*** TIPS ON TUESDAY *** Filtering & Case Law Precedents As a wholly inaccurate filtering article has reared its head again, we're going to look over the thorny issue of who's responsible in filtering accidents.
We thought this particular article was dead and buried in the mists of time but as is increasingly the way of the internet, search engines turn up old stories which are then accepted as g...ospel truth as they go viral.
In this case, we first came across the article which concerns filtering back in 2007. It can be found on the Motorbikes Today website (I'm not going to further propagate the link) and written by someone called Simon Bradley, who is a former "endurance racer, Nurburgring riding coach and occasional advanced instructor".
The article states that the law on filtering has been changed by a case heard in the Court of Appeal back in 2006.
The writer says this:
"...in the case of Davis vs Shrogin, the judge found that "a filtering motorcyclist passing stationary or very slow moving traffic could not be to blame if a collision occurred if the rider had no chance to take avoiding action"."
Bradley then jumped to the conclusion:
"Ladies and Gentlemen, filtering past stationary traffic is no longer a grey area - it's completely legal".
Unfortunately, this statement is far from accurate as the legal eagles on our discussion board back in 2007 explained.
First of all there's no "change in the law" as the article claims. The Highway Code says in the section entitled 'Road users requiring extra care; Section 211 Motorcyclists and cyclists':
"It is often difficult to see motorcyclists and cyclists, especially when they are coming up from behind, coming out of junctions, overtaking you or filtering through traffic. Always look out for them before you emerge from a junction; they could be approaching faster than you think. When turning right across a line of slow-moving or stationary traffic, look out for cyclists or motorcyclists on the inside of the traffic you are crossing. Be especially careful when turning, and when changing direction or lane. Be sure to check mirrors and blind spots carefully."
Over to former law student 'Biker Breaker':
"Magistrate's court, crown court and county court do not provide binding judgements, even on themselves although judges will look at previous decisions if the case is sufficiently similar.
Higher court judgements, such as the Court of Appeal, are binding on themselves and lower courts except for the House of Lords who can change their minds any time they want unless contravening statute or, nowadays, EU law and judgements.
"Until this happens, or the law changes, the last judgement stands except [where] it can be shown that the case has enough differences to claim it should be decided on its own facts [and not be bound by precedent... If the manoeuvre was felt to be sufficiently different, the judge can distinguish it from the previous case by pointing out the relevant differences and not be bound by it."
In other words, each case will be judged on its merits. The precise circumstances of the accident involving Messrs Schrogin and Davis was that Mr Shroggin was stopped in a traffic jam in his car on a straight road, whilst Davis was overtaking the stationary queue on his motorcycle as nothing was coming in the opposite direction.
Mr Schrogin decided to leave the queue by executing a U-turn and failed to see the approaching bike, accepting in evidence that he had looked the wrong way. Mr Davis admitted seeing Mr Schrogin's car moving towards the kerb in preparation for the U-turn but claimed that as he was no more than five cars' length back from the point of impact, he had no chance to stop.
The trial judge found Mr Schrogin negligent in making the U-turn without looking properly, and that Mr Davis was not to blame. Mr Schrogin argued that Mr Davis had accepted that he had paused to react and was contributory negligent.
The case went to the Court of Appeal which held that Mr Davis was so close to the point of impact that he could not have avoided the collision, so there was no basis for a finding of contributory negligence.
The worrying thing is that this article has been written in such a way that it seems to give carte blanche to riders to filter and be damned to the consequences. We particularly disliked the attitude of the writer in penning this kind of statement:
"In 1972 a second case changed the finding, making it 50/50. Better but still not really acceptable. I mean, you're filtering past stationary cars and some clown t-bones you and you have to pick up half the bill?"
One thing we always suggest is that riders try to see any potentially hazardous situation from the other road user's perspective. The writer is probably referring to the case of Leeson vs. Bevis Transport (1972), where the motorcyclist was found equally responsible for an accident where a van driver emerged from a side road. Let's look from the van driver's perspective. It would be easy to rewrite the statement above as:
"YI'm trying to pull out of a side-turning into a busy street with parked vehicles on either side making it almost impossible to see, and some clown filtering past the bus that has kindly let me out t-bones me and I have to pick up half the bill?"
A key point in this particular case was almost certainly that Mr Schrogin accepted that he hadn't looked properly. Had he not accepted blame in that way, things might have been different, because we were rather surprised that the rider wasn't held to be at least partially responsible.
Given five car lengths distance in which to stop, a reasonably skilled and alert rider prepared to brake hard could have stopped safely from any speed up to about 30mph. The implication is either that the rider wasn't alert, wasn't skilled... or was travelling faster than 30mph past a stationary queue. For the record, during 16 years and about half a million miles of despatching the only thing I ever hit when filtering was a taxi driver's door on a one way street when he opened it to empty his ash tray.
So there you have it. Case law sets a precedent but a precedent that only applies in identical circumstances and the assessment of an individual case will depend heavily on statements and witnesses.
And in any case, being on the right side of insurance claim doesn't mean that doing nothing to maintain our own safety in any riding situation is the right and sensible option! If an injury is on the cards if things go wrong - and filtering accidents lead to more injuries and fatalities than most riders realise - then avoiding getting into a potentially dangerous situation is something worth avoiding!
There's not much point in being in the legal 'right' if we're carted off in a pine box!
