Insurance advice please - Settle 50/50???

[GingerWizard86]

Hi there guys and gals,

As you may have read, I was involved in an incident at a junction back in March in which I suffered some fairly nasty injuries.

The legal side of things are starting to warm up a bit and I have received an offer of an 80/20 settlement in favour of the other party, both my insurers and solicitor thankfully agree that it's a ridiculous offer and as such I have instructed them to make a counter offer of 80/20 in my favour

My solicitor anticipates that the case will be settled out of court on a 50/50 basis but in light of the evidence I really do not feel that I should be shouldering half of the blame

At the time of the accident I was filtering very slow moving traffic on the A36 Wellsway in Bath and the driver come out from Shakespere Avenue on the left. None of the traffic was large or high sided and I would have been highly visible (brilliant white helmet and lights on).

I do feel that the police dealing with the incident took a very unsympathetic stance on this accident and as such a very very vague accident report was produced. They failed to include that the car was un-roadworthy. The tyres on the front of it were basically slick with less than 1mm of tread left on them. I do have pictorial evidence of this.

I have a witness report that gives good evidence of my speed (10 mph) and good evidence of negligence on the other parties behalf. The witness makes good observations that the driver of the other vehicle failed to make correct observations before making their maneuver, they didn't even look right.

Now I know that the maneuver I was making would be considered a high risk manuver but I calculated the risk and was well within the guidelines of the law and the highway code and the other party failed to perform the most basic of checks to make sure that it was safe for them to do so.

How can I be held half to blame when:

The car was un-roadworthy due to slick rubber (shouldn't have been on the road and if it wasn't the accident would not have happened)

They hit me.

The completely failed to look in my direction (they would have seen me if they had)

I was using the road legally and within the highway code.

I had the right of way.

I know the way that legal costs insurers work and I also know that the judgement will be made on precedents set in the 60's 70's and 80's which is absolutely ridiculous

Any advice would be highly appreciated.

Thanks,

GW

[Snowy]

I don't feel qualified to give any real advice - this needs to come from your solicitors. I would have a few comments though and it may not be nice to hear. You say that they should have seen you and that there was nothing obstructing their view. In that case the reverse applies in that you should have seen them. I assume there's a junction sign, there would have to have been a gap in the traffic so you should have known there was a strong possibility of a car coming out of that junction. You're the one filtering alongside the outside of a row of slow moving traffic - personally I would think the onus is on you to make sure its safe to do so.

Almost certainly the car coming out would have been waved on by a driver of a vehicle heading in the same direction as yourself. Consequently in 99% of cases the driver coming out of the turning and moving right would be 100% looking left not right. The 1% who would look right would be a biker.

The bald tread on the tyre would not in any material way have affected the accident and won't be considered for any insurance settlement.

Those are my thoughts - as said you will need to take professional advice.

[GingerWizard86]

I can see your points, though do disagree somewhat.

That goes contrary to what is said in the highway code.

[Snowy]

I can see your points, though do disagree somewhat.

That goes contrary to what is said in the highway code.

I haven't read the Highway Code for over 30 years. Which part is against it?

[Dabz]

I tend to agree with Snowy I'm afraid, so I can understand the proposed insurance settlement. That's not to say I'm not sympathetic to your injuries and case though, good luck

[GingerWizard86]

172

The approach to a junction may have a ‘Give Way’ sign or a triangle marked on the road. You MUST give way to traffic on the main road when emerging from a junction with broken white lines across the road.
Laws RTA 1988 sect 36 & TSRGD regs 10(1),16(1) & 25

look all around before emerging. Do not cross or join a road until there is a gap large enough for you to do so safely.

not assume, when waiting at a junction, that a vehicle coming from the right and signalling left will actually turn. Wait and make sure

etc. etc.

MUST is a legal requirement. I had right of way.

As I have said in the OP I did calculate the risk of making the maneuver, traffic was moving slowly. I guess no one can see it from my eyes as I did at the time.

Still don't think its fair to make a settlement based on a verdict given nearly 50 years ago.

All evidence should be taken into account.

[Snowy]

172

The approach to a junction may have a ‘Give Way’ sign or a triangle marked on the road. You MUST give way to traffic on the main road when emerging from a junction with broken white lines across the road.
Laws RTA 1988 sect 36 & TSRGD regs 10(1),16(1) & 25

look all around before emerging. Do not cross or join a road until there is a gap large enough for you to do so safely.

not assume, when waiting at a junction, that a vehicle coming from the right and signalling left will actually turn. Wait and make sure

etc. etc.

MUST is a legal requirement. I had right of way.

As I have said in the OP I did calculate the risk of making the maneuver, traffic was moving slowly. I guess no one can see it from my eyes as I did at the time.

Still don't think its fair to make a settlement based on a verdict given nearly 50 years ago.

All evidence should be taken into account.

I'm playing devil's advocate here to an extent, but if you look at it from a different view than your own:

The driver could argue that they were giving way as far as the junction was concerned - they were waved out by a vehicle that was allowing them out who had probably seen there was a gap in the oncoming traffic. The driver letting the vehicle out would not be looking in their mirrors for you. Yes, they should have looked both ways - maybe that's why they have offered a part fault settlement.

There was a gap large enough for them to pull out in - as allowed for by the oncoming vehicle.

Yes, they shouldn't assume there wouldn't have been a vehicle(you) coming from the right. As indeed you shouldn't have assumed there wouldn't be a vehicle coming out of the left.

You said in your OP it was a high risk manoeuvre filtering as you were. Other than be riding at 10mph what did you do to reduce those high risks?

Given what you've said, if I was offered a 50/50 under the same circumstances myself I would bite their hands off. Sorry, I'm just trying to give you an alternative view.

[DaytonaDog]

Andy

Sent you a message on FB regarding the tyres. Essentially the tyres thing is a red herring as it didn't have a causal effect upon the accident. Yes the car should not have been on the road, but the bald tyres were not the cause of the accident. You would have to prove that it contributed to the accident, (other than the car shouldn't have been on the road), for it to have relevance towards the claim.

In my experience, precedents that were set in courts of law, many years ago, without being changed is because they have stood up to legal challenges and debates over the preceeding years. You may disagree with the precedents set, but that is what the legal profession have to use as guidance when making a legal judgement so bear that in mind when thinking about your decision. Remember that article in Ride magazine i showed you, which covered exactly your situation, and if I remember correctly, suggested that in such circumstances the courts have held the responsibility to be 50/50. I can't remember the name of the case were this precedent was set, but I'll try and find the article again, but no doubt your solicitors, if they know their stuff, should be aware of this case.

Without seeing the documentation in relation to this accident, its difficult to give you any definitive advice. I would suggest having a very very long chat with your solicitor about it, as ultimately they are aware of all the facts/evidence etc etc, and have experience of dealing with similar situations and so would know what the usual outcomes are in these type of cases.

Give us a call if you want to discuss it further buddy.

[Senna(Dan)]

Andy have you given SMIDSY a ring.
They will not charge you for advice and may even be able to find a case where the driver was proved responsible.
I know you don't want to mess it up with your insurance company, but they may know more than your current solicitors.

[Conehead]

Sorry to say this but I do agree with Snowy, however if it was me I wouldnt. What I mean by this is that you have to stand back and look at it from a third parties view. I think you would be lucky to get anything better than 50/50.

Soory again for the crap advice but insurance companies and solicitors have a big workload and they would rather settle 50/50 than fight an expensive case where the probability is very high that the judge would just say 50/50.

Good luck in your fight though and personally I hope you get more but dont hold your breath.

[wheelers]

how trustworthy are witnesses?? my eldest was involved in an accident which has left him paralysed. the witness statements say the bike was travelling at speed, no mention of exactly what speed , in short CPS have thrown it out as cant conclude. 6 months later and his solicitor has involved a barrister, the barrister now has the witness statements, all say, the biker was in black leathers with a black helmet and black bike. our eldest was in a grey top, white , red and blue helmet with a red and black rucksack on a white 675 triumph. OH and a biker on a black stopped to see if he was Ok!!!

[Col]

Snowy suggests the vehicle may have been 'waved' out ...from many moons ago and I haven't looked to find it but I seem to remember that the onus is still on the emerging vehicle driver to ensure it is safe for them to join the main road irrespective of if they are 'waved' out by another driver..........the fact is,and remains, that they did not exhibit due care towards safety when joining the main road by their failure to see you.

The illegal tyre [s] are still important irrespective of what DD states as this is an important fact to make known to the judge whose opinion is being asked in this case. A vehicle with illegal tyres is NOT allowed on the road even though the illegality of the tyres were not causative in the collision...the simple fact remains it was on the road illegally and I would argue actually not insured because of this illegality.

Opinion is what matters and the more evidence to sway the judges opinion in your favour the better your case. 50/50 no ..go over what actual facts and evidence you have then go back to your solly to discuss

[Jed]

As I understand it accidents while filtering can be a bit of a legal minefield. There is a section in RIDE magazine giving legal advice by solicitors who are also bikers. The guy's name is Andrew Dalton of White Dalton Motorcycle Solicitors contact whitedalton.co.uk or 0800 7836191. It would be worth a call to them; or as you already have legal representation maybe urge your current solictor to contact them. I have no personal experience of them but they talk a lot of sense in the column they produce for the mag. I hope this helps.

[QB1]

Hi GW

Really sorry to hear about your crash.

What did your solicitor say when you asked him just what you've posted?

[Julie_S]

Stupid question, the junction the car came out of, was it a normal stop if not clear or solid white line, therfore compulsory stop before proceeding? Solid line is a good as a red traffic light in the eyes of the law isn't it?