Two Wheels Bad Four Wheels Good?

In collisions between motorcycles and cars, the law historically came down on the side of the four-wheelers. Recent judgements have seen this change significantly, however. Steve Ross explains
Motorcycling as a means of transport has come a long way in the UK during the past 10 years. In 1994, there were fewer than 600,000 licensed bikes; by 2003, this had grown to just over one million. Unfortunately, the culture of handling claims stemming from motorcycle accidents has not kept pace, resulting in unnecessary financial and human cost.Powered two-wheelers - motorcycles, mopeds and scooters - not only provide an affordable means of transport for thousands of commuters, they act as a first vehicle for many new road users.

A status item for many older riders, PTWs also offer solutions to congestion, reduce environmentally harmful emissions and provide a means of social inclusion through providing 'wheels to work' for rural youth or through 50cc machines for a pensioner's trip to the shops.In 2003, motorcycles covered 5.6 billion vehicle kilometres in the UK - representing around 1% of vehicle traffic. In stark contrast, however, motorcyclists represented around 20% of all deaths and serious injuries on our roads. And 76% of accidents resulting in motorcyclist casualties involved collision with a four-wheeler - causing injury, grief and hardship for riders and their families, as well as ending in an inevitable cost to the economy generally and to the insurance industry specifically.

These facts come at a time when Road Safety Minister David Jamieson MP has called on all those involved in motorcycling to pull together to 'mainstream' motorcycling, stating that: "For a driver to injure a motorcyclist because he 'looked but didn't see' is an unacceptable excuse," (see p31).Many of those handling claims involving turning drivers not seeing bike riders remain entrenched in the culture of the 1960s. They often rely on outdated authority as the basis of their denial of liability - increasing hardship, delaying rehabilitation and inviting costly proceedings that are subsequently compromised, either entirely or in part.

Classic overtaking case
The 1966 case of Powell v Moody remains probably the most quoted bike case of all in correspondence pre-proceedings. It is presented as the classic overtaking case with the motorcyclist passing traffic and riding into collision with the vehicle pulling out of a side road on the right. The case no longer appears in Bingham and Berrymans' Motor Claims Cases yet many of those defending claims deny liability or make offers that reflect the ruling in the case of 80:20 against a motorcyclist.

The case involved motorcyclist Powell who was overtaking a line of traffic two abreast - effectively making a third lane and 'jumping the queue'. In reality, however, Powell v Moody fails to provide a decisive authority to rout the claim of a motorcycle claimant and insurers quoting the case entrench claimant advisers' attitudes, creating a barrier to sensible negotiation and settlement.Using Powell v Moody in the wrong circumstances is like saying a claims technician does not understand bike accidents, or sending a message that an insurer sees the act of riding a motorcycle as prima facie evidence of contributory negligence - ultimately a crude device to attempt to reduce compensation.

Other factors
Powell v Moody should, in fact, be avoided in any case involving a motorcycle, even those with a motorcycle filtering along a line of traffic, because new authorities have superseded it. For example, Hillman v Tompkins (1995) involved a speeding and overtaking motorcycle colliding with a car that was suddenly turning right out of the line of traffic.Even though the Court of Appeal said fault was split 50:50, and described overtaking in circumstances of this kind as "undesirable", claims technicians in 2005 should remember the following additional factors. Motorcyclists must now show Driving Standards Agency test examiners that they can filter through traffic; new drivers are taught hazard awareness; all drivers are implored to 'think bike'; and The Highway Code after 1999 defines motorcyclists as vulnerable road users.Attitudes to what was sometimes only seen as rider fault have changed, as more recent authorities show. Judges are both aware of and protective of vulnerable road users. In Russell v Smith (2003) Judge Rich QC stated: "I think it right to reflect the injunctions of The Highway Code to motorists who drive what all of us should constantly remember are lethal instruments. The most vulnerable road users are pedestrians, cyclists, motorcyclists and horse riders."

In Russell, a 10-year-old cyclist was deemed primarily responsible for a collision but rather than reduce their damages in accordance with their 75% share of responsibility, it was ruled as just and equitable to reduce their damages by 50% because they were a vulnerable road user.

Both to blame
And the new millennium has provided another case called Powell: Powell v Hansen. This Powell was riding above the speed limit of 30mph; the defendant, Hansen, turned right at traffic lights and was run into by Powell. The judge said the negligence of both parties caused the accident but the proportion of that causation was only measurable by their respective culpability.It was Hansen who was engaged in the potentially dangerous manoeuvre (the right turn) and who failed to watch out for motorcyclists (specifically accorded protection by Rule 117 of The Highway Code), whereas Powell was only driving ahead on a course for which he was entitled to the right of way. Powell was deprived by his excessive speed of being able to do anything to avoid the collision. The apportionment was 80:20 in favour of the motorcyclist.

In advising claimants in the past century, solicitors were aware of prejudice against riders as a significant litigation risk. In this new century, requirements for increased rider and vulnerable road user awareness create greater litigation risk for insurers defending claims brought by motorcyclists. As the motorcycling industry pulls together, there is the opportunity to generate awareness and understanding of motorcycling for insurers who are looking to avoid their drivers becoming involved in collisions with bikes in the first place.

Increased understanding of motorcycle law by claims technicians seeking to find better solutions with those bringing claims would equally serve to reduce insurers' liabilities - but only if we all ride forward together.

Steve Ross heads the motorcycle group at law firm Lyons Davidson.

Helmets Project Hears from A and E
Doctor makes house call to young riders in Taunton. Helmets at Hein Gericke and then to the BMF Show
May 2005

The young motorcyclists project in Taunton 'Helmets' recently heard a talk from Dr Rhona Mann, Accident and Emergency Consultant at Taunton's Musgrove Park Hospital about rider's injuries and how they can be avoided. Working with a theme that the best protective equipment a rider has is their brain Rhona talked about common injuries suffered by riders caused by different types of accidents. Rhona then talked the group through a set of x-rays donated by a seriously injured motorcyclist injured in a looked but failed to see accident. Everyone agreed that the talk was informative and useful for motorcyclists but car drivers would benefit from it as well - being told what could happen from a moment of inattention on the road might make drivers Think Bike. As well as Rhona's talk the group visited Hein Gericke Taunton, hosted by manager Adam Jordan who opened the shop in the evening for a look at the different types of riding gear available to riders from racing to touring, and who provided loads of goodies for people to take away with them. Bike LD's Steve Ross is the BMF organiser for the Helmets Project. Steve said "We are capturing the riders interest now and working with business to make sure that positive messages are getting put across. We are perfecting this project and hope to roll it out further a field in the coming months".

The Helmets group will be visiting the BMF Show in Peterborough on the weekend of 21/22nd May 2005 and the show will see the launch of the Bike Lid and Bike LD website by BMF Chief Executive Simon Wilkinson - watch this space for more.

Highway Engineers lead the way
New guidelines provide Highway Engineers with essential information
April 2005

Steve Ross attended the publication of the Institute of Highway Incorporated Engineers (IHIE) Engineering Guidelines For Motorcycling. The Guidelines are described in the extract below from a BMF press release.

Part funded by the BMF Foundation, the guidelines, the first in UK, will give highway engineers practical advice on how the different characteristics of motorcycles can be recognised and addressed in highway design and traffic management. The Guidelines were launched in April in London.

The BMF see this as an essential factor in making the road environment safer and more welcoming for motorcyclists by better integration of motorcycles into the road and transport infrastructure. The IHIE Guidelines follow up and compliment the Government's Motorcycling Strategy, to which the BMF also contributed, which is aimed at "mainstreaming" motorcycling.

The guidelines will provide highway engineers with essential information, but from a motorcycling perspective, on:

-The design of roads and traffic calming with motorcycles in mind
- the integration of motorcycling into local transport plans
- convenient, clear and safe motorcycle parking
- the way motorcycles are ridden and react
- improving road maintenance methods and procedures
- access to bus lanes and the Advanced Stop Lines facility currently used by cyclists

Dr Leon Mannings, Chairman of the 140,000 strong British Motorcyclists Federation said: "We welcome these guidelines and are pleased to have contributed to their development. Motorcycling has an increasingly valuable role to play in the transport infrastructure and this initiative by the IHIE is most timely. Motorcyclists are vulnerable, but hopefully they will now be less so".

For the IHIE, Tony Sharpe Vice President of IHIE, said: "As a motorcyclist myself I was obviously keen to get this project off the ground and was delighted when the BMF Foundation agreed to help to fund it. Not only that, but their input and experience was invaluable to the steering group and has resulted in the production of what we consider a real-world guide for all highway engineers."

Presentation of cheque to NABD
Bike LD lead the field in Motor Cycle Litigation training and raise money for charity in the process.
March 2005

Following Judith Kelbie and Jonathan Dingle's successful tour talking on "Zen and the Art of Motorcycle Litigation" Judith of Bike LD and Jonathan a Barrister from Clerksroom were invited to lecture at the offices of another law firm - to train over 80 members of their staff on this area of law. The training comprised of morning and afternoon sessions. Steve Ross of Bike LD and Andi Barnes; Counsel also from Clerksroom, assisted with the afternoon sessions.

At Judith's suggestion the fee of £1000 for the course and this sum was presented to Dave Ladd, Bristol rep of NABD - the National Association of Bikers with a Disability.

Judith said " I have done a lot of work with NABD who assist clients with adaptations to their motorcycles allowing them to get back on two, or sometimes three, wheels after an accident. This money will be used by NABD to fund grants to riders for adaptations".

Pictured Steve Ross, Judith Kelbie, Dave Ladd and Sue Cooper of MASS

BikeLD lawyer chairs national law conference
Steve Ross teaches two wheelers solicitors
February 2005

Bike LD's Steve Ross chaired Central Law Training's 'Injuries and the Two Wheeled Road User' Conference at the Café Royal in London. In addition to chairing the conference Steve spoke alongside Terry Beale Somerset County Council Highway Engineer and Senior Accident Investigation on New Perspectives on Highway Accidents and Door Pillar Obscuration problems causing Looked But Failed to See Accidents. The talk titled 'Gorilla Pillar Killer' dealt with the problems of bad roads and of drivers failing to see low profile vehicles (bikes) and vulnerable road users - at junctions nearly 25% of all accidents involve the vehicle emerging from the junction looking but failing to see, something which David Jamieson MP; Road Safety Minister until May 2005 recently said "should no longer be an acceptable excuse from motorists involved in accidents anymore".

BMF South West Conference

Minister brings motorcycling into the mainstream in the South West with a little help from LD.
24 February Conference report

David Jamieson MP Parliamentary Under Secretary of State For Transport - Keynote Speaker announces new national strategy in Taunton.

Steve Ross, Head of LD's Motorcycle Claims Group, organised a conference that brought together motorcycle riders, business and local government to find ways of working in partnership for better biking in the South West. The conference identified the promotional value of motorcycling's employment, economic, environmental and social benefits and sought to engage business and local government in improving rider safety and promoting better biking.

David Jamieson, Transport Minister, attended and spoke about the publication of the UK's first ever-National Motorcycling Strategy. The strategy is designed to ensure the "mainstreaming" of motorcycling as a means of transport. Reported in the biking press as, 'No10 Opens the Door to Biking', it has been heralded as the end result of years of close consultation and co-operation between Government and the world of motorcycling.

David Jamieson told the conference in Taunton he was delighted to be asked to give the keynote speech because it is a very exciting time for motorcycling. He thanked the BMF, as a member of the Advisory Group on Motorcycling, on its contribution to the strategy.

Also attending and working hard on the day for LD were Judith Kelbie and Beckie Griffiths who heard David Jamieson say: -

"We've always regarded motorcycling as an affordable alternative to the car, but it has traditionally sat on the side lines of transport policy. This is in spite of the fact that these days, it provides the means to travel relatively quickly in congested traffic conditions. And there are of course, many motorcyclists who simply ride for pleasure, enjoying the sense of independence and freedom it gives them.

Against this background, we felt it was important for us to plan properly for the future of motorcycling. To do this, we needed to "mainstream" motorcycling. This means all organisations involved in the development and implementation of transport policy should now recognise motorcycling as a legitimate mode of transport.

To this end, the strategy sets out a framework for action over the next few years. Many of these actions are for central Government to implement. The needs of motorcyclists are not identical to other forms of motorised transport. The central planning guidance we give to local authorities must take account of this fact".

Other speakers identified safety as a top priority for all, as well as the need to improve facilities for the many motorcyclists who ride the country's roads on a daily basis. Poor road maintenance has been a key issue for motorcyclists in this respect. UK roads should be maintained properly for the benefit of all road users.

Terry Beale, Senior Highways Engineer at Somerset County Council said, "Although motorcyclists correspond to just 1% of all road traffic, they account for 20% of the fatalities. No one can ignore the fact that one in five of all deaths on the road is a motorcyclist. All at the conference agreed that we must take steps to address this problem".

Delegates at the conference heard the Minister acknowledge that too many accidents are the unfortunate result of the attitude and behaviour of motorcyclists themselves. There was much support for the Ministers call to find ways of changing the way people think and behave.

Mr. Jamieson also acknowledged that problems for motorcycling are not caused by the few bad riders saying:

"Bad attitude and behaviour on the road isn't of course, confined to a small minority of motorcyclists. For a driver to injure a motorcyclist because he "looked but didn't 't see" is an unacceptable excuse. The Hazard Perception element of the Driving Test has been a major step forward in this respect - testing how well vulnerable road users, including motorcyclists, are spotted and given due care by test candidates.

We plan for the Highway Code to be revised to reinforce still further the need to take care when around vulnerable road users. And we also plan to strengthen our efforts to ensure existing drivers are on the continual look out for motorcyclists by developing further publicity material. These are all things Government can do. But there are areas where the industry can help. For example, motorcycle design is discussed in the strategy. Working together with stakeholders, we want to help develop better safety features for motorbikes.

And there are other areas where industry is better placed than us to take forward initiatives. For example, manufacturers and retailers should promote the full range of bikes available to riders. There will be many riders for whom a sports bike is not the best choice of model. If the person wants it for commuting in city traffic for example, they might well benefit from or indeed prefer a very different style of bike.

One-way to do this is engage with the press better. They can help us engender responsible attitudes. And there is a special role for the user groups - like the BMF and the Motorcycle Action Group - in persuading riders to avoid anti-social behaviour, which just gives riders a bad name. Riding too fast in convoy in the countryside with illegal exhausts is a prime example. We don't want to be killjoys. There is nothing wrong with riding bikes for pleasure. But public roads can't be used as race tracks".

Elona Kemp, Director of PRIDE Rider Training, was pleased to hear David Jamieson say "Another way of addressing this problem of attitude and behaviour is to provide better training and education for riders. So for offenders convicted of speeding, or careless and inconsiderate driving - we' re seeking powers in the Road Safety Bill for the courts to be able to offer offenders a Rider Improvement Course. This would be offered in conjunction with a reduction in disqualification or penalty points. We also intend to use publicity material to encourage all riders to improve their skills".

Paul Branson, of Branson's Motorcycles Yeovil, said "We tell riders to ride the best they can - this strategy is doing that too - it was great to be talked to as partners by the Minister who agreed that safe riding is fun; power is not the issue it's the rider getting it right that matters and if riders go out their way to get it right then their entitled to expect Government to get other road users to respect our right to ride".

Neil Keeble, Retail Operations Manager for Honda UK, said "I believe that to safeguard the future of motorcycling as a leisure activity or as a transport solution, Forums such as this are a must and I believe other local regions should look at what we achieved today and follow this excellent initiative, I was pleased to see such a healthy attendance and I will be working closely in the near future with people I met today".

Dave Gollicker, Communications Manager for the Avon and Somerset Safety Camera Partnership, a keen motorcyclist himself said, "It was interesting to learn that a previous Plymouth MP, who like David Jamieson was a transport Minister, gave the country the Highway Code. David Jamieson told our Forum that he was standing down at the next election. I only hope that his successor takes forward all that is positive in the National Motorcycling Strategy. I believe this could be David Jamieson's legacy to motorcycling - mainstreaming it into British transport planning and our national culture because safe riding has so much to offer our society".

Simon Wilkinson, Chief Executive of the BMF Biker Legal Line, said: "The BMF welcomes the recognition by the Government in the National Motorcycling Strategy that motorcycling should be seen as a mainstream mode of transport and considers this a significant step forward in addressing the issues that face transport in the South West. We are pleased that David Jamieson addressed our first South West conference in Taunton which seeks to bring riders, business and local government together to plan a strategy for improving and promoting better biking in this area were there are already strong links developing between the BMF and Somerset County Council and the local Safety Camera Partnership".

Local Orchard FM traffic reporter Andrew Searle, riding the V and J Superbikes Honda 1000cc rides daily in all conditions and all weathers. Andrew said "This was positive motorcycling at its best; ideas and starting points from people that motorcycling really matters to - from all walks of life and areas of business, wanting to get it right for the future"

The conference saw exhibits from the Safety Camera Partnership; Motorcycle News and other local organisations including a new project in North Taunton to train young riders.

The conference ended with pledges of financial support from delegates for a regional motorcycle forum, to be organised by Steve Ross which will meet later in the spring to ensure that the South West's riders and beyond benefit from better biking in the South West. Steve Ross has been asked to speak to the BMF Council - the governing body of the BMF about how he organised the conference and he has been invited to help organise similar conferences in the other 9 regions of the BMF.

A picture from the conference, featuring Simon Wilkinson of the BMF and the Minister, was used in an article on the Motorcycling Strategy in this week's Motor Cycle News (MCN) - the national bike paper. Steve Ross said "The BMF are absolutely delighted about this - a two page feature covered the strategy and not only were BMF mentioned as an architect of the strategy, the photograph from our conference in Taunton put the BMF Chief Executive in the spotlight, right next to the Minister, at what is the most significant development in positive motorcycling policy in BMF history ".

As a consequence of preparing the conference Steve is in personal contact with representatives of over 40 riding organisations; businesses and local government decision makers; has been invited to attend an industry conference about highway design; is visiting (with Mike Bailey) Honda UK, the Motorcycle Industry Association and a number of Bike Dealers in March and April to discuss mutual opportunities; and other opportunities arising from the conference are being pursued.

Steve Ross
Direct Dial 0117 904 7720

BMF conference
Bike LD is helping to bring Motorcycling into the main stream of transport policy.
February 2005

Steve Ross, Head of the Motorcycle Group Bike LD of Lyons Davidson Bristol organised a conference about Motorcycling in the South West as part of his work with the British Motorcyclists Federation - the UK's largest riders rights organisation.

But Steve got even more than he bargained for when he arranged for a keynote speaker to attend. The conference was organised in conjunction with Sarah Thomas of E map publishing - the publishers of Ride, Bike, Performance Bikes and What Bike?

The conference on Thursday 24 February aimed to bring together motorcycle riders, business and local government to find ways of working in partnership for better biking in the South West.

Prior to the Conference Steve said " We are trying to ensure that we recognise motor cycling's employment, environmental, economic and social benefits and we are trying to engage with local government and business to promote better biking. We've got a barrister speaking on road safety being good business; James Llewellyn from Government Office South West on Transport Planning and Simon Wilkinson the Chief Executive of the BMF.

We invited the Parliamentary Under Secretary of State for Transport - Plymouth MP David Jamieson - the Minister responsible for motorcycling to talk to us and he agreed. What we didn't know was that on Tuesday in his role as the Road Safety Minister David Jamieson would announce the publication of the UK's first ever National Motorcycling Strategy designed to ensure the "mainstreaming" of motorcycling as a means of transport. We are now the first group of grass roots motorcyclists and businesses to hear the Minister speak on this vital new national strategy which the BMF have been involved in preparing".

The strategy recognises that an increasing number of people are turning to motorcycles and scooters in order to beat congestion as well as riding bikes just for the sheer fun of it - as can be seen daily on local roads.

The strategy aims to ensure that:
. motorcycling is recognised as a "mainstream" mode of transport.
. Transport planning and infrastructure decisions fully take motorcycling into account.
. Motorcycle design continues to improve.
. The attitudes and behaviour of both drivers and motorcyclists is focused on looking out for each other.
. Pre-test and post-test training continues to improve, making it attractive to riders.
. The motorcycle test is reviewed, including a review of the delivery of the Direct Access Scheme.

Speaking in London at the launch of the Strategy on February 22nd the Minister David Jamieson said: "This is the first national motorcycling strategy and clearly demonstrates the Government's commitment to addressing the concerns of bikers, ensuring that the needs of motorcyclists are fully considered when making future decisions.

For the first time we have a framework of actions to be pursued over the next few years. Working together with the government, the motorcycle industry and motorcycle user groups can help to ensure that motorcycling becomes fully recognised and catered for as a means of transport on our roads."

Simon Wilkinson Chief Executive of the BMF Biker Legal Line said: "The BMF welcomes the recognition by the Government in the National Motorcycling Strategy that motorcycling should be seen as a mainstream mode of transport and considers this a significant step forward in addressing the issues that face transport in the South West. We are pleased that David Jamieson has chosen to address our first South West conference which seeks to bring riders, business and local government together to plan a strategy for improving and promoting better biking in this region".

Full details of the conference and developments arising from it in next bulletin. For photographs from the event please click here



BMF conference photos 

Steve Ross (left) greets David Jamieson MP Road Safety Minister (Centre) with Simon Wilkinson BMF (right)

Simon Wilkinson Chief Executive BMF opens conference at Clerksroom Taunton - Standing right of picture Steve Ross; Jonathan Dingle and Andi Barnes Counsel from Clerksroom and Judith Kelbie.

David Jamieson MP launching his national motorcycle strategy to South West riders; business and local government

James Llewellyn of Government Office South West - Bristol speaking on transport planning

Jonathan Dingle Barrister and Mediator speaking on "Is Road Safety Good Business?"

l to r Paul Branson (Branson's Motorcycles Somerset and Gloucester) Steve Ross (LD) Minister; Neil Keeble (Retail Operations Manager Honda UK; Sasha Fowler (Fowlers of Bristol) Steve Grigg Motorcycle News

BMF team on the day; Minister and Simon Booth (second from right) of Kiddimoto - small bikes for little people

Conference Organiser Steve Ross with speakers Simon Wilkinson BMF; Minister; Jonathan Dingle; Sarah Thomas (Bike Magazine) and James Llewellyn (GOSW)

We arranged for the magazine representatives Steve and Sarah to print off a copy of that days issue of Motor Cycle News which was supportive of the Minister; we bought a frame at the nearby home base on the day and Simon Wilkinson of the BMF did a formal presentation which delighted the Minister and which the delegates also appreciated given one of the calls in the new strategy is for us all to work closer with a more responsible bike press. This photo featured in MCN's coverage of the strategy.

What next? Steve caught grabbing a quick word with David Jamieson at the end of the conference. Race bike provided by Stuart Jacques TFR Racing www.tfrracing.co.uk and photographs by Tom Maxwell of Appletree Studios Taunton.