Brenda Mitchell: Judgment in motorcycle case ‘careful and well thought out’



Brenda Mitchell

Brenda Mitchell analyses a recent case in which the sheriff found in favour of an injured motorcyclist.

I have represented injured motorcyclists for over 30 years as a specialist personal injury lawyer. I ride a motorcycle, am an advanced rider and a member of IAM RoadSmart. What saddens me is motorcyclists are often considered to be reckless for no reason other than their preferred mode of transport.

Drivers complain that motorcyclists queue jump and overtake out of turn, but in truth one of the many benefits of riding a motorcycle is the ability to make safe progress. Motorcyclists recognise their vulnerability to serious injury and contrary to popular belief, they do care a great deal about their own safety and the safety of others on the roads. Drivers can, on occasion, feel apprehensive around motorcyclists but for one driver her apprehension led to serious consequences for a visiting motorcyclist from Northern Ireland.

On 29 May 2016, Leslie O’Donnell was involved in a serious RTC on the A82 just south of Tarbet. Heading north and accompanied by two fellow motorcyclists, he caught up with a Peugeot travelling at around 50mph. O’Donnell took up a position 50-60m behind the car. The driver became apprehensive when she saw motorcyclists in her mirror and she braked suddenly. In fact, she braked so hard she performed an emergency stop.

O’Donnell hit the car that was stationary in front of him and sustained a severe injury to his right wrist, knee and neck. Liability for the accident was disputed and the case proceeded to Court before Sheriff McGowan who issued his judgment on 21 December 2018.

Leslie O’Donnell v Lisa Smith and Royal and Sun Alliance Insurance PLC

The Sheriff found in favour of the pursuer, Leslie O’Donnell. Sheriff McGowan stated in his judgment that “there is no rule that the collision by one vehicle running into the back of another automatically gave rise to an inference of negligence on the part of the following driver”. It is always necessary to look at the whole circumstances of a collision as no two cases are the same and each is fact sensitive.

He further considered that O’Donnell was riding his motorcycle at around 55mph and was 50-60m behind the vehicle in front. As such, the motorcyclist complied with the Highway Code in relation to stopping distances and the so-called “two second rule”. The accident was caused by the driver’s negligence and the defenders did not make out a case of part-fault.

The Sherriff accepted the pursuer’s averments that there was no legitimate reason for the driver to be apprehensive. There was no criticism of the manner in which the motorcyclists were riding their motorcycles and no reason whatsoever for the driver to brake.

Reference was made to the leading authority, Brown and Lynn v Western SMT Company Limited, which states, “there is no single rule that specifies the distance that should separate two vehicles travelling one behind another. But a following driver should drive in such a manner as to be able to deal with all traffic exigencies reasonably to be anticipated.”

In this case, emergency braking due to apprehension did not fall into reasonably anticipated traffic exigencies and for that reason the motorcyclist recovered damages in full.

This is a careful and well thought out judgment from Sheriff McGowan and will be warmly welcomed by the motorcycling community. Motorcyclists are classed as vulnerable road users because, along with cyclists and pedestrians, they have higher crash and injury rates than vehicle occupants because they do not benefit from all the protective measures, such as seat belts, airbags and other impact protection features. In any collision with a car, the motorcyclist will always come off worse. Although motorcyclists only account for one per cent of total road traffic, they account for around 18 per cent of deaths on the road.

All vulnerable road users, ie motorcyclists, cyclists, pedestrians and horse riders should be treated with great care. The Highway Code Rule 168 advises drivers to maintain a steady course and speed when the vehicle behind is trying to overtake. Speeding up or slowing down when someone is overtaking you is dangerous. O’Donnell was fortunate not to lose his life, but he had to raise his action in court to establish negligence which was consistently denied by the driver’s insurance company.

Brenda Mitchell is a senior partner at Road Traffic Accident Law (Scotland) LLP



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