Criminal justice system fails family of motorcyclist

Brian and Charles, both experienced riders and good friends, were out for a run on 1st October 2012. The weather was fair and visibility good. Both riders were travelling East from Bo’ness to South Queensferry on the A904. Charles was ahead of Brian when suddenly both riders were confronted by a mini bus that had been travelling West but decided to execute a turn into a layby off the eastbound carriageway and across their path. It was obvious the lay-by could not be entered from the westbound carriageway in one turn and so the rear end of the minibus remained protruding on to the eastbound carriageway where Charles and Brian were correctly proceeding.Lay-by where minibus tried to turn

Charles had to take evasive action to avoid striking the minibus as it turned across his path and entered the layby. Brian did likewise but, by this point, the driver of the minibus may have started to reverse and Brian had to swerve suddenly around the minibus when it was across most of his carriageway. Unfortunately, in the emergency that unfolded, he then collided with Charles’ now stationary motorcycle at low speed but with tragic consequences. Brian fell from his motorbike, striking his head and died at the scene.

The police attended and as is mandatory in any fatal injury case, a report was submitted to the Procurator Fiscal. It was discovered the driver of the minibus had actually forgotten to drop off two school children and on realising they were on board decided to turn at a point where it was unsafe to do so. In fact, a few hundred metres further on down his own carriageway he could have entered a lay-by from the westbound lane and turned safely. Alarmingly, the driver of the school bus was not even insured but the company who owned the minibus did have the vehicle insured. Despite this, the PF decided not to prosecute the driver for careless or dangerous driving and not even for driving without insurance.

Brian was a family man and was particularly close to his daughter. She was left confused and upset by the decision of the PF not to prosecute the minibus driver for any offence relating to the death of her father. She wanted answers and couldn’t understand why the actions of the minibus driver didn’t constitute either dangerous or at the very least careless driving.

To get answers, Brian’s daughter sought out the help of Motorcycle Law Scotland. Although we couldn’t persuade the PF to re-consider matters, we did secure meetings with the PF as a way of assisting family members. Importantly, we were also able to help the family obtain compensation for their loss. We know there is no amount of money that compensates any family member for the loss of a loved one but if the PF couldn’t even charge the driver then surely the motor insurer should compensate the family for their loss.

Whilst the driver had no insurance to drive the mini-bus, there was a policy of insurance over the vehicle and we were able to reach agreement with the insurers that they would consider the case. We asked the motor insurers to admit liability as, after all, the driver created a hazard on the road by his negligent driving and in civil law that would entitle the victim of the negligent act (in this case Brian’s family) to compensation. Unfortunately, no such admission of liability was ever made and so we raised an Action in Court.

Lay-by where minibus turnedThroughout the court case, the insurance company denied liability and stated Brian had been at fault as he could have safely avoided the minibus across his carriageway. They argued that Brian had been riding too close to Charles and this was what had caused the accident. Three months before the case was due to be heard by a Judge, the Defender’s Solicitors agreed to settlement on behalf of their insurance clients. This was accepted and Brian’s family received the compensation they deserved after the disappointment of the refusal of the PF to charge the driver and then the denial of liability in the civil case that could only be resolved by litigation.

Brian’s family rightly remain upset and angered that the Procurator Fiscal did not prosecute the driver of the minibus for what they believe to have been both a dangerous and careless manoeuvre. Two experienced motorcyclists were presented with a hazard, the immediate avoidance of which resulted in the death of a rider.

Too often motorcyclists are put in a position where they are forced to avoid hazards caused by careless motorists. Perhaps it would have been different if the minibus driver had been faced with having to pull across the path of cars or larger vehicles. Would he have done so? We also cannot help but ask the question as to whether the PF would have dealt with the case differently had it been two cars that had collided when faced with such a hazard.

There is a presumption that motorcyclists can manoeuvre around hazards better than drivers of motor vehicles and perhaps even an expectation that they should. Motorcyclists are vulnerable road users and they recognise that fact every time they go out on their bikes. They take their safety seriously and it’s disgraceful a good life was lost yet no criminal charges were brought against the driver. Whilst the family were successful in the civil case with the help of our specialist service, they did have to take on a large insurance company and fight through the Court system. The Criminal Justice system, in our opinion, failed this rider and his family. If the minibus driver had continued on and turned safely, Brian would be here today enjoying life with his family.

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