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Some of you may recall that just under a year ago I was knocked from
my bicycle by a van turning right to reach a parking bay on the far side of the road. The van ran over the front wheel of my bicycle. I suffered a acromio-clavicular joint separation, and have a permanent lump on my shoulder. I suffer no great discomfort from it now, though I do get a clicking sensation when I swim breast stroke. The defendent is denying liability, and is claiming I am 80:20 responsible, quoting Powell V Moody (1966). I have just Googled Davis v Shrogin (2006), which says "A filtering motorcyclist passing stationary or very slow moving traffic could not be to blame if a collision occurred if the rider had no chance to take avoiding action." Does anyone know any case law invoving a cyclist passing slow moving traffic? The van driver claims he was signalling right. I do not believe this to be the case at the time that I passed the rear of the vehicle he was driving. The van driver claims he stopped and looked to the right. This cannot possibly be true. Had he done so he would have seen me. The van driver claims I "drove too fast in all the due circumstances". My speed was about 6mph, and certainly no more than 10mph. |
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Tom Crispin wrote:
Some of you may recall that just under a year ago I was knocked from my bicycle by a van turning right to reach a parking bay on the far side of the road. The van ran over the front wheel of my bicycle. I suffered a acromio-clavicular joint separation, and have a permanent lump on my shoulder. I suffer no great discomfort from it now, though I do get a clicking sensation when I swim breast stroke. The defendent is denying liability, and is claiming I am 80:20 responsible, quoting Powell V Moody (1966). I have just Googled Davis v Shrogin (2006), which says "A filtering motorcyclist passing stationary or very slow moving traffic could not be to blame if a collision occurred if the rider had no chance to take avoiding action." Does anyone know any case law invoving a cyclist passing slow moving traffic? The van driver claims he was signalling right. I do not believe this to be the case at the time that I passed the rear of the vehicle he was driving. Do you have witnesses? I believe I was knocked off the same day. I was overtaking a stationary queue of traffic behind a bus. A 4x4 behind the bus pulled out without looking or signalling, knocked (side swiped) me off and drove off. I wasn't hurt but it made me realise how vulnerable I was and how little protection I had from the law, all she had to do was to lie and say that she was signalling. The van driver claims he stopped and looked to the right. This cannot possibly be true. Had he done so he would have seen me. The van driver claims I "drove too fast in all the due circumstances". My speed was about 6mph, and certainly no more than 10mph. People involved in a crash always seem to have some justification as to why it wasn't their fault, often involving lying. The trouble is that there is often very little evidence one way or another which makes it very difficult to prove. Given the asymmetry or risk between motorists and cyclists I think we should have an automatic presumption of driver liability. Good luck but I don't fancy your chances. |
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Tom Crispin wrote in
: The defendent is denying liability, and is claiming I am 80:20 responsible, quoting Powell V Moody (1966). I don't think that Powell v Moody can apply here (although that doesn't stop the driver's insurers from trying it on). Here's a quote from a quick 'net search: ----8----- In the case of Powell v Moody a motorbike was slowly overtaking a lorry which had waved a car on to pull out in front of him on the main road. As the car pulled across the front of the lorry to turn in front of it the motorbike collided with it. The judge in that case concluded that the motorbike rider must be incredibly careful when overtaking when he cannot see what is in front of him. Whilst insurance companies will always quote the Powell v Moody case as a defence to a claim it normally does not prevent a claim being made. If a bike is overtaking traffic, unless it is a lorry the rider can normally see ahead and assess what is happening. If someone pulls out quickly it is not the motorcyclists fault if they collide with them. ----8----- However, in your case your view ahead of the the van was not obstructed, the driver did not stop to let someone out, and you collided with the van not a third road user. So, the circumstances in your case are very different to the circumstances to which Powell v Moody relates. So, unless the driver signalled in good time and/or moved to the right to position the van for the right turn, you could claim that you had no clue that the driver would turn. In any case, if the driver did indicate, that doesn't give him or her carte blanche to carry out the intended manoeuvre. The driver must exercise due care and attention. That said, so must you. You attempted to overtake at a junction (contrary to advice in Highway Code 167) and I suspect that you'd put yourself in the van driver's blind spot. It's also possible that the driver did signal but your viewing angle and/or strong sunlight masked the signal. In short, I suspect you won't be able to pin 100% of the blame on the van driver but at least a good solicitor should be able to make mincemeat of the Powell v Moody defence. Also, you might like to know that the later case of Leeson v Bevis and Tolchard (1972) moved the share of blame to 50:50. Now Davis v Schrogin deals with very slow speed filtering where the driver makes a manoeuvre (a U-turn in Schrogin's case) that could not have been anticipated. However, in your case the van's manoeuvre could have been anticipated (he turned right at a junction!) so I suspect Davis v Schrogin won't apply. HTH, Geoff |
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Tom Crispin wrote:
Some of you may recall that just under a year ago I was knocked from my bicycle by a van turning right to reach a parking bay on the far side of the road. The van ran over the front wheel of my bicycle. I suffered a acromio-clavicular joint separation, and have a permanent lump on my shoulder. I suffer no great discomfort from it now, though I do get a clicking sensation when I swim breast stroke. The defendent is denying liability, and is claiming I am 80:20 responsible, quoting Powell V Moody (1966). I have just Googled Davis v Shrogin (2006), which says "A filtering motorcyclist passing stationary or very slow moving traffic could not be to blame if a collision occurred if the rider had no chance to take avoiding action." Does anyone know any case law invoving a cyclist passing slow moving traffic? The van driver claims he was signalling right. I do not believe this to be the case at the time that I passed the rear of the vehicle he was driving. The van driver claims he stopped and looked to the right. This cannot possibly be true. Had he done so he would have seen me. The van driver claims I "drove too fast in all the due circumstances". My speed was about 6mph, and certainly no more than 10mph. I've always thought filtering is at your own risk, although filtering up the outside (as I understand from your post) is normally more acceptable than filtering on the inside. Nevertheless, he caused an accident by not checking his mirrors or looking over his shoulder, so a decent lawyer should get a result for you. |
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On Sun, 13 Apr 2008 04:31:28 -0500, Geoff Lane
wrote: Now Davis v Schrogin deals with very slow speed filtering where the driver makes a manoeuvre (a U-turn in Schrogin's case) that could not have been anticipated. However, in your case the van's manoeuvre could have been anticipated (he turned right at a junction!) so I suspect Davis v Schrogin won't apply. He didn't turn right at a junction. He swerved across the road to get into a loading bay on the opposite side. I was ahead or nearly ahead of the van when he started his manoeuvre. I was clobbered on the back of my head by his wing mirror just before I went down. |
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Tom Crispin wrote in
: Now Davis v Schrogin deals with very slow speed filtering where the driver makes a manoeuvre (a U-turn in Schrogin's case) that could not have been anticipated. However, in your case the van's manoeuvre could have been anticipated (he turned right at a junction!) so I suspect Davis v Schrogin won't apply. He didn't turn right at a junction. He swerved across the road to get into a loading bay on the opposite side. I was ahead or nearly ahead of the van when he started his manoeuvre. I was clobbered on the back of my head by his wing mirror just before I went down. Ah, my apologies! That, of course, changes everything and you may well be able to use Davis v Schrogin. AFAICT, the essential elements of that are that the driver's manoeuvre could not be anticipated, that the traffic was moving "at a crawl", that the rider was filtering past that traffic at a reasonable speed, and there was insufficient time for the rider to react. If these four elements fit, I truly hope it works out for you. However, the driver has only to show that one of these elements were not met (e.g. that on the balance of probability he was signalling - and so his manoeuvre could be anticipated) and AFAICT Davis v Schrogin goes out of the window. You say he is both claiming that he was signalling and that you were travelling with excessive speed - so you've probably got a fight on your hands. At the very least, Davis v Schrogin puts the onus on the driver to carefully check before manoeuvering, which you can hopefully use to lever a settlement more in your favour. Hopefully, you'll at least be able to fend off their citing Powell v Moody by showing the conditions of that case are very different to those of your own, and if that fails you can use Leeson v Bevis and Tolchard to move the split to 50:50. That said, here's a few more thoughts: He says that he checked and didn't see you yet he also claims that you were travelling excessively fast. If he didn't see you, how can he make such a claim? If he did see you, why did he continue the manoeuvre? At the very least, his testimony is inconsistent, which should do wonders to undermine his credibility and thus his claim of signalling. HTH & good luck, Geoff |
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On Sun, 13 Apr 2008 06:20:09 -0500, Geoff Lane
wrote: Tom Crispin wrote in : Now Davis v Schrogin deals with very slow speed filtering where the driver makes a manoeuvre (a U-turn in Schrogin's case) that could not have been anticipated. However, in your case the van's manoeuvre could have been anticipated (he turned right at a junction!) so I suspect Davis v Schrogin won't apply. He didn't turn right at a junction. He swerved across the road to get into a loading bay on the opposite side. I was ahead or nearly ahead of the van when he started his manoeuvre. I was clobbered on the back of my head by his wing mirror just before I went down. Ah, my apologies! That, of course, changes everything and you may well be able to use Davis v Schrogin. AFAICT, the essential elements of that are that the driver's manoeuvre could not be anticipated, that the traffic was moving "at a crawl", that the rider was filtering past that traffic at a reasonable speed, and there was insufficient time for the rider to react. If these four elements fit, I truly hope it works out for you. However, the driver has only to show that one of these elements were not met (e.g. that on the balance of probability he was signalling - and so his manoeuvre could be anticipated) and AFAICT Davis v Schrogin goes out of the window. You say he is both claiming that he was signalling and that you were travelling with excessive speed - so you've probably got a fight on your hands. At the very least, Davis v Schrogin puts the onus on the driver to carefully check before manoeuvering, which you can hopefully use to lever a settlement more in your favour. Hopefully, you'll at least be able to fend off their citing Powell v Moody by showing the conditions of that case are very different to those of your own, and if that fails you can use Leeson v Bevis and Tolchard to move the split to 50:50. That said, here's a few more thoughts: He says that he checked and didn't see you yet he also claims that you were travelling excessively fast. If he didn't see you, how can he make such a claim? If he did see you, why did he continue the manoeuvre? At the very least, his testimony is inconsistent, which should do wonders to undermine his credibility and thus his claim of signalling. Here are full details of his claim. 1. It is admitted than an accident occurred on the day, and at the palce and between the vehicles as alleged in the particulars of the claim. 2. It is denied that the defendent was negligent as alleged in the particulars of claim or at all. Each and every allegation of negligence alleged against the defendent is specifically denied. The defendent will say that he stopped and checked to ensure the road was clear, indicated and proceeded to turn right into the loading bay on the opposite side of the road when the claimant cyclist, in overtaking the defendent's turning vehicle, collided with the defendents correctly proceeding vehicle. 3. The accident was caused wholly or in part by the negligence of the claimant. Particulars of Negligence The claimant was negligent in that he: i) Proceeded to overtake the defendent's vehicle despite the defendent indicating his intention to turn right; ii) Attempted to overtake the defendent's turning vehicle when it was clearly unsafe to do so; iii) Drove too fast in all the due circumstances; iv) Failed to have regard for other road users and, in particular, the defendant; v) Failed to stop, slow down or in any way howsoever to manage or control his bicycle so as to avoid colliding with the defendant's vehicle. 4. The defendant will rely on the case of Powell v Moody (1966) in which an overtaking motorcyclist was held 80% liable when colliding with a turning motorist. 5. No admissions are made as to any matter of injury, loss or damage whether as alleged or at all and the claimant is put to strict proof in this regard. Causation is denied. 6. No admissions are made as to the injuries as set out in the medical reports of Mr T W Odedun and the claimant is put to strict proof in this regard. The defendant may seek to put questions to the claimant's expert and/or seek to rely on their own medical evidence. 7. The claimant's claim for repairs to damaged bicycle as pleaded in item 1 of the schedule of special damages annexed to the particulars of the claim can be agreed, subject to liability. 8. The claimant's claim for miscellaneous expenses for the pleaded sum of £100 is not agreed as no documentation or breakdown has been provided as to how the claimant has arrived at this figure. The claimant is put to strict proof as to this head of claim. 9. The claimant's claim for damaged key ring for the pleaded sum of 50 pence is not agreed as no documentation has beed disclosed in support of this head of claim. 10. The claimant's claim for damaged trousers, damaged cycling shoes, cycling shoes cleats and waterproof panniers as pleaded in items 4 to 7 of the schedule of special damages annexed to the particulars of claim can be agreed, subject to liability. 11. The claimant's claim for interest can be agreed under Section 69 of The County Court's Act 1984 at such rate of such period as the court deems fit. Here is a diagram of the incident: http://www.johnballcycling.org.uk/ph...tilation/crash The diagram is close to scale. It was drawn by tracing over a Google Earth image. The orange line shows by progress down the road, passing crawling or stationary traffic. The blue line shows the progress or intended path of the van driver. I claim that the van driver was not indicating right when I passed him, and would not have been as he was not in the correct position to turn into the parking bay. If he later indicated, it was after I had passed him or was alongside. Critically, he pulled out earlier than could have reasonably been anticipated to reach the parking bay because the pedestrian lights had turned red, and he saw an opportunity to overtake one or two stationary vehicles to reach the loading bay while oncoming traffic was held up at the lights. The witness, standing at the bus stop, observed my entire progress from the roundabout and the crash. She is known to me being the mother of a child in my class. After the van had stopped and I was on the road it was not indicating. The driver appologised to me and I told him he was not indicating. He said that he was to which I replied that in that case his indicators were not working. He walked over to his van, turned on the right turning indicators to show that they were working. If he had been indicating, he cancelled the indicators as soon as he realised he had hit me. This I find very dubious. The fact that the van ran over my front wheel is evidence that I was filtering slowly. Had I been cycling at a faster speed the bike would have not ended up under the van. There was no way that I could have reasonably anticipated the actions of the defendant. |
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Tom Crispin wrote:
[ ... ] Here is a diagram of the incident: http://www.johnballcycling.org.uk/ph...tilation/crash The diagram is close to scale. It was drawn by tracing over a Google Earth image. The orange line shows by progress down the road, passing crawling or stationary traffic. The blue line shows the progress or intended path of the van driver. ... Out of interest, where did the van come from? |
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Tom Crispin wrote on 13/04/2008 13:28:
Here is a diagram of the incident: http://www.johnballcycling.org.uk/ph...tilation/crash Very minor point - if this diagram is to be used in official proceedings you might like to ensure that the traffic lights are the right way up! :-) Peter -- http://www.scandrett.net/lx/ http://www.scandrett.net/bike/ Email: Remove the suffix to reply |
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