Legal Advice Q&A

The following questions have been asked by motorcyclists across Scotland. We feel it is beneficial to share these with others and include the answers which we hope provide good information in a variety of different circumstances.


Road Traffic

Motorcycle Accident in a foreign country

Q.  I was involved in a motorcycle accident in France when a French motorist pulled out in front of me at a junction. This happened two days into my trip round Europe with my mates. I'm now back in Scotland and the French police have supplied me with an accident report but it's French! I am badly injured but how do I claim for the injuries and damage to my motorcycle and kit if the accident took place abroad?

A. The good news is you don’t need to take a crash course in French nor do you need to instruct a French lawyer.  Under European Law, victims of road traffic accidents in European member states can have their claim dealt with in their own country and in their own language. The starting point is the report you have from the French Police. You should have the registration number of the vehicle and the identity of the insurance company who issued the policy. If you only have the registration number, you can enquire at the information centre at the Motor Insurers Bureau (MIB) at information@MIB.org.uk for details of the insurance company or name and address of the owner.

If you have details of the insurance company, then by going into the MIB web-site you can locate the UK representative of the foreign insurer. You can then intimate your claim for all losses to include your damaged bike, recovery of your bike, damaged kit, personal injury,  expenses and any loss of income. Whilst your claim can be dealt with in the UK, it’s the Law of France that applies to liability and the assessment of damages. Never delay in putting forward a claim as different time limits apply to member states. Your solicitor will be able to advise you on any differences that apply… Further good news is that if the agents of the foreign insurance company fail to respond or fail to provide a “reasoned response” the Motor Insurers Bureau can intervene on your behalf.
 

Pedestrians, third party cover and foreign tourists

Q. I was riding in Edinburgh City Centre. Traffic was stationary and backed up so I decided to filter along the outside passing cars and vans at about 15 mph. As I passed a van in the queue of traffic, an American tourist stepped out in front of the van and into my path. He was looking to his left and didn't see me approach. We were both injured but I came off my bike badly and my injuries are worse than his and my bike is in bits. I am only insured third party so how do I go about getting compensation for my injuries and wrecked bike?

A. The pedestrian was negligent in that he attempted to cross the road in front of you. He did not look for oncoming traffic. You, as the filtering motorcyclist, have a duty to be able to stop for foreseeable hazards and that includes pedestrians looking the wrong way or doing something stupid. I assume that as you were both injured the Police attended the accident scene so they will have statements from all parties involved and any witnesses. The problem here is that you do not know whether or not the pedestrian was insured and you need that information to stand a reasonable chance of getting compensation for your damaged bike, injuries and other losses. As he is an American tourist, he might well have travel insurance which will cover him for third-party risks. The police report will identify the name of the American tourist and his home address. It's a matter of contacting him, preferably through a solicitor, setting out your claim for compensation for injuries and damage to your bike and asking him to contact his insurance company. If he has insurance, your solicitor can take matters up with his insurance company on your behalf. It is likely that any claim for compensation for you will be reduced to take into account your own negligence but I would argue that as the daft tourist appeared out in front of you looking the wrong way you shouldn’t accept any blame. Each case will turn on its own facts but you should be successful if an insurance company is identified and it’s certainly worth your while as you have been badly injured and need your bike repaired.


Filtering accident

What's the legal position with regard to an accident whilst filtering. Can I claim? 

Q. Traffic was stationary so I decided to filter up the outside of the queue doing about 10 to 15 mph. I still managed to keep within my lane. A driver in the queue decided to turn right into an unmarked junction. He didn't indicate and pulled right in front of me knocking me off my bike. Can I claim for damages even though I was filtering? 

A. There is a lot of confusion over filtering and each case is fact sensitive which is why I have dedicated a page to filtering on this website. Filtering is a perfectly legal way to make safe progress in slow-moving or stationary traffic. As a general rule of thumb, filtering is a manoeuvre carried out at less than 15 mph. The highway code (rule 211) reminds drivers to look out for motorcyclists filtering through traffic and warns motorists to be especially aware of filtering motorcyclists when turning right across or in a line of slow-moving or stationary traffic. Looking at the circumstances of the accident you describe, my view is you will establish fault on the part of the car driver as after all he is obliged to look in his mirrors and signal before turning right. You are entitled to filter in the way you describe to make progress. You may be found partly to blame because you should have anticipated car drivers in the queue doing something stupid and turning into the junction you were approaching on your right. However, in your case, I would argue there was no fault on your part as after all the driver did not signal his intention so how could you have anticipated his intention to turn right.
 

Indication and Filtering

Q. I wonder if you could help me. I got knocked off my scooter by a van turning right. I was filtering past him and he suddenly turned right without indicating and took me out. It's my word against the van driver as there are no witnesses. The insurance are saying that this is a disputed liablilty claim - do you think that is the best I can hope for?

A. Filtering is a perfectly legal manoeuvre and is a means to make safe progress in slow moving or stationary traffic. Highway Code rule 211 advises motorists to look out for filtering motorcyclists or cyclists.
Before executing a right turn, the motorist/van driver is obliged to indicate and to check the indication has been clearly seen and understood by other road users.
From what you say, liability rests with the van driver as he had a duty to check for a filtering motorcyclist before turning right. He also has a duty to indicate right and ensure that signal has been seen and understood by you.
I cannot see why there is a dispute on liability. You do not necessarily need independent witnesses but without them it will come down to your word against his. The van driver may have told a different story to his insurance company and may have said he was indicating.
That evidence won't stack up. If he said he indicated, then that indication has not been understood by you and he should have recognised that by your road position which he is obliged to observe before turning right. There is a very well-known case called Sorrie v Robertson 1944 and is still good law. A motorist's duty is not confined to making a signal as he must ensure that signal has been understood.
 

Mud on the road

Q. Is it reasonably expected for there to be mud on roads left from farming tractors? I have called one of the estates near Queensferry after I hit a fist sized clod on a corner. Would a motorcycle group be wasting their time asking these large estates to be more careful. I must note however that there is a fair bit of construction for the new bridge around, but these contractors employ road cleaners and I have yet to see any real risks result from their work, so it is possible.

A. A Motorcycle group would not be wasting their time contacting managers of estates if they have encountered mud on the public highway (road) carried from fields belonging to the estate. 
Under the Roads Scotland Act, drivers who fail to remove the farm debris from a road as soon as practicable are committing an offence.
By contacting the Estate Manager if problems have been encountered you are highlighting an issue of concern and are placing the Estate on notice that they should put in place a reasonable system of inspection, cleaning and/ or erecting signage. Such reasonable measures will avoid accident and injury. The following links from NFU and Country File.com are helpful.

http://www.nfuonline.com/Our-work/Farm-safety/Guidance/Mud-on-the-road/

http://www.countryfile.com/news/insurance-firms-highlight-dangers-muddy-roads

 

Medical Claims

Medical examination of motorcycle injuries? 

Q. I was knocked off my bike around 12 weeks ago and spent two weeks in hospital. I broke my leg in three places which needed to be pinned and plated and also sustained a really nasty injury to my right arm. I am back home now but struggling financially and have to rely on my wife to help me with daily tasks like washing and dressing. I have legal cover with my insurance policy and completed a claims pack sent to me by the solicitor dealing with my case. I then received a call from my solicitor to arrange a medical examination. When I told him I am still recovering and have not yet been able to get back to work, he said he wouldn’t go ahead with any report. It seems like the medical examination will be when I've fully recovered. Is this normal practice? I don't understand... I would have thought the medical examination would have been right at the start.

A. Your injuries are significant and your solicitor is right to delay any instruction of a medical report until you have either made a full recovery or it is considered necessary to instruct a report on an interim basis as the recovery period might be lengthy. In your case, an Orthopaedic Surgeon should be instructed and he or she can view all the medical records and X-Rays and provide the solicitor with an opinion. I do hope your solicitor has arranged to see you as the injuries are severe and the least you can expect is a meeting to discuss any rehabilitation needs to help you recover such as physiotherapy and assistance around the house. You don’t need to make a full recovery before a medical report is instructed and an Orthopaedic Surgeon will often provide a preliminary report suggesting a further report be instructed at a later date. The preliminary report can be used to obtain an interim payment to ease any financial pressure caused by not being able to work. I hope this answers your question but I do think you should arrange to see your solicitor as your case cannot be dealt with by phone calls and claims packs. The serious nature of your injuries requires serious legal input and a meeting with your solicitor is imperative.
 

Possessions

Theft of Bike and motorcycle gear- what can I recover?

Q. Thieves broke into my shed and nicked my bike. Unfortunately, they also took two pairs of leathers, my helmet and a nearly new jacket. While I am happy with what they have offered me for the bike, the insurance company say they are not liable for the shed contents i.e. my gear. I stand to lose around £2400. What I do?

A. Under the terms of your motor insurance policy, your insurers have paid out for the theft of your motorcycle. They are not obliged to pay anything in respect of the stolen motorcycle kit unless as part of your motor insurance policy you had added protection against lost, damaged or stolen motorcycle protective clothing and helmet. I don’t have such added protection because I don’t see the need to pay any extra for the cover when I have a policy of household contents insurance which covers me for  “personal belongings”. If you have household contents insurance then you should make a claim under that policy for the two pairs of leathers, helmet and jacket. Claims for personal belongings are often restricted to the amount specified by you in the policy schedule so always ensure that you list individual items such as your helmet, jacket , boots , gloves and helmet. The claim may be subject to an excess but you should be in a position to recover your losses. Most insurance companies will pay for the replacement cost but always check the policy wording carefully.
 

Buying bikes on ebay, stolen bikes, the DVLA and your legal rights.

Q. 'I bought a bike in bits via Ebay and after spending a year re-building it, the DVLA have told me that a previous owner reported it stolen and I'm now waiting to hear from somebody's insurance company because they paid out the previous owner. I can't trace the guy I bought it from, I've got no proof of purchase and to be honest I'm half expecting a visit from the cops! 'How can I sort this out? I just want to register the bike as mine after all the graft I put into it and ride it.'

A. Unfortunately the news is not good! Under the Sale of Goods Act 1979 and the Latin maxim – “nemo dat quoad non habet”, the buyer acquires no better title to the goods than the seller had. The Ebay seller cannot have title to the motorcycle as it was presumably acquired without the owner's consent and so he cannot pass title to you, the purchaser. There are limited exceptions to this rule but I don't think any of them would apply to your case. Further, when an insurance company pays out on a claim for a stolen vehicle, the insured effectively signs over their rights and remedies to the insurance company. In your case, this means if the motorcycle is later recovered rather than it being returned to the original owner, the insurers take on the rights to dispose of the vehicle as they see fit. As you have no title to the bike, you certainly won’t be able to register it. As it’s a stolen motorcycle, the police will have the right to seize the vehicle. You can however sue the unauthorised seller but that person was probably a rogue and has disappeared as you suggest. I know it's a bit late now but before buying a used motorcycle, at the very least insist upon the registration document (V5) and make sure the person selling the vehicle is in fact the registered keeper. For a small fee, you can carry out a motorcycle check on a used bike. I've attached a link to 'CheckABike a recently launched service specifically tailored for UK Motorcycle buyers.


Compensation Claims

With Legal Expense Insurance

Q.  I'm looking to save money on my insurance policy by taking off the “add-ons". I've noticed I have legal expense cover which cost me about £25. Is it safe to take this off as my insurance company keeps telling me of the benefits of having the extra cover.  I am just looking to save myself money as insurance premiums keep rising. 

A. You are safe as houses to delete this cover; it’s an extra and it’s certainly not compulsory, so save yourself some money and take off the legal expense cover. Remember, this is legal expense cover for you if you have an accident that’s not your fault and need the services of a lawyer to claim for your own loss and injuries. It’s not cover for you if you cause an accident and god forbid injure someone. That’s why insurance is compulsory. Your insurers must take care of any third party claims against you under the terms of your insurance policy. You will not be sued personally if you cause an accident and need the services of all those expensive lawyers your insurance company will instruct. That’s all part and parcel of your insurance policy and you have that cover in place anyway.

 So what is legal expense cover?  Is it for the expense of instructing a lawyer? Absolutely not. So, here’s an explanation. Someone T-Bones you at a junction and you have injuries, you’re off work and you want to claim. If you have legal expense cover, your insurers refer your case to a panel solicitor. You have no choice and that solicitor in all probability paid your insurer or broker hundreds of pounds for your case. You might get a qualified lawyer, you might not. You might get a specialist who understands motorcycle law, you might not. It’s a lottery and one thing’s for sure, you don’t get choice. Now, if you don’t have the cover, it’s really quite simple, you instruct your own lawyer and there are a number of good lawyers offering their service on a speculative or no win no fee basis. It’s the norm as far as personal injury cases are concerned. You don’t pay anything and you receive compensation for your injuries. If you lose, you walk away and have nothing to pay. The advantage is you have choice in the matter and can instruct someone you feel is best placed to act for you. Without the Legal Expense Cover, you are in a win-win situation. You don’t pay the £25 and if you need a lawyer you get to choose a good one. Those in the know don’t bother with legal expense insurance and to be perfectly honest you’re far better off keeping the £25 in your back pocket as you will need that extra cash for the cost of fuel!


Aftermarket Upgrades and Insurance Invalidation

Q. I want to replace my standard exhaust system with a high performance race can but one of my mates told me that if I do fit the cans I will invalidate my insurance policy. Is that right?
 
A.  Replacing the standard exhaust on a motorcycle is one of the most common aftermarket upgrades. In fact, according to a poll carried out by exhaust manufacturers, motorcyclists want to upgrade to get more power from the engine or simply to make it sound a whole lot better. Exhaust upgrades come in two types; those that are homologated for road use and bear the appropriate stamps and those that are technically for race use only. You have decisions to make between a road legal and race exhaust. If you want a race can that’s for race use only, stick to the track to keep on the right side of the law and whatever you do don’t file off the “not for road use” marking. Don’t be tempted either to stamp words to indicate that the pipes are for road use. Your mate is correct as your insurance can be invalidated if you fit a performance enhancing part without declaring it. I checked out a leading motorcycle insurance broker and they confirmed that many of the most common modifications actually have little or no effect on premiums at all. Contrast this with failing to tell your insurer about a modification which then results in your insurer refusing to pay when a claim is made. You can be sure in a fully comprehensive claim, an insurer would certainly resist paying out if your bike has undeclared performance parts on it. The best advice I can give you is go for road legal aftermarket exhausts and let your insurance company know in advance.
 

Appointing a solicitor and associated costs

Q. My brother was involved in an accident where he was overtaking a vehicle and the car in front turned right without indicating and knocked him off. He was in hospital for a few days but has received a letter from a Solicitors firm saying they have taken his case on. It is based on a no win no fee situation. He wants to use his own solicitor but the firm who wrote to him have got in their small print that for him to change firms he has to pay them £600 as this is what they paid his insurance company for his claim. Can they do this or can you change as you want without any costs?

A. The simple answer is they can’t charge your brother a “referral fee” if he chooses his own solicitor. The firm that contacted your brother can only commence work on his behalf once he signs an agreement with them. Until he does that, they have no instructions to act regardless of what they say about being “appointed”. Being appointed by an insurance company and being “instructed” by a client are two separate issues. Your brother is free to instruct his own lawyer and as he is not changing firms, on the basis he never instructed the first firm to act , he cannot possibly be held responsible for the £600.
 

Costing a Personal Injury Claim

Q. I got knocked off my bike about 2 months ago when a lady driver flew out of a sidestreet straight into my left hand side, bending my bike, snapping my leg and shooting me about 20 ft across the road. My injuries were pretty extensive. It's a straight-forward case as the woman's insurance company admitted full liability. How do claims like this get priced up and how long will it take?

A. You have asked about how injuries and loss are quantified in Law. I don’t have details of your losses but you are entitled to claim for all reasonable losses such as loss of income, expenses (e.g. medical expenses), cost of replacement of helmet and any protective clothing. You are entitled to claim for your injury and the amount that can be claimed depends on the extent of the injury. For example, I assume your leg has been fractured. If you are left with permanent difficulties or run the risk of developing arthritis, then the value of your claim is higher than a claim for an injury from which you are expected to make a full recovery. The starting off point is a medical report from an Orthopaedic Surgeon. That report will detail the injury and expected outcome. Lawyers then look at awards made in other cases with similar injuries. A very useful guide is the Judicial Studies Board Guidelines For The Assessment of General Damages in Personal Injury Cases which is regularly updated. There is a section on Leg Injuries. For example, a moderate injury to the leg including complicated or multiple fractures will attract an award in the region of £22,440 to £31,680. The value or “price” of the injury cannot be ascertained until a medical report is available and the outcome is known but a good lawyer will guide you through this process and will explain the valuation to you.

Criminal v Civil Law

Q. What is the difference between a Criminal Legal action and Civil Legal action in relation to an accident between a motor vehicle and a motorcycle?

A. It often appears that a car driver who is responsible for the road traffic accident either escapes a jail sentence and/or hefty fine or is sometimes cleared completely of all charges against them for either careless and dangerous driving. On the surface, this may appear like a gross miscarriage of justice for the injured motorcyclist but that will depend on what you perceive justice to be. With road traffic accidents such as this, the case goes beyond just the Judge and Jury criminal stage. Because this is what the media choose to emphasise, the wider public are often unaware that even if Criminal charges are either not brought or are unsuccessful, a civil case can still be raised. At Motorcycle Law Scotland, we specialise in Civil Law. This means that we do not need to prove beyond all reasonable doubt that somebody caused an accident because they were driving in a careless or dangerous manner, instead we work with the civil burden of proof. The test in Civil cases is a lower standard and requires us to prove our case on a balance of probabilities. This means that in a situation such as this we rely on the negligence of the driver and their failure to abide by the Highway Code. For example, their failure to keep a proper look out for other road users or a failure to provide a safe stopping distance. 

In such cases, we are looking for a monetary award for either the injured party or in the tragic case of a fatal accident, the family they leave behind.

An action would be raised against the motor insurers of the party that caused the accident. This is not something that can be sought in the Criminal court. Although it may seem like an injustice when a driver has caused the death of another road user and they are not punished by a jail sentence, it is arguably the civil route that can bring the most comfort to the affected family.

It is an unfortunate reality that nothing can bring a loved one back but what the civil courts seek to do is provide compensation for that loss. This can be invaluable financial support to the family to allow them to move on with their life as best as they can. Or, in non-fatal cases, the court can provide a monetary award to help re-build the injured person’s life and cover any future care costs.

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