MCN Law February round-up | 'Filtering is legal, despite what third-party insurers claim'
Paid partnership with BikeLawyer
Each month, we take a look at the questions that were sent to the MCN Law wcolumn, which is written by Andrew Campbell from BikeLawyer.
In February, Andrew was asked about two filtering-related cases. In the first, a pedestrian stepped out from the stopped traffic and in the second, a car driver made a sudden U-turn. He also addresses what the Motor Insurers’ Bureau is for and whether you can choose your own representation when you have legal cover.
If you need representation or legal advice with a biking matter, visit www.bikelawyer.co.uk or email andrew@bikelawyer.co.uk or call 01446 794169.
Pedestrian versus scooter
I was riding my scooter home from work when traffic was queuing in front of me. As there were no cars coming the other way, I filtered past the queue at about 25mph. An elderly gentleman walked out from between the traffic into my path and I came off. I only had minor injuries, but my bike was damaged.
A witness confirmed it was not my fault. The pedestrian has threatened a counter claim for his injuries. He says he walked across as the traffic had stopped. Is he to blame for this accident?
Ben, Wrexham
Filtering is legal, despite what third-party insurers or their solicitors claim. Each case is fact-specific, so there are no hard and fast rules, but case law has stated that if traffic is stationary then a speed of 15mph would be an appropriate filtering speed – whereas 20mph may not be. When considering liability other factors are relevant, such as the presence of a junction.
The pedestrian should have made sure that it was safe to cross and had he looked properly he would have realised you were there and it was not safe to cross. I would not worry about a counter claim (your insurer will deal with it), but do be aware there may well be contributory negligence on your part due to your speed.
Lawyer needs to do a U-turn
Back in October I was riding to work outside Newport. I approached a queue of slow-moving traffic, so decided to filter past on the right. I was riding at about 30mph and the limit for the road was 60mph. There were no junctions at the collision point.
After I passed some cars one pulled across my path to do a U-turn in front of me with no indication, causing a collision. My lawyer tells me I should accept a 50/50 liability offer. Is this right?
Ryan Evans, Cardiff
Each case turns on its own facts and I would need to see the police report, any witness statements and any video/cctv footage to give you meaningful advice.
However, your case is aligned to the situation in the court case of Davis-v-Schrogin. There was one lane in each direction and, as in your case, the motorcyclist was overtaking a line of traffic on the outside. The motorcyclist was awarded 100% as he was established and was there to be seen had the other driver looked. The other driver also failed to indicate so there was nothing the motorcyclist could have done to avoid the accident.
If the evidence backs up your version of events then you should succeed 100% and you should highlight the Davis-v-Schrogin case to your lawyer.
The MIB won’t touch my case
I was riding my Harley-Davidson Softail when I was involved in an accident where I was taken out by an SUV driver who then left the scene. I had multiple injuries, and my bike was damaged beyond repair as well as property damage.
I made a claim to the Motor Insurers’ Bureau but they rejected it for the stated reason that the SUV driver leaving the scene was not evidence that he was negligent in causing my accident! He collided with me when he cut across a bend in the road. What more do they need and what can I do?
Harry B, email
The Motor Insurers’ Bureau compensate victims of negligent untraced drivers (as well as uninsured drivers). To win a claim you must show that your injuries were caused by or arising out of the negligent use of a vehicle on a road or other public place.
So, if you can prove negligence your claim should be accepted. The MIB is right to say that just because he left the scene is not evidence of negligence in causing the accident. However, if you were established in your lane and he crossed into your lane it speaks for itself that he was negligent.
Waste no time in instructing a solicitor to look at the claim because there is a strict six-week deadline to appeal the decision.
Who will represent me?
I have legal expenses insurance but I’ve only recently noticed that the cover restricts me to using a legal panel imposed by the underwriter. Should the worst happen, I’d like to be sure that I have the appropriate legal support in my corner. Can you offer thoughts on ensuring that I have the flexibility to employ a specialist solicitor like yourself?
Keith Milmer, Bucks
That is a pretty restrictive term by your insurer. I note that they acknowledge that in the event court proceedings are to be issued then you may choose your own representative. That is correct. What they have not said is that in serious injury and complex cases, you have complete freedom of choice from day one. We have never had a legal expenses insurer dig their heels in when we point out the reality. I imagine they just consider most people won’t bother looking around.
If an insurer refuses to allow you to appoint their own lawyer under the terms of the policy there are still products you can buy to assist. These are ‘after the event legal expenses insurance’. They are well priced and give the comfort of protection when one appoints a different firm. You don’t pay for the premium if the case fails and the premium is only payable at conclusion of the case.
