Challenges to liability in motorcycle accidents
Any specialist motorcycle lawyer will likely, at one point or another, have faced a challenge to liability in a personal injury case where their gut will tell them that if the client had been driving a car, the issue simply wouldn’t have been raised.
We know that the injuries suffered by motorcyclists tend to be more serious than those of other road users, and so in an effort to keep the amount of any settlement down, insurers regularly try to shift the blame.
Other drivers often forget that motorcyclists are vulnerable road users. Despite making up only 1% of the traffic on the road, bikers account for between 20-25% of serious or fatal road accidents.
We know that two wheels are less stable than four, and an emergency braking situation for a motorcyclist can be catastrophic on a bend or an overtake.
Helmet cameras and on bike cameras are becoming increasingly popular, and can be very useful in showing ‘what happened’. Sometimes, witnesses volunteer their own dash-cam footage. These are very helpful in persuading the courts and insurers that the rider is not at fault.
Because only a small percentage of the population ride motorcycles, they are not on the look out for bikes on the road. We can all play our part here – the “think bike” campaign is helping to raise awareness. In winter when there are fewer bikes in the road, drivers do not always expect to see their two-wheeled friends.
It is not unusual to have witnesses talk of bikes “coming out of nowhere” – because the witness hasn’t been aware of the bike. Bikes have greater manoeuvrability than cars, and can come through stationary or slow moving traffic.
Drivers and passengers in cars with radios on, engrossed in conversation, sometimes won’t even be aware of a bike passing them until it’s ahead and passing the next car, if they notice at all. Some riders choose to modify their exhausts (or ‘cans’) to make others aware of their presence. That can come with their own problem though, as some are illegal modifications and can exceed noise restrictions.
Some witnesses regularly talk about the motorcycle ‘flying by’, whereas there is little or no evidence of the motorcycle travelling at speed. Recent research on the perceived speed of large moving objects, compared to smaller moving objects, has revealed the presence of a size-speed illusion. This illusion, where a large object seems to be moving more slowly than a small object travelling at the same speed may account for some of the discrepancies in reports of speed.
Those used to seeing bikes or other riders can more readily assess speed, than those who are used to slow moving vehicles, or those who look up and have to quickly assess the speed of a small (compared to a large car) motorcycle.
Sometimes, however, speed is an issue. Bikes have much greater torque and acceleration than cars, vans or lorries, due to their weight to power ratio. That can take motorists by surprise. Inexperienced riders can have difficulty controlling the acceleration of large or powerful machines. If there is a ‘wobble’ on a bike, then the gyroscopic effect can cause the bike to become unstable, and the rider to lose control. The difficulty is in proving to a court that the resultant loss of control was cause by the rider reacting to someone else’s negligence or fault, particularly when faced with seemingly unhelpful witness evidence.
What can you do to help make sure your injury case is successful?
Make sure you are ‘doing everything right’, not only so that the insurers can’t try to blame you, but to avoid the accident in the first place.
What are you wearing? Are you visible? Are your lights clean? Is your bike well maintained? Do your brakes work? Are your tyres legal?
These sound like very basic questions, and they’re meant to be. At a very basic level, we all have a duty to take care for our own safety.
We can’t control what other road users do, and we need to be able to respond to changing situations.
Give yourself a fighting chance of being seen, and being able to ride your way out of an emergency.
If you’ve done everything right, and are dressed appropriately, and riding carefully, your chances of being involved in a motorcycle accident are reduced.
Despite that, things can still go wrong and accidents happen.
Choosing a specialist motorcycle lawyer is a good start. The arguments we face regularly from insurers such as who was at fault can often be overcome. No matter how experienced your lawyer is after an accident, prevention is better than cure.