Legal Advice: Hazard ahead

White Dalton’s specialist motoring solicitor Andrew Prendergast guides readers through their legal trials and troubles…

Question: The marketing said the BMW R 18 is an “Icon with a Big Boxer” and it is a “Timeless beauty.”  And to be fair, I completely agreed with that the moment I laid eyes on one in the flesh a year or so back.  After test riding the beast of a bike, I ordered one straight away and have stuck on around 10 miles since.  To be fair, it is not the most practical of bikes, but it gives you “miles of smiles” and I do not think anything tops it for cruising around on.  As we have had a mega summer, I have been out riding every couple of days, until a month ago. I had been out for a little jaunt and was heading home.  I decided to cut back though a local country lane.  Now whilst the road is narrow in places, the road surface is surprisingly good.  Added to that is the fact it is a national speed limit.  So as the sun was shining, I was hustling the big boxer along at around 50 – 55mph (in a 60mph limit) and having a lovely old time.  That was until I went around a tight left hander and found a massive tractor coming the other way.  Because his tractor was so big, and the road was so narrow, his big wheels were on my side of the road.  I tried to brake and avoid him and nearly made it.  Unfortunately, the right-hand cylinder on the boxer engine caught the tractor.  Somehow, and I thank my lucky stars, I ended up in a ditch and only suffered a fractured leg.  However, the boxer is looking like a right off.  I have tried to claim off the tractor driver’s insurer for my kit and injuries, but they have just come back and offered a 50/50 liability split.  I sent them photos showing the tractor stopped on the wrong side of the road and told them to go away.  My view is I was legally riding along, and the tractor driver caused all this because his big wheels were on the wrong side of the road.  Do you think I will win 100% on liability if I go to court?

Answer: I can understand how this accident happened and I can understand why you think you are going to win 100% on liability.  Unfortunately, I have to tell you that you could lose 100% with regards to liability at court.  In simple terms, big tractors are allowed to use country lanes.  Further, and to state the obvious, they need to so they can get to their fields and harvest their crops etc.  Therefore, as a starting point, the tractor driver is not going to be criticised for being on a narrow country lane.  Moving on from that starting point, whilst I appreciate you were on your side of the road and doing less than the speed limit, I suspect a Judge may well find you were going too fast in the circumstances to be able to stop for a “foreseeable hazzard” around a corner such as a big tractor on a narrow country lane.  In other words, if you could not see around the corner, a Judge may find you should have slowed down to a speed in which you could have stopped if you encountered a “foreseeable hazzard” i.e. a tractor etc.  If the Judge did find that, s/he could well find this is entirely your fault.  I say this as I have the case of Whiteford v Kubas in mind.  In this case the Court of Appeal found the biker 100% to blame when a collision occurred between a lorry and biker on a country lane, despite the road being just wide enough for the lorry to stay on his side of the road and he didn’t.  I personally think the decision was harsh, but it is out there.  With all that in mind, I suspect a 50/50 liability split would be a good result in your case, and you should consider accepting it.