When "fault" is not clear

Nicholas was riding a brand new motorcycle which he had collected from Saltire Motorcycles in Edinburgh earlier in the day.

He was riding West on the A71 approaching the junction which is both the entrance and exit to Dalmahoy Golf Club. The weather was overcast and the roads were wet. The speed limit is 50mph and Nicholas was riding at 45mph.

At the entrance to Dalmahoy Golf Club from the East, he noticed a coach in the filter lane used by vehicles travelling West to enter the golf club. The rear of the coach was facing him and the offside indicator of the coach was flashing. Nicholas slowed his motorcycle. He saw a man standing in the filter lane next to the front offside of the coach that was now blocking his view of the golf club exit. Nicholas passed the coach and saw a Skoda Octavia vehicle approaching the exit from the golf club. The Skoda Octavia was indicating right. Nicholas slowed his motorcycle to around 30mph.

Another hazard appeared at the junction with Dalmahoy Road opposite the entrance and exit to the golf club. There was a vehicle edging out but Nicholas could not see the intended course of travel as the driver of that vehicle was not indicating. Ahead on the Westbound carriageway of the A71 and around 6 car lengths ahead, Nicholas noticed a Ford Focus that seemed to be moving slowly but then immediately came to an unexpected stop. No brake lights were displayed as the driver of the Focus had just collided with a stationary Mazda indicating right to turn into Dalmahoy Road. The Focus driver hadn’t been paying attention to what was ahead of him. Nicholas couldn’t stop in time and around 3 seconds later hit the rear of the Focus in a quite separate collision. He fell from his brand new motorcycle and broke his nose.

The insurers of the Ford Focus driver said that Nicholas had failed to ride at a speed that would allow him to stop well within a distance he could see to be clear (Highway Code rule 126).

Nicholas thought otherwise. He had to take into account numerous hazards, was on a new motorcycle and unsure of the brakes in the wet. In any event, the Focus driver ploughed into the Mazda that was there to be seen and caused the sequence of events leading to Nicholas’s injury.

The reaction from the insurers of the Ford Focus was somewhat predictable.....

“This incident was a clear incident of your client failing to keep an adequate stopping distance from our insured’s vehicle. Had your client kept an appropriate stopping distance at the time, then he would no doubt have been able to stop in time rather than collide with the rear of our insured’s vehicle. Your client is clearly a victim of his own misfortune and we invite him to withdraw his claim against our insured at this time.”

Perhaps you agree?

Our response, however, was as follows:-

“Your insured created the hazard and did so by a negligent act. Our client was confronted with an emergency situation which forced him to brake aggressively. The sequence of the collisions is such that your insured collided with the vehicle in front, your insured failed to observe the position of the lead vehicle. We would refer, in particular, to the case of Dorning v Personal Representatives of Rigby. We do accept there may be a degree of contributory negligence and would be prepared to take instructions from our client to deal with this case on a split liability 75/25 in his favour.”

We believed this to be reasonable as collisions often occur through the negligence of both parties?

However, the outcome of the discussions pre-litigation resulted in the insurer refusing to consider settlement, taking the view their driver had been entirely blameless. A detailed statement was taken from the reporting officer who had his own observations and was, in fact, critical of the Focus Driver.

We raised the action in the Sheriff Court and the case was settled on a 50/50 basis three months after it was raised.

A fair and reasonable result?

The Law really comes down to common sense and, in this case, fault can be attributed to both the Focus Driver and the motorcyclist.

We backed the case. However, it’s not what we believe the outcome should be, it’s about predicting what a Sheriff would do. We were happy that 50/50 was a reasonable outcome.


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