claim and I want to do the best job possible.

I agree with you Northy, that the stuff about rule 144 should be right up there, but I think the stuff about riding should in there too.

Can anyone see any holes in my argument? I think that the insurance company shot themselves in the foot with their letter. They've admitted that the chap pulled out, and confirmed my position and therefore my visibility. Should be cut and dry?

What happened with your case Ness?

[Stingo]

Originally Posted by Stu

I would seriously doubt that such a rule exists. There is probably something else that would suggest he should have indicated and if you can find it, it could be worthwhile adding.

Agree with Northy about deleting the irrelevant.

It's been a while since I read the highway code from cover to cover but don't we still doesn't the mantra 'mirror signal manouevre' still exist?

Looks good though - I reckon his solicitor is trying it on...

hmm, my case probably isn't the best example - I got given a court date for while I was overseas and was refused an ajournment until when I got back. Being just before Xmas would have cost me c. 1.5K to get back from Australia for it, so I ended up having to grit my teeth and forfeit the case.

But before that the solicitor reckoned I should have got 75-100% of the blame apportioned to the other party.

Third party's solicitor is trying it on, they all do this. After a driver turned across my path and hit me on my pushbike they denied liability but I persevered via my solicitor and it was settled 60/40 in my favour, took 2 years to settle though. Its their job to string you along.