Liability in a filtering accident

[Gix]

Thought this might be useful for anyone fighting for a payout when the third party insurance wont accept liability….

Here is a copy of a letter written by Lyn W of the SV forum to her insurance company after an accident whilst filtering past traffic.
If you find yourself in a similar position then copy and edit this letter to suit your circumstances.

Accidents filtering and arguing liability with insurance companies:

In october I got knocked off the bike while filtering past a stationary queue of traffic. The only damage was to my bike and lid, no damage to him or his car. No witnesses so wasnt sure where I was liability wise. Kind of had a good solicitor but the third party wouldnt accept any blame and I attributed full blame to him.

Discussed with a colleague at work who gave me a copy of a letter he’d written in similar circumstances and I modified it for my own. It seems to have done the trick. After months of aruging over me filtering the submission of this letter has now seen a full admission of liability from the third party in the space of 10 days of sending it. It also won my colleague his case.

I apologise now, its long. But its thorough. Im posting it here as its going round various forums so that if anyone needs to use it as their template in an ongoing claim they are welcome to do so. I hope not too many people need it but it may help if you do.

letter sent:

quote:

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Ref: – Accident {date & time}

Further to our previous conversations I feel it may make matters clearer by reference to the Highway Code. I shall compare my road position and manoeuvre with that of the other driver. You will see it is abundantly clear that I was doing nothing wrong and that the driver is entirely to blame.

My Circumstances

I was slowly overtaking a stationary line of traffic.

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 Xs Circumstances

I now turn to Mr Xs driving manoeuvre.

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

Setting Off From Rest

This is governed by rule 135 of the General Rules for Using the Road. This is reproduced below:

135: 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.

[image]

Check the blind spot before moving off

It is quite clear that Mr X failed to undertake all, or more likely any, of the requirements given that my body was level with his drivers door when he made the manoeuvre.

Turning Right

This is governed by rule 155 of the Road Junction section for Using the Road. This is reproduced below:

155: Well before you turn right you should:

use your mirrors to make sure you know the position and movement of traffic behind you

give a right-turn signal

take up a position just left of the middle of the road or in the space marked for traffic turning right

leave room for other vehicles to pass on the left, if possible.

The first point to note, however, is that Mr X was not turning right as I approached. He was stationary in a queue of traffic for a red light. Clearly, Mr X does not have the patience to wait for lights to change so decided to take a different route by turning right. He chose to make this decision as I was level with him.

Again, however, the emphasis of the first two requirements is on observation and signalling. As set out above, Mr X failed these on both counts.

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

Conclusion

Mr X was stationary and I took all reasonable care to overtake a stationary vehicle. I checked before doing so, no right indicator on the car, no mirror checks carried out by Mr X, no wheel turns to indicate movement, and the car remained stationary so I proceeded to overtake.

Mr Xs lack of patience to wait in a queue to move clearly made him decide to take a different route. The issue here is he pulled out without mirror checks or signals whilst I was LEVEL with him by the drivers door. Not only is this driving without due care and attention, how Mr X could not HEAR my engine next to him, or be aware of movement right next to him is clearly indicative that he was not concentrating on what was going on around him.

Mr X is young and appears to only have had his licence a short while. But this does not excuse him for not making the proper checks – what if I were a pedestrian or pedal cyclist? More substantial injuries could have been caused by his inattention.

As shown above, I have followed the road rules clearly and exactly and am in no way responsible for this accident. If Mr X had made all the checks required as shown above or been paying attention he 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 his insurers..

regards etc etc etc

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Lyn received 100% compensation after writing this letter!

[imperialdata]

Interesting letter that. Think a lot of companies forget the rules of the road and often pay out the people who shout the loudest.

[Digger]

Noted.

[prezzo]

well worth noting you never know

[Lex]

There are some new laws about this, I read about it in Bike magazine

[Author]

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