One of the major benefits of riding a bike in traffic is knowing, that by filtering past irate car drivers in queues a mile long you are bound to get there on time. Ok so there’s no excuse for arriving at work late but I want to help you make sure you arrive in one piece and if not then someone is going to pay!
As a motorcycle accident claim lawyer of over twenty years experience I have seen hundreds, nay thousands of ‘filtering disasters’ pass across my desk with injury pictures like the continuity polaroids from a zombie film. Please read this article and I promise you will change your view of filtering forever and will have more chance of drinking the sherry your children are going to leave for Santa on Christmas Eve.
So if you come upon a line of traffic and want to progress what does the Highway Code say. Well, amongst other things, you are overtaking so be aware of code 167:-
167
DO NOT overtake where you might come into conflict with other road users. For example
• approaching or at a road junction on either side of the road.
On most urban roads there will be minor roads on both sides so if you applied the Highway Code to the letter you would not be able to progress at all. Clearly nonsense but Judges know the code and expect you as a motorcyclist to be aware of the possibility of cars emerging from minor roads on both sides.
Don’t get me wrong, the drivers emerging have an equally high duty as exemplified by code 211:-
211
It is often difficult to see motorcyclists ….. especially when they are ….. filtering through traffic. Always look out for them before you emerge from a junction;…… When turning right across a line of slow-moving or stationary traffic, look out for …motorcyclists on the inside of the traffic you are crossing.
But the Highway Code is just advice from our blessed government and is not actually law. So how do Judges look at accidents where bikers are trashed whilst filtering?
Any legal analysis of filtering cases starts with the landmark ruling of Powell v Moody in 1966, a case that sends shivers down the spine of all bike lawyers and many a leather clad limper. In that case a biker was slowly overtaking a lorry when the driver beckoned a car to emerge and turn right, T-boning the luckless filterer. A finding of 80% of the blame was made AGAINST the biker. Yes he only got 20% of his compensation.
Later cases were reported where Judges were persuaded on the evidence to award a 50-50 split apportioning blame equally between Honda and Volvo. And now in a blaze of hastily written and patently wrong articles in lower grade bike publications the law has apparently been “changed in favour of bikers for the first time ever” (to avoid embarrassment to the writer I will not mention where I got that quote but Google it for a laugh). I have even seen almost criminally wrong advice telling bikers that “filtering is no longer a grey area ..it is legal!” In the words of my hero Jim Royle……my arse!
This biggest load of nonsense since that old ‘weapons of mass destruction’ debacle revolves around the case of Davis v Schrogin that according to some heralds a new part of the highway code that reads along the lines of “feel free to filter, the faster the better with reckless abandon safe in the knowledge that if anything happens your widow will win 100%”
The rather depressing and boring truth is that nothing whatsoever legally has changed and motorcyclist involved in filtering collisions still face a battle to preserve every penny or percentage of fault. Filtering is and always has been “legal” it is just risky and carries a very high duty of care.
In the Davis case the biker came upon a long (half a mile long!) line of traffic with nothing on the other side and no, I repeat no, junctions, entrances, obstacles, driveways etc on either side of the road. The Romans themselves would be rightly proud of such highway planning. The biker proceeded to pass the line of drivers in various states of torpor at 40 miles an hour when without indication or warning Schrogin could withold his crushing boredom no more and in a moment of madness and with the devil’s luck performed an impulse U-turn at the precise moment the ultra visible Davis was passing.
Schrogin’s insurers in an act of almost Dickensian meanness tried to deprive the rightful Davis out of his rightful compensation to buy champagne for the shareholders annual general meeting ( sorry am I getting carried away but you get the point). They argued he was going too fast for such a manoeuvere and should share some blame, a position rejected out of hand by the lovely Judges at the Court of Appeal. Yes those guys in the long wigs you see annually on the news are not, contrary to popular belief, always anti-biker…..just sometimes!
So whilst Mr Davis won 100% compensation for his serious injuries it was not a change of law that saved him but a strict interpretation by great judges of “great” factual evidence. And that my biking colleagues should be your watchword in all your riding, evidence! Whenever you are overtaking or filtering think about how it would look in a courtroom when fancy city slicker suits are analysing every shred of evidence of your riding ability. If you are flying along a line of traffic at sixty when a car emerges from a minor but obvious road through the traffic that has left a gap bigger than Belgium that you “failed to appreciate” then even Perry Mason himself could not win your claim for compensation.
So given my years of forensic analysis of bike accidents and despite me having only a mere sliver of the riding skill gene of my namesake I offer you ten top tips to save your bacon when filtering.
- Filter carefully constantly assessing everything as you go
- Slow down if there are minor roads or driveways on either side
- MIND THE GAP. If the traffic has left a gap it is not because Johnny Cardriver had a late night and has nodded off it’s because he has seen the lovely Dolly Daydream trying to get out and wants to woo her with his chivalry by beckoning her straight into your path.
- Expect the unexpected. Assume that a car WILL come out of the gap and do not go across it until you have crawled level with the last car and peered round its bonnet. Stop if you have to.
- Where there are no drives or minor roads watch for cars doing U-turns. If a car swings to the left it can indicate a severe swing to the right is coming as in the Davis case.
- Car drivers cannot see through lorries and high sided vehicles so go past them slowly.
- If you are going past a stationary bus, particularly a school one EXPECT someone to walk across the front. It does happen a lot I can assure you.
- If disaster strikes and you are knocked off preserve the evidence provided of course you are still with us. Get names and contact details of witnesses as their EVIDENCE is crucial and could make or break the case.
- Get the right advice early. There are many specialist bike lawyers like me, just take some time to find one and don’t just accept your insurer’s choice of solicitor unless you are entirely happy with it. You can and must appoint a solicitor of your choice even if your insurers say you can’t.
- Your case and every single bike accident case there has ever been will be decided on the facts as shown by the evidence and if it doesn’t look good to the Judge you will lose. There is no rule of law that filtering is or is not legal. Facts, evidence, facts, evidence and more facts is all that matters if it all goes wrong.
Finally if you think this will never happen to you I sincerely hope it doesn’t but I thank Ian Dunmore (letters page 12-13 TRD October) for sharing his misfortune with us and prompting this article. I am sure he has changed his approach to filtering, as have I and I hope you!
If you have any accident scenario you think I could analyse from a legal viewpoint, to the advantage of the two wheeled world please contact the Digest or me directly at mark@lampkinco.co.uk
Mark Lampkin, Lampkin & Co Accident Solicitors
