Filtering Crash - Recent case you may find of interest

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Postby T.C » Thu Oct 20, 2011 10:55 am


Until now, Davis v Scroggins (2006) has been the authority that has helped filtering riders claim 100% liability in filtering crashes. This case was particularly relevant as the filtering rider was travelling at speed despite the fact that he was travelling in excess of 50MPH whilst filtering.


However, yesterday a new case was reported on appeal where because of the high speed, the rider was held 80% liable with the car driver held only 20% liable.


Whilst filtering cases have to be judged on merit, and if speed is kept to a reasonable level it should make no difference, just be aware that there is now a new weapon in the defendants armoury.


BURTON v EVITT (2011)

CA (Civ Div) (Sir Anthony May (President QBD), Black LJ, Kitchin LJ) 18/10/2011

PERSONAL INJURY - ROAD TRAFFIC

APPORTIONMENT : DRIVERS : MOTORCYCLES : ROAD TRAFFIC ACCIDENTS : APPORTIONMENT OF LIABILITY : INABILITY OF DRIVER TO SEE BEHIND VEHICLE WHEN DRIVING

A driver was found to be 20 per cent liable for a road traffic accident caused when he turned whilst being unable to see an approaching motorcycle being driven quickly and overtaking other vehicles. Where a driver was unable to see what was behind him it was necessary for him to inch out to gain a better view.

The appellant (E) appealed against a decision that he had been negligent and was one-third responsible for a road traffic accident involving E and the respondent (B). E was driving his car at the front of a queue of traffic. He slowed down, looked in his mirror and saw nothing except a larger vehicle behind him. E, when almost at a standstill, then started to turn right into a car park. The driver of the vehicle behind E then saw a motorcycle, driven by B, at the corner of his vehicle, overtaking. B drove forwards, collided with E's car and sustained severe injuries. At trial the judge found that B was driving at an unsafe speed and in such a way that he could not deal with an emergency and so was negligent. However, it was also found that it was E's duty to move his car closer to, and perhaps over, the centre of the line in the road so that, using his wing mirror, he could have seen B approaching and that E's failure to do so meant that he was causatively responsible for the accident. It was found that B was two-thirds responsible and E one-third responsible for the accident. E submitted that although any driver should have been aware of any other driver overtaking on the outside, he had slowed down and checked just before he turned and, to require more, was a counsel of perfection.

HELD: (1) It was common ground that in driving along such a road, there was a need to be particularly aware of the presence of motorcycles and that they might overtake lines of cars. E initially acted with considerable care but, when crawling, he could not see what might be coming up on the offside. As the size of the vehicle behind E's car meant that E could not see clearly, he should have inched out. Where a driver could not see what was behind him, he had to take that step. E's appeal in respect of negligence was therefore unsuccessful. (2) B's negligence was of a very high order and contributed to what happened. The issue of blameworthiness of E and B required greater analysis than it received. Proper apportionment had to take into account the different negligence issues in respect of E and B. It was appropriate to set aside the trial judge's apportionment and replace it with apportionment that B was 80 per cent and E 20 per cent liable.

Appeal allowed in part

So word of warning guys, be carefull with your speed when filtering
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Postby Gareth » Thu Oct 20, 2011 12:17 pm


T.C wrote:Whilst filtering cases have to be judged on merit, and if speed is kept to a reasonable level it should make no difference, just be aware that there is now a new weapon in the defendants armoury.

[...]

So word of warning guys, be carefull with your speed when filtering

Perhaps I don't understand how case law affects individual cases but I would have thought that the relative speed of a filtering motorcyclist is indirectly a crucial factor when apportioning blame, (since they might have not been in view if/when a motorist made a mirror check before changing course).

Beyond this, and from reading motorcyclist discussions arising from this kind of incident, there appears to be a willingness on the part of many motorcyclists to absolve themselves of responsibility for checking that their intended overtakee knows they are there and is not about to change course or direction before they pass by.
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Postby T.C » Thu Oct 20, 2011 2:09 pm


Gareth wrote:Perhaps I don't understand how case law affects individual cases but I would have thought that the relative speed of a filtering motorcyclist is indirectly a crucial factor when apportioning blame, (since they might have not been in view if/when a motorist made a mirror check before changing course).

Beyond this, and from reading motorcyclist discussions arising from this kind of incident, there appears to be a willingness on the part of many motorcyclists to absolve themselves of responsibility for checking that their intended overtakee knows they are there and is not about to change course or direction before they pass by.


In Davis v Scroggins, the motorcycllist passed stationary traffic at close to 50 MPH but full liability was found in favour of the rider as the Judge stated that the statutory duty of care remained with the driver to ensure that it was safe before they commenced any change in position.

This made it easier for us to prove liability in filtering cases as it got rid of the original Powell v Moody (1966) that was the statutory defence previously.

However, even after Davis v Scroggins, there was still an instruction that cases had to be judged on their merits but Powell v Moody would no longer be relevant as in that case it by and large outlawed any civil claim for filtering crashes, although they obviously did still take place.

These days, filtering cases are generally found in favour of the rider, but what this case does is temper that to a degree where riders will no longer be able to claim that speed was imaterial, it will now have a bearing, not so much in respect of liability but in respect of contributory negligence, which in the case of this guy was 80%, that is a big chunk to be deducted from his overall award.

The last point is that in normal civil cases, where there is an allegation of excess speed, it is not for the claimant to prove that they were on or under the speed limit, but for the defence to prove that the claimant was exceeding the speed limit, which in all but the most catastrophic of crashes is notgoing to happen as there will be no Police accident investigation.

However, what is going to be interesting is whether other defendants pick up on the speed issue and what the reaction from the courts will be bearing in mind my previous comment.
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Postby Gareth » Thu Oct 20, 2011 2:47 pm


I tried looking up Davis v Scroggins (2006) but the only references I've found are, apparently, your posts on various fora. For Powell v Moody (1966) I found a Wikipedia synopsis that may or may not be accurate, but taking it at face value it seems an entirely reasonable outcome. Perhaps you will explain how 'Davis v Scroggins (2006)' changed that position?

... more internet searching and there seem to be more hits for Davis v Shrogin (or) Schrogin (2006) and this seems to be an entirely different situation. Another case, Farley v Buckley (2007) seems broadly similar to the one from 1966. What I don't see is why anyone should think one case should dictate how future cases are likely to be resolved when the material facts will probably not be the same.
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Postby waremark » Thu Oct 20, 2011 4:32 pm


I am sorry that the car driver's appeal did not fully succeed. If being followed by a lorry, how far across the road would he have had to proceed before he had sight of a motorcycle behind the lorry? Is it really reasonable to think that he should have been looking in his mirror at that point? If he had seen the motorcyclist, is it suggested that the overtaking motorcyclist should have had priority over the turning vehicle? Why?

So far as the apportionment of responsibility is concerned, as implied above I consider that very little responsibility attaches to the car driver. The OP seems to consider that the main reason for a larger share of the blame to attach to the motorcyclist is due to his excessive speed. To this should be added the stupidity of overtaking across an entrance on the right, when he had no view of the traffic ahead.

Or, as a non-rider, am I missing something?

How is the speed limit relevant?
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Postby Horse » Thu Oct 20, 2011 5:28 pm


waremark wrote: If being followed by a lorry, how far across the road would he have had to proceed before he had sight of a motorcycle behind the lorry?

Is it really reasonable to think that he should have been looking in his mirror at that point?

To this should be added the stupidity of overtaking across an entrance on the right, when he had no view of the traffic ahead.


Presumably the lorry wasn't particularly far out? However, if it was OK for the lorry to be there . . .

Yes; would you ever condone turning without checking first?

Hmmm . . . ish. I'd - probably - only pass the car / entrance after slowing (or even stopping) to be sure (as possible) that the car wasn't going to cross. But I may be a bit odd in that respect compared to teh average rider . . .
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Postby Gareth » Thu Oct 20, 2011 6:32 pm


T.C wrote:These days, filtering cases are generally found in favour of the rider, but what this case does is temper that to a degree where riders will no longer be able to claim that speed was imaterial, it will now have a bearing, not so much in respect of liability but in respect of contributory negligence, which in the case of this guy was 80%, that is a big chunk to be deducted from his overall award.

The more I think about this the more annoyed I feel - from the reported facts that unfortunate outcome appears to have lain entirely in the hands and poor judgement of the rider.
  • Why did he think the traffic had slowed and almost stopped?
  • What justification did he think he had to overtake when there was an opening to the right?
  • Was he looking for a vehicle or other hazard in front of the lorry?
  • Why was he riding too fast to be able to stop in the distance he could reasonably expect to remain clear?
The main issue I have is whether or not the car driver was indicating, but since it wasn't mentioned I'm more inclined to think he was. Where does the motorcyclist's 'overall award' come from?
Last edited by Gareth on Fri Oct 21, 2011 5:45 pm, edited 2 times in total.
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Postby TripleS » Thu Oct 20, 2011 6:53 pm


At the risk of offending the bikers, I don't really have much sympathy for bikers if they come unstuck while filtering, especially having seen how some of them do it.

To my mind they should be thankful that they have the option of filtering, and that they don't need to be held up in queues like the rest of us. Obviously filtering saves them time, and I don't object to them doing it, but in my view the speed at which they do it should be quite low; otherwise they are exposing themselves to considerable risk. We all know that filtering takes place and we need to watch out for the bikers, but they also need to keep the speed down and be very wary. Some of them don't seem to have much of a self-preservation instinct.

Best wishes all,
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Postby exportmanuk » Thu Oct 20, 2011 7:38 pm


TripleS wrote: Some of them don't seem to have much of a self-preservation instinct.

As a biker I agree. I travel across Manchester most days on two wheels and filter for a fair percentage of it. Never at more than 20 MPH and always wary of the traffic, pedestrians, cyclists ( who also often seem to have a death wish too) and keep an eye out around side roads and for the occasional motorist who deliberately moves to block my path.

Yesterday whilst in the car travelling at a genuine 70 mph along the M62 from Liverpool to Manchester around 3 in the afternoon I was in the outside lane to pass a number of trucks and was passed on the inside by a motorcyclist who continued between the two lines of traffic at considerable speed.

You will find that most motorcycle riders would not dream of doing this and take a very dim view of riders who do.
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Postby michael769 » Fri Oct 21, 2011 2:24 pm


Speaking as a biker my view is that when filtering past vehicles on approach to a right hand junction one should be prepared for right turning vehicles to cut across one path and ride accordingly. (along with large vehicles emerging from that side road and using the fill available width).

The key is to be able to stop within the distance one can see to be clear and reasonably expect to remain so, and this rider clearly failed to stop in the requisite distance.

While a driver might be expected to realise they might encounter a bike in such a situation, I would argue that they could not be reasonably expected to realise that they might be approaching at such a hight speed.

It does emphasise to drivers that the need that looking is not enough but that they are also expected to take the necessary steps to make sure that they can see too.
Last edited by michael769 on Sun Oct 23, 2011 9:27 pm, edited 1 time in total.
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Postby hir » Fri Oct 21, 2011 2:45 pm


Gareth wrote:The more I think about this the more annoyed I feel - from the reported facts that unfortunate outcome appears to have lain entirely in the hands and poor judgement of the rider.


I agree. Unfortunately, it's yet another example of a judicial judgement being out of touch with the real world in which we live.
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Postby Mr Cholmondeley-Warner » Fri Oct 21, 2011 3:13 pm


I'm also incredulous that any blame should attach to the driver. One of the first things we're taught about overtaking, certainly as part of advanced driving, is not to overtake where there are blind junctions or entrances on either side, but particularly on the right. To suggest that a motorcyclist travelling at a speed differential of 50mph on the offside of the white line, is entirely innocent if a motorist turns right, having slowed to the appropriate speed, made mirror checks and with an indicator on*, seems to me to be distorting reality to an unfair degree.

I note that the OP posts in the tone of "a warning to fellow motorcyclists" which seems to imply that there is a "them and us" situation out there, with motorists wilfully negligently injuring innocent motorcyclists. I hope and believe that, as another poster said, most motorcyclists would see the foolishness of driving up the outside of a queue of traffic, past an entrance, at 50mph, and that their sense of self-preservation would lead them to avoid such actions.

So I'd modify the warning in the last sentence of the OP along the lines of:

"So word of warning guys, keep your eyes open and assess the likely hazards when filtering, and if in doubt, slow down or stop".

* As Gareth said, assumed but not positively verifiable.
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Postby T.C » Fri Oct 21, 2011 3:30 pm


Mr Cholmondeley-Warner wrote:I

I note that the OP posts in the tone of "a warning to fellow motorcyclists" which seems to imply that there is a "them and us" situation out there, with motorists wilfully negligently injuring innocent motorcyclists. I hope and believe that, as another poster said, most motorcyclists would see the foolishness of driving up the outside of a queue of traffic, past an entrance, at 50mph, and that their sense of self-preservation would lead them to avoid such actions.

So I'd modify the warning in the last sentence of the OP along the lines of:

"So word of warning guys, keep your eyes open and assess the likely hazards when filtering, and if in doubt, slow down or stop".

* As Gareth said, assumed but not positively verifiable.


Firstly, yes my post is a warning to "Fellow Motorcyclists" and to a large degree I would suggest that there is a them and us situation, not least because many car drivers look down their nose at those of us who choose two wheels over 4 and many drivers simply fail to ackowledge the presence of motorcyclists.

I dealt with a crash between a car and a motorcyclist not that long ago caused by the driver pulling out from a minor junction into the major carriageway into the path of the rider on the major carriageway (and who was not filtering I hasten to add) and the attitude of the car driver?

His attitude was that it was no big deal as it was only a dirty hooligan on a bike!!!! :x And this is not the first time I have hear this type of commment.

I am also not supporting the actions of the rider who was subject to this judgement, he was to a large degree the author of his own misfortune.

However, Filtering on a motorcycle is perfectly legitimate providing certain conditions are complied with, and sometimes things happen over which we as riders no matter how well trained we are have no control.

Speed is something though that we do have control over, and so the word of warning was to "Fellow riders" as a reminder that when filtering to make sure that they ride at a speed appropriate to the conditions and at a speed where they give themselves the best chance of being able to stop in an emergency.

There are riders out there who think they are indestructable, there are those (even at advanced level) who think are over confident because they hide behind an advanced qualification. And so why is a friendly warning to fellow riders a Them and Us situation.

I see too many motorcycle crashes caused by poor driving, I see a lot also caused by poor riding, and as an advanced car and motorcycle examiner I also get a lot of car driving candidates who are also very anti motorcyclist as you appear to be.

In this instance, I was simply reporting a case that had been before the High Court a few days earlier and would be of interest to "Fellow Motorcyclists" just as in the same way as I am sure you would report something of interest to "Fellow Car drivers!"
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Postby Mr Cholmondeley-Warner » Fri Oct 21, 2011 4:33 pm


I'm not anti motorcyclist. I've considered becoming one, because of the fun and camaraderie they have. I've decided I'm too old to be starting what would undoubtedly be a dangerous pastime, and my wife has absolutely forbidden it.

What I am against, is the reporting of something that was plainly to a huge degree the motorcyclist's own fault as if it was a blow to motorcyclists as a whole. To my mind, it isn't. It's just a slightly fairer reflection of reality than the situation that existed previously.

I try to be very careful to look for motorcyclists. The hardest ones to spot are those that are filtering. Just as it's my responsibility, whatever vehicle I may be in charge of, to look right and left before turning from a minor road out onto a major one, I believe it's the responsibility of people using parts of the carriageway not designated as lanes in their own right, to ensure that I can see them and not to travel at such a speed that I will miss them between even the most frequent of mirror checks. Does that not sound fair?

If I should be unfortunate enough to miss a motorcyclist when turning out of a minor junction, and cause an accident to them as a result, I would be just as mortified and feel just as guilty (more so than for a car, for example) as if I'd missed any other hazard and caused injury. Please don't assume I'm one of your "hooligan haters".

T.C. wrote:Whilst filtering cases have to be judged on merit, and if speed is kept to a reasonable level it should make no difference, just be aware that there is now a new weapon in the defendants armoury.


and...

T.C. wrote:This made it easier for us to prove liability in filtering cases as it got rid of the original Powell v Moody (1966) that was the statutory defence previously.


How should I interpret these two quotes? To me it reads as if in your official capacity (which I assume to be a Police officer from your other inputs) your goal in all cases of accidents during filtering is to ensure that the court finds in favour of the motorcyclist. Am I wrong?
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Postby Mr Cholmondeley-Warner » Fri Oct 21, 2011 5:18 pm


Gareth wrote:I tried looking up Davis v Scroggins (2006) but the only references I've found are, apparently, your posts on various fora. For Powell v Moody (1966) I found a Wikipedia synopsis that may or may not be accurate, but taking it at face value it seems an entirely reasonable outcome. Perhaps you will explain how 'Davis v Scroggins (2006)' changed that position?

... more internet searching and there seem to be more hits for Davis v Shrogin (or) Schrogin (2006) and this seems to be an entirely different situation. Another case, Farley v Buckley (2007) seems broadly similar to the one from 1966. What I don't see is why anyone should think one case should dictate how future cases are likely to be resolved when the material facts will probably not be the same.


Here's Davis v Schrogin

As you say, very different, and hard to see how anybody but the car driver was to blame in that circumstance.
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