TOPICS General liability principles Contributory negligence Helmets Speed Filtering and overtaking Appeals. Evidence Motorcycle accidents abroad

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Randell York
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2 TOPICS General liability principles Contributory negligence Helmets Speed Filtering and overtaking Appeals Evidence Motorcycle accidents abroad

4 General liability principles Standard of an ordinary, skilful, average motorist: Bourhill v Young [1943] AC 92 Nettleship v Weston [1971] 2 QB 691 (Learner driver) Principles apply equally to all road users. However, some principles more relevant to motorcycle accidents.

5 Are motorcycles intrinsically more dangerous than other vehicles? No Hazardousness depends on the driver of the vehicle Motorcycles can divide opinion: Enthusiasts Freedom Thrill and speed Practicality Detractors Dangerous and loud Exposed to elements and risks An annoyance especially in rush hour traffic!

8 Motorcycle Helmets Highway Code Rule 83 On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. This does not apply to a follower of the Sikh religion while wearing a turban. Helmets MUST comply with the Regulations and they MUST be fastened securely. Riders and passengers of motor tricycles and quadricycles, also called quadbikes, should also wear a protective helmet. Before each journey check that your helmet visor is clean and in good condition. Rule 84 It is also advisable to wear eye protectors, which MUST comply with the Regulations. Scratched or poorly fitting eye protectors can limit your view when riding, particularly in bright sunshine and the hours of darkness. Consider wearing ear protection. Strong boots, gloves and suitable clothing may help to protect you if you are involved in a collision.

9 Motorcycle Helmets Highway Code

10 Cases DPP v Parker [2005] RTR 16 Rules apply to drivers of motorcycles manufactured with protective shells. O'Connell v Jackson [1972] 1 QB 27 C did not wear a helmet and sustained severe head injury. Injuries would have been less severe had a helmet been worn. C - 15% contrib. Capps v Miller [1989] 1 WLR 389 C wearing a crash helmet with straps UNFASTENED. Helmet fell off during collision. C - 10% contrib.

11 McCracken v Smith and others [2013] EWHC 3620 (QB) C pillion on stolen trials bike (not allowed on normal roads) which collided with another vehicle (D3). Being ridden too fast on a cycle path by D1 (aged 16) who did not have driving licence or insurance. No evidence C knew stolen, but did know uninsured. C did know would be driven fast and probably dangerously. Bike not designed for passengers. C and D1 not wearing a helmet. C sues D1, MIB and D3. C knew or ought to have known that driver of motorcycle had no insurance. D1 admits liability, D3 also found liable at trial. C - 45% contrib.

13 Speed Motorcycles (generally) have greater acceleration. Highway Code, rule 126 (Stopping Distances) remember, large vehicles and motorcycles need a greater distance to stop Overtaking Filtering Vehicles emerging from side roads Turning vehicles

14 Too fast? Powell v Hanson & Chin pulls out across path of (headlights and sounded horn!) at fault but 20% contrib as exceeding 30mph limit Henderson v Cooke [2002] EWCA Civ 1557 on main road and emerges in path of Night, unlit straight road 50% contrib as not riding "at a speed commensurate with the essential risks, of which he was well aware". He did not "take avoiding action, brake or conduct himself as any reasonable, sensible motor cyclist would do in such circumstances." This was partly attributable to the fact that he was found to be only just under the alcohol limit after the accident.

15 Still too fast, despite travelling below the speed limit Thomas v Kostanjevec [2004] EWCA Civ 1782 Fatal collision between and approached a downhill bend at 50mph (10mph below speed) and collided with could not have seen when began crossing. Agreed a reasonable spot for to cross the road. should have been able to safely stop or take evasive action if faced with a or other obstacle. 100% liable.

16 Speed and vehicles emerging from a side road Heaton v Herzog [2008] All ER (D) 125 emerges from a side road onto a main road. line of sight reduced by parked vehicles. As emerges onto side road, struck by travelling significantly above the speed limit - 75% at fault - 25% at fault Speed a clear factor in apportionment.

17 Speed and Causation Beasley v Alexander EWHC 2197 (QB) turned into the path of had been travelling too fast for the road conditions. However, would not have been able to avoid a serious collision even if travelling at an appropriate speed. - No contrib - 100% liable

19 Filtering Filtering not illegal. Permissible can involve risk. Highway Code Rule 88 (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 in traffic queues look out for pedestrians crossing between vehicles and vehicles emerging from junctions or changing lanes. Position yourself so that drivers in front can see you in their mirrors. Additionally, when filtering in slowmoving traffic, take care and keep your speed low.

20 Overtaking stationary traffic that overtakes a line of stationary traffic and collides with an emerging or turning vehicle will usually attract a high finding of contrib (66% to 80%)* The higher the speed the higher the level of contrib. A that collides with a pedestrian crossing queuing stationary traffic will usually be held 100% liable* Snow v Giddins (1969) (Court of Appeal) Pedestrian 25% contrib as marooned himself in the middle of the road. Hit by overtaking traffic. Motorcycle should have seen him and avoid avoided a collision. * fact sensitive

21 Powell v Moody (1966) approached 2 lines of stationary traffic and overtaking on offside. approaches side road intending to turn right. waved out by drivers of stationary vehicles. As inches out collides with - 80% liable - 20% liable Upheld by CoA

22 Overtaking on the left ( undertaking ) Will generally be the fault of the motorcyclist. Fagan v Jeffers [2005] EWCA Civ 360 traveling on inside of two lanes of stationary traffic collided with turning right across a gap created by Keep Clear markings on the carriageway. - 50% liable as failed to look out for turning traffic whilst undertaking a dangerous manoeuvre - 50% liable as should have appreciated there had been sufficient room for a two-wheeled vehicle to pass between the nearside vehicle and the kerb.

24 Appealing apportionment assessments Wells v Mutchmeats Limited [2006] EWCA Civ 963 Gage LJ quoted Brooke LJ in Plumb v Ayres It is very firmly established that this court will not interfere with a trial judge s apportionment of responsibility unless it can be shown that he erred in principle, or misapprehended the facts, or he is clearly shown to have been wrong

25 Burton v Evitt [2011] EWCA Civ 1378 travelling along a busy road, indicating and intending to turn right. Behind was a queue of cars. A 4x4 BMW ( )was directly behind him. The size and position of caused the rear view to be obscured. at a very slow speed began right turn turn. Collided with who was filtering past the traffic (45-50 mph) in the same direction. 1 st Instance - 2/3 at fault and 1/3 at fault. appealed on the basis that he had checked his mirrors twice.

26 Burton v Evitt [2011] EWCA Civ 1378 Court of Appeal speed amounted to negligence of a very high order and was a substantial cause of the accident. However, although had acted in a way that would ordinarily be expected of someone in those circumstances, he had been at fault to a limited extent in that as he could not see due to the size and position of he needed to take the elementary step of inching out. - 80% liable - 20% liable Court of Appeal - speed the main cause. 2/3 liability was too low.

27 Woodham v Turner [2012] EWCA Civ 375 (bus) on a side road. Intended to turn right onto main road. Traffic on main road queued in both directions. (tractor) had stopped on main road by junction allowing to pull out to her right. and filtered past stationary traffic. stopped behind continued onwards to filter. Collision between and as pulled out (not at 90 ) First instance at fault despite low speed, because moved into a gap that could not see whether clear. Should have moved out at 90 angle (would have has a clearer view) A collision was reasonably foreseeable. - 30% contrib

28 Woodham v Turner [2012] EWCA Civ 375 Court of Appeal as much to blame for the accident as 50% liability each The trial judge, more than once referred to s substantial contribution to the accident. The decision to hold to be significantly more culpable could not be supported. Decision was wrong. A claimant will not escape blame for disregarding the foreseeability of an accident.

30 Witness Statements Must always focus on trial Internal consistency Consistency with other statements Consistency with Police Reports and Medical Evidence Sufficient and appropriate detail In witness s own words

31 Electronic evidence SatNav (separate device or mobile phone or internal vehicle device) Helmet cameras / GoPro Mobile phone records/data All disclosable Consider evidential potency - may be very damaging

32 Reconstruction Consider a site visit? Reconstruction engineers Preferably a motor cyclist Who must visit the scene Any video from perspective of bike if possible Calculations And only expert evidence

33 CCTV Where from? Two directions? Timings? Enhancing? What will it show? Deriving times from it? Important to source the correct experts to assist.

35 Motorcycle accidents aboard RTA in EU Member State Direct action against EU Motor Insurer in English Courts Brussels Regulations and FBTO Schadeverzekeringen NV v Jack Odenbreit (CJEU) Art 4(1) Rome II law of the place of the harm will apply (Unless C and D are both from England/Wales English law will apply) Art 4(2) Some foreign laws offer addition protection for vulnerable road users (pedestrians, cyclists, motorcyclists, etc.) such as: France Loi Badinter Spain - Royal Decree 8/2004 The Netherlands art 185 WVW (Please ensure advice is taken from a lawyer specialising in the law in question)

36 Thank you. Any questions?

37 Contact Details Twitter Web: @IDenhamLaw and

38 Disclaimer Please note that the information and opinion contained in this presentation is strictly for information purposes only. Every reasonable effort is made to make the information and opinion accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author or the publisher. The information and opinion does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information and opinion in this article. If you are a solicitor or other legal professional, you should seek advice from Counsel on a formal basis.

Rules for Motorcyclists reading tasks to drive/highway code/highwaycode?sec=5rule 83

Rules for Motorcyclists reading tasks to drive/highway code/highwaycode?sec=5rule 83 Read the text about road safety for motorbike users, then answer the questions. On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet. This does