‘Should I take blame for damage avoiding a bike falling off a car?’
Andrew Dalton, ex-dispatch rider, is a solicitor-advocate and barrister with 20 years’ experience with bikers
Q
I WAS STUCK riding behind a people carrier which had bikes on a frame on the tailgate — nothing seemed untoward. Then a bike suddenly seemed to shake off the rear carrier — it was close to instantaneous. Instinctively I grabbed a handful of (ABS) brake and steered away from the bike but clipped the kerb. I had a relatively low-speed off — still enough to break my collarbone but it could have been a lot worse. The owner of the car was very concerned and apologetic so I did not call the police.
What could go wrong, legally, with this? Just about everything, it seems. The other driver’s insurers have said they are not going to pay out on three grounds. The first is that as there was no collision between the bicycle and me, that “causation is denied” and they are not responsible for “a misfortune entirely of [my] own making.” The second is that there was no negligence by their driver and they have sent a picture of a retaining strap with broken stitching which, they say, failed through no fault of their insured. The third point is I was following too closely and a bicycle pinging off a rack is a “foreseeable risk the prudent driver guards against.”
My own insurers want me to offer
25% reduction and it seems they were very keen to get my bike picked up as they have racked-up £25 a day storage and close to £200 in pick-up charges. They are not telling me I need to make up 25% but there is a definite hint of “do what we say or you are on your own.”
I am not prepared to accept any fault but can I be bullied into a 25% hit and the loss of 12 years’ NCB?
THESE ARGUMENTS, WHEN A reduced to officious quasi-legal writing, have a superficial weight — they are utter nonsense. No collision is irrelevant. If you throw a 15kg lump of oddly-bouncing steel at 50mph across a carriageway, it is very likely it will cause harm. Your reaction fell well within the bounds of entirely foreseeable reactions. In fact, I cannot see any criticism at all for what you did and it is well-established law that a person who has to react to a danger caused by another has a very wide range of reactions before the courts will criticise them.
The second line of defence has more legal attraction but does not get around the driver’s liability. He had control of the loading of the bicycles and the fitting of the rack. He has to prove how the bicycle came to fall from the rack without negligence on his part because bicycles do not usually come off properly fitted racks. The Latin tag for this is res ipsa loquitur or “the thing speaks for itself”. So these insurers, if they want to bring the manufacturers of the rack in as the people liable for it, they can but your cause of action is against the driver and his insurers. He has a secondary claim called an indemnity claim which, if brought, will be up to the insurers to prove.
The third is a belter! A driver needs to be on guard against this type of risk, even if caused by careless or poor driving if that is the sort of driving that can be expected. I have been a specialist in motorcycle work for 25 years and I get one of these loose-load enquiries about once every two or three years. You do not need to assume a load is unsafe if it does not look unsafe. If you’d have said; “the bikes looked loose to me” and you’d have stuck behind the car, there might have been a weak but arguable case for some modest blame fixing to you.