Overtaking is a basic skill and requires the ability to judge speed and distance and know the capability of your own motorcycle. Motorcyclists are at particular risk when overtaking a line of traffic, as the case law below will demonstrate.
Further, drivers caught up in a slow moving queue of traffic often don’t think to check their mirrors prior to commencing their own overtake as they tend to concentrate on what’s ahead and not what’s behind contrary to the advice in the Highway Code (Rule 162 and 163). Motorcyclists should always plan their own overtake and should not rely on the rider in front.
There are many factors to take into account when presenting a case regarding a motorcycle collision involving overtaking and below are three examples of the attitude taken by the Courts both North and South of the Border.
The first is the case of Ogden and Chadwick vs Barber and Higgs (2008). For those who are interested, I have attached a link to the decision. Some of you may find the circumstances all too familiar.
On 28th June 2003, on A675 near Abbey Village, Lancashire, Mr Chadwick riding a Suzuki travelling away from the village, was hit by a Kawasaki ridden by Mr Barber who at the time was on the opposite side of the road on the brow of a hill entering a left hand bend. The rider following the Kawasaki, Mr Odgen, riding a Yamaha was also injured. The Suzuki rider Chadwick and the Yamaha rider Ogden sued the Kawasaki rider Barber and another participant Mr Higgs who had been driving a Subaru ahead of the Kawasaki rider. Before the accident, the Kawasaki tried to overtake the Subaru. In response, the Subaru accelerated so the Kawasaki rider fell in behind. On the next short straight section of road and before the solid white line, the Kawasaki attempted a second overtake. Again the Subaru accelerated. Realising he was running out of time, the Kawasaki rider dropped his speed to enable him to pull back in behind the Subaru but was blocked by the Subaru who also decelerated. Unable to get back in, the Kawasaki rider came over the brow of the hill on the opposite side and ran into the Suzuki rider. The Yamaha came over the brow of the hill and collided with the Suzuki. The Subaru kept going but stopped a short distance away. At the Civil trial, the Judge found the Subaru driver 80% to blame and the Kawasaki rider 20% to blame. In finding the Kawasaki rider 20% to blame, the Trial Judge observed the Kawasaki rider knew of the Subaru driver’s dangerous reaction to an attempt to overtake and should have waited to overtake at a later opportunity. He should not have embarked on the second overtake approaching the hill and a bend at speed. The decision was upheld on appeal. Interestingly, the Subaru driver was prosecuted for Dangerous Driving but was acquitted!
Shaw v Russell and Another (2004)
This is an interesting Scottish case and the locus may be familiar to readers.
On the 16th July 2000, a motorcyclist with a pillion passenger was travelling north through Glencoe. The motorcyclist overtook a line of cars and vans. A minibus driver at the head of the queue turned right and across the motorcyclist’s path. He failed to observe the approaching motorcyclist. In the ensuing collision, the pillion passenger, Elaine Shaw, sustained serious injuries ultimately resulting in the partial amputation of her left arm. The case proceeded to Jury Trial at the Court of Session in Edinburgh. The verdict of the Jury was the minibus driver was 95% to blame for the accident but the motorcyclist should accept some responsibility, which the Jury assessed at 5%.
Finally, let’s look at a case, Beasley v Alexander (2012), involving a U-Turn in front of an overtaking motorcyclist from down South.
See link.
On 22nd May 2009 on A453 in Nottinghamshire, a driver of a Volkswagen Golf 3.2 stuck in a queue of traffic decided to execute a U turn and return home. Unfortunately, at the same time, a motorcyclist riding an R6 was overtaking the same line of cars at a speed of approximately 45mph. A collision occurred, the strap of the motorcyclist helmet broke and his helmet came off on impact. He sustained severe injuries including brain injuries. Visibility at the time of the incident was good and weather conditions were fair. There were numerous witnesses some of whom were critical of the motorcyclist’s speed. The Judge found the Volkswagen driver had pulled into the path of the overtaking motorcyclist and the motorcyclist had no chance of avoiding him. He found the motorcyclist was travelling “somewhat too fast” but even at a top “safe speed” of 35mph there would nonetheless have been an accident and the motorcyclist would still have sustained serious injury. The car driver was 100% to blame.
I firmly believe when acting for motorcyclists it is important to complete full investigations and to treat each case as a unique incident requiring full investigation of all aspects before presenting a case to a third party insurer or before a Judge or Sheriff. Each case is fact sensitive. Whilst Lawyers and insurance companies will seek to rely upon previously reported decisions, there is no doubt that every case must be decided on its own merit and must be fully prepared accordingly.
One of the first clients I represented when I set up Motorcycle Law Scotland was a motorcyclist by the name of Barry Horsfield.
On 24th February 2012 Barry was riding his motorcycle heading South from Drumnadrochit on A82. He was out for a short run in order to ensure his motorcycle was in good working order prior to selling it the next day. After completing a life saver and ensuring it was safe to overtake, Barry commenced an overtaking manoeuvre to pass a slow moving tractor travelling in front of him. However, as he did so, the tractor started to turn right into a farm entrance to his off side turning across Barry’s path. Barry tried to take evasive action but had no time to do so. In an attempt to avoid an impact with the tractor, he “laid his motorcycle down” and pushed the bike away from him. He hit the ground with his right shoulder. Unfortunately, he suffered a fracture to his left arm and right shoulder. He required surgery and was in hospital for 10 days.
When Barry first approached me, a firm of Solicitors appointed by his insurance company was representing him. He had never met his solicitor but had received advice to settle the case on a 50/50 split liability. He was told that if he didn’t agree to a 50% deduction to reflect his own negligence, then the firm of Solicitors was simply not willing to raise an action in Court.
Unable to understand why he should accept 50% blame for the accident, Barry contacted MLS. We took the case on and completed full investigations including meeting Barry on a number of occasions, going through locus photographs, attending the locus and meeting the reporting police officer in Inverness. Once the case was fully prepared, we did what his previous Solicitor refused to do and raised a Court Action.
The police officer confirmed that he investigated the incident together with his Sergeant. The information made available to them was that the tractor driver and the motorcyclist had been travelling south towards Fort William. The tractor driver had gone to turn right, had said he had indicated, looked in his mirror and was confronted with a motorcyclist separated from his machine. He also noted that the motorcyclist’s version of events was quite different in that the motorcyclist said he had indicated and commenced his overtake when suddenly the tractor driver moved to turn right without warning or indication into a farm entrance and as a result he lost control.
The farm entrance was not marked as a junction and could not have been seen by the motorcyclist prior to the commencement of his manoeuvre. We discovered that the tractor had been towing a seed box and the indicators were covered in mud thus making it difficult for any individual following to tell whether indicators were flashing (assuming of course they had been operated).
In this case, there were two quite distinct versions of events and no independent witnesses. The Court action was eventually settled successfully and in Barry’s favour to take into account all risks.
Barry wrote to me after his action was concluded. He had this to say:
“Dear Brenda,
I am just writing to thank you and your team for all the hard work and effort in finalising a settlement for my motorcycle claim.
Throughout this time I have always felt fully confident that you were acting in my best interests. I have appreciated your honest and open approach during all our conversations.
As we both know accidents of this nature do happen, it is reassuring to know that there are people like yourself that are prepared to listen and make a professional judgement based on facts and not one that is just governed by financial gain to yourself or your company.
Once again thank you and all the very best for the future”.
In my line of work there are two words that seem to go hand and hand with each other. Mention the word “motorcyclist” and an insurance company will mention the word “speed.” Speed will have an influencing factor in attitudes taken by insurance companies or for that matter Judges or Sheriffs. However, in my opinion, when motorcyclists are seriously injured they need the benefit of a Lawyer who will treat their case as quite unique and will treat them as an individual and not a file number. Barry was given access to a process via his Insurance Company but never met his Lawyer who ultimately refused to back him. Barry came across as a credible and reliable individual and for that reason we backed his claim financially and would have been prepared to pay a significant amount in legal costs if the case had been unsuccessful. However, because the extent of the preparation and knowing about the entire circumstances of the accident, we were able to take on that risk and were ultimately successful.
I have given some examples of the attitudes taken by Courts in relation to overtaking cases. Please note that overtaking and filtering are quite distinct albeit that distinction is not always immediately apparent. Generally, a filtering manoeuvre is executed at 15mph or less. Overtaking, on the other hand, is considered to be at a speed in excess of 20mph. There are of course grey areas, but the advice is, if it happens to you, be sure to engage a motorcycling lawyer that is prepared to treat you as an individual and will go the extra mile by completing full and extensive investigation of your own quite unique case.
