Odds staked against injured motorcyclist, but justice prevails

Mulvanny Collision Locus

Collision, Locus, Circumstances.

On the 23rd April 2016, James was riding his white Triumph Daytona 675R motorcycle behind his father as they headed south on the A822. which is subject to a 60 mph speed limit. His father was leading and overtook a Land Rover Discovery 2 on an undulating section of road. James followed suit before returning to his lane.

His father noticed a stationary car sitting on the opposing carriageway at the brow of a hill indicating to turn right. He immediately looked in his mirror, fearing that the car might not see James following behind him. His fears were realised as the car suddenly turned right across James’ path.

Following impact, James was thrown 90 meters from his motorcycle before landing on the road. His father saw debris flying through the air and turned his motorcycle around to go back to his son.

Extent and Impact of Injuries.

James was taken by air ambulance to Ninewells hospital, Dundee and treated for a multitude of injuries including skull and neck fractures, fractured ankles and ribs, shoulder dislocation, internal organ lacerations and a brachial plexus injury.

After multiple surgeries over 3 weeks in hospital, he was discharged. Despite making encouraging progress, he required extensive ongoing medical treatment as a result of the collision. Due to the extent of his head injury, James could not recall the incident with his last memory being a lunch stop over an hour before the collision.

The severity of his injuries left James unable to work yet despite the hardship sustained, his remarkable determination shone through as he enrolled for a college course. His resilience eventually allowed him to return to his previous employment after 14 months off.

The Claim Process.

Whilst lying in his hospital bed, Police Officers attended and charged James with 'dangerous driving' on the basis he had been riding at excessive speed close to a junction. James pled ‘not guilty’ to that charge but did plead to a charge of ‘careless driving.’ However, the conviction did not prevent James from pursuing a civil action to recover compensation for his life-changing injuries.

Motorcycle Law Scotland intimated a claim to the driver’s insurers, but liability was denied. They refused to fund rehabilitation costs and tried to buy James off with a ‘nuisance value’ offer. The driver argued that James had not been visible due to the blind summit and that excessive speed on James’ part had been the sole cause of the collision.

Although James had been travelling at more than the speed limit, he had been in his own carriageway at the point of impact and, in all probability, his speed on impact would have been around 67 mph. We argued that he had been there to be seen and his speed had not been the only issue contributing to the collision. Any driver turning across a carriageway must look out for oncoming traffic and the sight lines available to the driver, even allowing for James’ speed, were such that the driver should have waited until James had passed before turning. Faced with a denial of liability and a defence of excessive speed, we took the decision that James deserved our backing and so we raised an action in the Court of Session.

The case was hard fought with the defenders suggesting we abandon the action and take a ‘nuisance value’ offer. We pushed on and the turning point came when we instructed a collision investigation expert to carry out a full reconstruction. The reconstruction was meticulously planned out and we even sourced the exact model of Land Rover - a Discovery 2, that James had overtaken immediately prior to the collision. We hired the Discovery and then instructed a former police motorcycle instructor to ride a sports motorcycle and recreate the immediate pre-collision circumstances and importantly the sight lines and positioning of vehicles that would have been visible to the driver at the time.

This video shows the approach to the locus and brow of the hill where the incident occured. 

This reconstruction video shows a motorcyclist carrying out a similar manoeuvre to that of Mr Mulvanny. Watch closely as you can see the motorcyclist at all times even in the dip.

The video evidence revealed that James should have been seen by the driver at a point prior to the driver turning. The driver should have observed James and reacted accordingly by waiting for him to pass safely.

With the video evidence to hand, we retraced our steps and went back to the witness who had been driving the Discovery at the time. We had to ask him more questions. This exercise involved one of our motorcycling solicitors travelling to Northern Ireland to meet with the witness in person. Some things can’t be done over the phone and this witness evidence was crucial. We lodged the video evidence with the Court.

Getting the right result.

With just weeks to go until the final court hearing, we met with the opposing side at a Pre-Trial meeting. Despite his conviction for careless driving, we secured a six-figure settlement for James. This was not on a ‘full value’ basis as it was agreed James had contributed to the collision by overtaking at or near a blind summit on approach to a junction at speed.

However, we argued that the driver had been negligent because the video evidence revealed that James would have been visible to him. The driver should have waited, or knowing there was a dip in the road, he should have executed his turn quickly.

Why are Motorcycle Law Scotland different?

Our case had been on the cusp of slipping away until we sourced a Land Rover Discovery 2 and carefully reconstructed the collision circumstances. James’ case is a prime example of how we distinguish ourselves from panel solicitors. Faced with a motorcyclist with a conviction for careless driving, most solicitors wouldn’t have taken on James’ case. Our ‘above and beyond’ approach is applied across the board. Often collisions are caused by the fault and negligence of both parties and if that is the case, compensation will be awarded subject to a deduction to represent part-fault.

At the end his case James had this to say:

"Brenda came to see me in the hospital and explained the process. The insurance company wasn't at all interested in the case but Brenda and her team fought hard to secure a settlement. Settlement was a long 3 years due to operations and lasting injuries. I was always offered advice and encouragement when needed and was kept in the loop about the massive amount of work carried out in the background. I would highly recommend MLS. Thank you again."

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