On Sun, 13 Apr 2008 06:20:09 -0500, Geoff Lane <[email hidden]>
Quoted message said:Tom Crispin <[email hidden]> wrote in
news:[email hidden]:
Quoted message said:Quoted message said:Now Davis v Schrogin deals with very slow speed filtering where the
driver makes a manoeuvre (a U-turn in Schrogin's case) that could not
have been anticipated. However, in your case the van's manoeuvre could
have been anticipated (he turned right at a junction!) so I suspect
Davis v Schrogin won't apply.
He didn't turn right at a junction. He swerved across the road to get
into a loading bay on the opposite side. I was ahead or nearly ahead
of the van when he started his manoeuvre. I was clobbered on the back
of my head by his wing mirror just before I went down.
Ah, my apologies! That, of course, changes everything and you may well
be able to use Davis v Schrogin. AFAICT, the essential elements of that
are that the driver's manoeuvre could not be anticipated, that the
traffic was moving "at a crawl", that the rider was filtering past that
traffic at a reasonable speed, and there was insufficient time for the
rider to react. If these four elements fit, I truly hope it works out
for you. However, the driver has only to show that one of these elements
were not met (e.g. that on the balance of probability he was signalling
- and so his manoeuvre could be anticipated) and AFAICT Davis v Schrogin
goes out of the window. You say he is both claiming that he was
signalling and that you were travelling with excessive speed - so you've
probably got a fight on your hands. At the very least, Davis v Schrogin
puts the onus on the driver to carefully check before manoeuvering,
which you can hopefully use to lever a settlement more in your favour.
Hopefully, you'll at least be able to fend off their citing Powell v
Moody by showing the conditions of that case are very different to those
of your own, and if that fails you can use Leeson v Bevis and Tolchard
to move the split to 50:50.
That said, here's a few more thoughts: He says that he checked and
didn't see you yet he also claims that you were travelling excessively
fast. If he didn't see you, how can he make such a claim? If he did see
you, why did he continue the manoeuvre? At the very least, his testimony
is inconsistent, which should do wonders to undermine his credibility
and thus his claim of signalling.
Here are full details of his claim.
1. It is admitted than an accident occurred on the day, and at
the palce and between the vehicles as alleged in the particulars of
the claim.
2. It is denied that the defendent was negligent as alleged in
the particulars of claim or at all. Each and every allegation of
negligence alleged against the defendent is specifically denied. The
defendent will say that he stopped and checked to ensure the road was
clear, indicated and proceeded to turn right into the loading bay on
the opposite side of the road when the claimant cyclist, in overtaking
the defendent's turning vehicle, collided with the defendents
correctly proceeding vehicle.
3. The accident was caused wholly or in part by the negligence of
the claimant.
Particulars of Negligence
The claimant was negligent in that he:
i) Proceeded to overtake the defendent's vehicle despite the
defendent indicating his intention to turn right;
ii) Attempted to overtake the defendent's turning vehicle when it
was clearly unsafe to do so;
iii) Drove too fast in all the due circumstances;
iv) Failed to have regard for other road users and, in particular,
the defendant;
v) Failed to stop, slow down or in any way howsoever to manage or
control his bicycle so as to avoid colliding with the defendant's
vehicle.
4. The defendant will rely on the case of Powell v Moody (1966)
in which an overtaking motorcyclist was held 80% liable when colliding
with a turning motorist.
5. No admissions are made as to any matter of injury, loss or
damage whether as alleged or at all and the claimant is put to strict
proof in this regard. Causation is denied.
6. No admissions are made as to the injuries as set out in the
medical reports of Mr T W Odedun and the claimant is put to strict
proof in this regard. The defendant may seek to put questions to the
claimant's expert and/or seek to rely on their own medical evidence.
7. The claimant's claim for repairs to damaged bicycle as pleaded
in item 1 of the schedule of special damages annexed to the
particulars of the claim can be agreed, subject to liability.
8. The claimant's claim for miscellaneous expenses for the
pleaded sum of £100 is not agreed as no documentation or breakdown has
been provided as to how the claimant has arrived at this figure. The
claimant is put to strict proof as to this head of claim.
9. The claimant's claim for damaged key ring for the pleaded sum
of 50 pence is not agreed as no documentation has beed disclosed in
support of this head of claim.
10. The claimant's claim for damaged trousers, damaged cycling
shoes, cycling shoes cleats and waterproof panniers as pleaded in
items 4 to 7 of the schedule of special damages annexed to the
particulars of claim can be agreed, subject to liability.
11. The claimant's claim for interest can be agreed under Section
69 of The County Court's Act 1984 at such rate of such period as the
court deems fit.
Here is a diagram of the incident:
www.johnballcycling.org.uk/photos/mutilation/crash
The diagram is close to scale. It was drawn by tracing over a Google
Earth image. The orange line shows by progress down the road, passing
crawling or stationary traffic. The blue line shows the progress or
intended path of the van driver.
I claim that the van driver was not indicating right when I passed
him, and would not have been as he was not in the correct position to
turn into the parking bay. If he later indicated, it was after I had
passed him or was alongside. Critically, he pulled out earlier than
could have reasonably been anticipated to reach the parking bay
because the pedestrian lights had turned red, and he saw an
opportunity to overtake one or two stationary vehicles to reach the
loading bay while oncoming traffic was held up at the lights.
The witness, standing at the bus stop, observed my entire progress
from the roundabout and the crash. She is known to me being the
mother of a child in my class.
After the van had stopped and I was on the road it was not indicating.
The driver appologised to me and I told him he was not indicating. He
said that he was to which I replied that in that case his indicators
were not working. He walked over to his van, turned on the right
turning indicators to show that they were working. If he had been
indicating, he cancelled the indicators as soon as he realised he had
hit me. This I find very dubious.
The fact that the van ran over my front wheel is evidence that I was
filtering slowly. Had I been cycling at a faster speed the bike would
have not ended up under the van.
There was no way that I could have reasonably anticipated the actions
of the defendant.
