Ward Gethin Solicitors’ Neil John tackles the tricky subject of split liability.
We’ve all heard the stories in the pub or on the train that begin something like this: “I had this accident but it wasn’t my fault…” Certain factions of the motorcycling press seem quick to adopt stories of apparent travesties of justice and manipulate them into sensational headlines, but rarely actually address the criteria which courts use to apportion blame in a Road Traffic collision case. Well here goes…
In legal terms, blame is known as ‘liability’. If you can prove liability rests with someone else for your accident, you win. In many cases, one person is solely responsible for an accident, for example when a car driver pulls out from a side road into the path of a correctly proceeding motorcycle. This situation invariably involves the line, “sorry mate, I didn’t see you.” In the above circumstance, the rider should be looking for the driver’s insurance to accept all of the blame for the accident and compensate the rider accordingly. But what about the less clear-cut cases, such as collisions at junctions where the rider has overtaken a slower vehicle or been filtering. Is the rider or the driver 100 per cent liable in such a scenario?
The simple answer is no. A claimant must prove 51 per cent in his/her favour that the injuries and expenses sustained were caused by some fault of the defendant. Depending on the circumstances of the collision, a court may find both parties partly to blame and ‘split’ liability. If this happens, the claimant will recover the whole value of his/her claim less the percentage he/she is found to be liable for the collision. This is known as contributory negligence.
The leading case on filtering for many years (and still quoted by defendant insurers) is Powell v Moody, 1966. The rider was filtering between lanes of slower traffic past a junction when the defendant pulled out from a junction on the rider’s left, colliding with the motorcycle. The Court of Appeal (one of the highest courts in the land) found the rider 80 per cent liable for the accident. Later cases such as Clarke v Winchurch (1969), Leeson v Bevis & Tolchard (1972), Worsfield v Howe (1980) and Hillman v Tompkins (1995) – all with similar circumstances as the Powell case – found the rider between one half and two thirds to blame for the collision.
While it is true to say that filtering is not negligent or illegal, the circumstances in which it is done may amount to negligence. Speed is often a factor – the courts will expect a rider to travel at a speed from which it is possible to stop in the distance he/she can see and be able to respond reasonably to a sudden obstruction. The courts expect riders to take reasonable care of themselves before any liability is attached to another road user for a collision.
It has long been said in certain quarters that the courts are ‘anti’ biking and ‘pro’ cars, and the use of the Powell case to this day may be evidence of that. However, attitudes can and do change, as the later cases mentioned show. But what else affects liability?
There are many popular misconceptions which people believe affect liability. For instance, where a vehicle involved in a collision has no MOT and/or insurance and should not be on the road. These are criminal offences in their own right but how can the fact that a car does not have a piece of paper stating it is insured or has an MOT be the cause of a collision? In short, the courts will ignore allegations of negligence based on offences that are not causative of a collision.
For example, a car is being driven with defective indicators and no MOT. The driver indicated to turn right and slowed down but the indicators did not work. The motorcycle following the car pulled out to overtake the car at a junction and across a cross-hatched red area – there were junctions on both sides of the road in what was a residential area.
The faulty indicators were a cause of the collision; the lack of an MOT certificate was not. The rider’s claim was compromised on a split of liability of 75/25 per cent in his favour due to the fact that he had put himself in harm’s way by overtaking on a junction in a cross-hatched area marked red. The Highway Code states that a road user can enter a cross-hatched area surrounded by broken white lines only if it is safe and necessary to do so. It was neither safe nor necessary for the above rider to enter the cross-hatching and he was deemed to be partly to blame for the collision.
So where does that leave pillion passengers who are injured and both rider and third party are in some way to blame? The Civil Liability (Contribution) Act, 1978, comes charging to the rescue. In these circumstances, the injured pillion could pursue their claim in its entirety against either party who is partly to blame – it would then be for the insurers to adjust the cost between themselves after the pillion has been compensated. A useful provision where the rider and pillion are a couple who do not wish to sue one another.
If liability cannot be compromised (agreed) and both parties are prepared to take the matter to court, litigation begins. This is deemed by the courts as a last resort and every case turns on its own facts and the Judge’s interpretation of the evidence and (to a certain degree) on the law surrounding a claim. If a Judge makes an error in a finding of the law (relevant to the action), an appeal may be possible. If a Judge makes an error in a finding of fact (whose version of events he/she believes) no appeal is available.
For example, if a Judge misapplies an Act of Parliament, either party may be able to appeal the decision. If however, a Judge states he/she prefers the evidence (version of events) of one party over the other, then no appeal can be made.
Similarly, where a party makes an offer to settle a claim (either in terms of a split of liability or a monetary value) and the other party fails to beat that offer, there may be cost consequences imposed. If a claimant is offered, say, £5,000 to settle, which he rejects, and a court does not award more at trial, the usual costs order is that the claimant will have to pay the defendant’s costs from his damages from the last day he could have accepted the £5,000 (three weeks after the offer is notified to the claimant’s solicitor).
In conclusion, the courts look at all the facts surrounding an accident to establish who is to blame and apportion liability accordingly. The Judge must perform a balancing act between the acts of the parties to the claim and what either party could/should have done to avoid the collision. If the rider openly places himself in danger he must accept some of the blame for any resultant collision.
By the same token, if a driver drives in such a manner that regardless of any avoiding manoeuvres adopted by the rider, the collision would have happened anyway, liability would probably rest fully with the driver.
This is a very brief tour through what is a complex area of law. The best advice for dealing with the aftermath of a collision is the following:
• DO NOT ADMIT LIABILITY AT THE SCENE • TAKE DETAILS (IF YOU ARE ABLE) OF THE OTHER PARTY AND ANY WITNESSES • NOTIFY YOUR INSURERS AS SOON AS YOU CAN • CALL NEIL ON 01553 660033 AND SPEAK TO A SPECIALIST MOTORCYCLING SOLICITOR
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professional advice on specific issues. We believe the information contained in it to be correct as at the time of publication. While
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