Leslie O’Donnell v Lisa Smith and Royal and Sun Alliance

Motorcyclist hits vehicle in front – NO presumption of negligence.

Les O'Donnell RTC Locus - A82The Collision Circumstances

On 29th May 2016, Leslie O’Donnell and two friends, all from Northern Ireland, were travelling on their motorcycles from Omagh via Larne/Stranraer up to Oban when Leslie was involved in a serious RTC on the A82 just south of Tarbet. All the motorcyclists are very experienced. One is a serving Police Officer and headed up ‘BikeSafe’ courses in N.Ireland. Between the three, they have over 90 years riding experience.

Heading North and riding at between 55-60mph, they caught up with a Peugeot travelling at around 50mph. Leslie took up a position 50-60m behind the car. He considered overtaking as the road ahead was clear. However, the Peugeot driver became apprehensive when she saw the three motorcyclists in her mirror and she braked suddenly. Critically, she braked so hard that she performed an emergency stop.

Following behind, Leslie had to brake hard but running out of tarmac he looked for an exit route. He tried as best he could to go to his left but he hit the rear of the stationary car in front of him. He managed to crawl from the road onto the nearside verge. Seriously injured and in severe pain he was taken by emergency ambulance to the Royal Alexandra Hospital in Paisley.

Leslie was admitted into the high dependency ward where he was treated for fracture injuries to his right wrist and right knee. He remained in hospital for some time before returning home to N. Ireland.

Les O'Donnell RTC

The Insurer’s Panel Solicitor

Following the incident, Leslie contacted his insurance company, MCE and was referred to their panel Solicitor to handle his Personal Injury claim. Liability was disputed by the driver’s insurer, Royal and Sun Alliance. Their position was simple; Leslie had clearly run into the back of their insured’s vehicle, so he had to accept the lion’s share of responsibility. Settlement was proposed on an 80/20 split in favour of the driver. Leslie was told by his solicitor that he would have to accept such responsibility for the collision and any award of damages would be reduced by 80%.

Engaging Motorcycle Law Scotland

Furious with the advice from the appointed panel solicitor, Leslie told them to close his file. The driver stopped dead for no reason so how on earth could he be to blame? Leslie sought help from motorcycle experts White Dalton but as the incident had occurred in Scotland, White Dalton immediately referred Leslie to Motorcycle Law Scotland. Brenda Mitchell, Senior Partner at MLS and an advanced motorcyclist herself took on Leslie’s case. She agreed to fly over to Northern Ireland and meet with Leslie and his fellow motorcyclists to get a better understanding of what had actually happened on 29th May 2016.


Getting to know client and witnesses

Meeting and talking with clients and witnesses face to face is something that the Lawyers at Motorcycle Law Scotland do. Lawyers stand a better chance of winning a case if they do the ground work. Leslie had never met his panel solicitor and was not offered a meeting. Form filling and paper processing doesn’t work. Specialist motorcycling lawyers do things differently. It is this attention to detail at an early stage which makes the difference. Having reviewed all the evidence, MLS advised Leslie he had a good case and the only way ahead was to raise an action against the driver. She would need to explain why she came to a dead stop before Leslie collided with her.

The trial

The case proceeded to trial on the 20th and 21st November 2018. Leslie O’Donnell and his two witnesses gave evidence that prior to the collision Leslie was 50-60 m behind the car, an appropriate distance. The driver gave evidence that she performed an emergency stop. She had been apprehensive about the presence of the motorcyclists and braked too sharply.

The result

Having heard the evidence, the Sheriff found in favour of the Pursuer, Leslie O’Donnell. Sheriff McGowan stated in his Judgement that “there is no rule that the collision by one vehicle running into the back of another automatically gave rise to an inference of negligence on the part of the following driver.” It is always necessary to look at the whole circumstances of a collision.

He further considered that Leslie O’Donnell was riding his motorcycle at around 55mph and was 50-60m behind the vehicle in front. As such, he complied with the Highway Code in relation to stopping distances and the so called “two second rule”. A vehicle travelling at 55 mph will cover 50m in just under two seconds. In relation to speed and distance behind the defender’s car, the motorcyclist could not be faulted.

The accident was caused by the driver’s negligence and the defenders did not make out a case of part-fault.

Leslie O’Donnell v Lisa Smith and Royal and Sun Alliance Insurance PLC

Lessons

• The appointed panel solicitor failed to fully investigate the claim and appreciate the motorcyclist’s position.
• The panel solicitor was too keen to accept the insurer’s argument based on previously reported case law.
• The panel solicitor didn’t meet the individuals involved and thus would never have been able to successfully argue the case.
• If the driver’s position was always that she performed an emergency stop for no reason other than feeling apprehensive, this case should never have gone to trial and the insurers should have settled on full value basis at the start.
• Every case is fact sensitive. The driver stopped quickly. The motorcyclist had no time to react. He was faced with an emergency situation and was unable to bring his motorcycle to a halt. It cannot be inferred that because the motorcyclist is unable to stop that he must have been riding too close.

This is an example of why any motorcyclist involved in any collision should seek the help of expert motorcycling lawyers. Do not, under any circumstances, accept the appointment of a panel solicitor.

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