Insurance problem - incorrect liability

albertramsbottom

Over a year ago I was turning and indicating right in to a car park when a motor cycle hit me on the righthand side of my van.

I had a letter from my insurance companies underwritters suggesting that we would have to admit liability even though it was clearly the other drivers fault. I said that the police at the scene suggested that it looked like it was the motor cycles fault and I told this to the insurance company. They told me not to put too much emphasis on what the police said at the scene of the accident and wait for the proper outcome.

4 days latter I got a letter from the police saying that they had cautioned the other driver for dangerous driving.

I then phoned the insurance company and told them this and they asked me to forward a copy of the letter to them, which I did that day.

I waited 5 months and never heard anything, so I called them and they told me that the problem hadnt been settled yet.

I never received any coorspondance from the insurance compny or there underwritters, so I decided to ring yesterday. I was told that the accident was my fault and that they had paid out 7000 quid to the other party.

I just could not belive it. Not that i care if the insurance firm want to give there money away, its just that my details will be on insurance databases and will push my premiums up if I have to admit fault.

Can I complain to the insurance company or the financial obudsman to get my details of me being at fault from any national databases and local databases with my insurance company and there underwritters (footman james and NIG)

Cheers for any advice

Quentin

You will now already have this on your record as "at fault".

What you could do prior to embarking down the complaints procedure is write and ask why your insurer accepted liability - and take it from there when you get the reply.

mattymoo

The first major case decided by the Court of Appeal was Powell v Moody in 1966. Briefly the circumstances of this accident were that there were two lanes of stationary traffic. The motorcyclist filtered along the offside of the second line of traffic when he came into collision with a car emerging from a side road on the nearside intending to turn right through a gap in the traffic. The Court described filtering as queue jumping which was a hazardous manoeuvre which had to be carried out with a high degree of care required by the motorcyclist. The Court said that it was effectively the burden of the motorcyclist to ensure that it was safe to overtake. As you will appreciate, the concept of queuing goes deep into our national psyche and there is a subconscious objection to those that “jump the queue”. If an accident happens where someone is doing this, then the natural reaction has been to blame the person who is in breach of the natural order of queuing. In this case, the Court held that the motorcyclist was 80% to blame. The effect of this is that the motorcyclist’s claim was reduced by 80%. You can appreciate how such a finding would drastically reduce the amount of compensation a motorcyclist would receive if he suffered serious injuries.

In the case of Leeson v Bevis and Tolchard (1972) a bike was filtering passed a single line of queuing traffic at about 15 mph. A van pulled out of a garage on the left in front of a lorry. A collision occurred between the bike and the van. This again went to the Court of Appeal and the biker was found 50% at fault.

We then go to the case of Worsfold v Howe (1980). This was a two lane road. The nearside was for traffic going straight ahead and the second lane was for traffic turning right. The biker was riding in the second lane at a speed of 10-30 mph. A tanker had left a large gap in front of it to allow traffic to emerge from a railway yard on the left. A car emerges very slowly in front of the tanker across both lanes to turn right. A collision occurred. This also went to the Court of Appeal where the biker was found 50% at fault. The Court said that the biker was travelling too fast and that he had gone beyond his line of sight.

In the case of Pell v Moseley heard by the Court of Appeal in 2003, here we have a single lane carriage way in each direction subject to a 60 mph speed limit. The motorcyclist began to overtake a line of traffic when he came into collision with a car which intended to turn right into a field where a motor cross event was taking place. The Court of Appeal found the motorcyclist 50% to blame stating that the motorcyclist was negligent in that he failed to notice that the Defendants vehicle would have needed to slow down before turning right, a fact which should have been apparent despite her failure to indicate. Further the motorcyclist was aware of the motor cross event and should have considered the possibility that the Defendant may wish to turn into the field and as such should not have attempted to overtake as he did.

We then saw a chink of light in the case of Davis v Schrogin in 2006, heard by the Court of Appeal. An accident occurred on a long straight section of road with one lane in each direction. There was a long queue of stationary/slow moving vehicles. A motorcyclist travelling in the same direction was overtaking at approximately 40 mph. He was half to two thirds of the way across from the central white line, was displaying a dipped headlight and a right hand indicator. He had been in that position for approximately half a mile and was not weaving in and out of traffic. A car lost patience and decided to carry out a U turn when the motorcycle was no more than five car lengths back. A collision occurred. The Court found the car driver wholly at fault on the basis that the motorcyclist was there to be seen and that even if he had been travelling appreciatably more slowly than he was, it would have made no difference because he had been right on top of the point of the accident when the Defendant first did anything to alert the motorcyclist of his intended manoeuvre. This was a decision of sense having regard to the facts of the accident. However, my heart sank when I read an article in one major motorcycle papers suggesting that bikers could now filter in any circumstances and at any speed and recover 100% of their compensation.

That euphoria was short lived following the case of Farley v Buckley in 2007. A motorcyclist was passing a refuse wagon which was travelling in the same direction and was indicating an intention to turn left into a side road. The lorry was unable to complete its turn as the side road was narrow and there was a car waiting to emerge and turn right. The motorcyclist travelling at a speed of about 30 mph overtook the refuse wagon with its wheels virtually on the centre white line when the car drove out in one continuous movement at approximately 5-8 miles per hour. A collision occurred. The Court held the motorcyclist wholly at fault as it considered that the motorcyclist was travelling at a too high a speed which in the circumstances was reckless especially having regard to the nature of the manoeuvre that he had been carrying out, the lack of visibility to his left and the fact that the refuse wagon had been displaying its left indicator.

The final case that I wish to refer to is Higgins v Johnson 2008 which is a County Court decision. In this case, a car was approaching a rugby ground on the right and indicated to turn into it. The car had commenced its manoeuvre when it was struck by a motorcycle which was overtaking. The Court heard evidence that the car driver first indicated left, then right, then left and then finally right again. The motorcyclist held back but once he believed that the car driver appeared to have settled on a course of continuing straight ahead, he pulled out to overtake. The Court accepted independent witness evidence that the car did indicate left, right, left and right. The final indication happened when the motorcyclist had already begun to overtake. The Court held that the car driver failed to check her mirrors or look over her shoulder and had she done so, she would have seen the motorcyclist. However, the Court also found that the motorcyclist was aware that there was an indecisive, erratically indicating driver ahead of him yet he proceeded to overtake her on a yellow boxed junction. The Court found the motorcyclist 25% to blame on this basis.

Source - http://www.bgtbikersolicitors.co.uk/case_law.html

Powell v Moody is a commonly quoted case and your insurers ought to have been aware of it. In this instance though, Pell v Mosely seems a better fit - 50/50 liability.

These are cases decided in the Court of Appeal and are binding on lower courts. Ask your insurers why they did not use them to argue for a split liability settlement.

NB: With split liability settlements, you still lose your NCD but at least you have the knowledge the motorcyclist was deemed to be partially at fault as well.

albertramsbottom

Thats very usfull information but the motor cyclist was to blame as the police warned hime for careless driving.

I was turning right but was indicating and was also stationary. I pulled up and waited for a suitable gap in the oncoming traffic and checked my mirror and then pulled across.

What had happened is the motor bike had attempted to go round me on the right hand side as I was waiting for a space in the oncoming traiffic. When I pulled across the other lane he was already in my blind spot.

That is negligent on his behalf as I was indicating and stationary.

Cheers

mattymoo

Sorry but you would be criticised for not checking the blind spot. You were not aware of the motorcyclists presence (otherwise you would not have turned), therefore you cannot have fully checked it was safe before making the turn.

That is why the cases I've shown above apportion some liability to the car driver.
A caution at the scene is just that. Unless the police / CPS actually prosecuted (and convicted) the motorcyclist it means nothing.

albertramsbottom

Cheers

But it was caution after the police had finished their investigations, including talking to witnesses

:j

mattymoo

albertramsbottom wrote: »

Can I complain to the insurance company or the financial obudsman to get my details of me being at fault from any national databases and local databases with my insurance company and there underwritters (footman james and NIG)

FOS is not really going to get involved over liability disputes. However, I do feel you have a valid claim against the insurers handling of this matter.

In future, when getting insurance quotes, you will be asked how much the claim was settled for. In this case £7k plus any other costs, say for damage to your own van.

In reality, using the case law I've given above, it should have been more like £3,500. It may not be though. The motorcyclist may have got say £3k while his solicitors trousered £4k.

In any event, the claim appears to have been settled incorrectly without due regard to legal precedents set down by the court of appeal.

i would write a letter to the claims managers at your broker and NIG and ask why they have failed to do this. You don't mention if you were looking to claim against the motorcyclist (for policy excess / injuries / out of pocket expenses). If you were making a claim, there settlement has severely (if not completetely) prejudiced that. In other words, prevented you from making the claim.

I do not think you are going to get your NCD reinstated but you might get a note put on the file to say the case was settled incorrectly.

foggytown

albertramsbottom wrote: »

Cheers

But it was caution after the police had finished their investigations, including talking to witnesses

:j

You're leaving a lot to the imagination, here.

1. Was this a two or four lane road?
2. Did the cycle have to cross over the dividing line (i.e. into the oncoming lane) to overtake you or was there enough room between you and the line for him to stay in "his" lane?
3. Were there dividing lines? What kind (solid, dotted left or right)
4. Where, exactly, did he strike your van? You said on the "side" but was it dead middle, towards the front of towards the rear?
5. Did you make a claim against his insurer for your damages? If so, outcome?

adamc260

If you don't accept liability then your insurance company can't really because they're prejudicing your right to make a claim against them (unless the circs are really cut and dry like you hit someone in the rear when they were stopped at traffic lights etc)

They should be dealing on a 'without prejudice basis' so if they did accept liability on your behalf without you agreeing to suitable circumstances there's grounds for complaint in my opinion

devildog

I don't know if this will help but some time ago I read an article in a magazine re an accident and basically the lady driver was not at fault so she assumed that it would all be straight forward. The other driver wasn't admitting liability and her insurance co said she would have to accept a 50-50 settlement. She refused and took the case to arbitration and won!
Basically what you have to do is ask insurance co for complaints procedure. All reputable insurance co's belong to an independant complaints scheme. There are two types....

1. With an arbitration scheme, your case will be examined by independent arbitrator who will then decide who is in the right. Before this takes place, you and the insurer must agree to be bound by the decision.

2.An ombudsman scheme also involves an independent body examining the case. But with this if you are unhappy with the outcome, you've the right to take your case to court.

I knew I kept the article for a reason:)
It sounds like they have treated you shabbily. Good Luck