Mud causes motorcycle to fishtail 

Barry was riding his Kawasaki ZX 1000 motorcycle eastbound on the Culross to Kincardine Road, Alloa. He was in a group with three of his friends, having visited the Ducati Showroom in Glasgow, earlier in the day. While the group were making their way back to Dunfermline, they came to a bend in the road where they encountered a large amount of mud, strewn across both lanes but predominantly in the east bound lane. Barry, who was travelling at the back of the group, attempted to navigate safely through the mud. However, his rear wheel lost traction, causing his motorcycle to fishtail. He skilfully regained control, but at this point he had bumped up onto the curb and travelled around thirty yards, scraping along a four-foot-high stone wall before coming to a stop. One of the group, travelling ahead of Barry, described the clumps of mud as being the size of a fist. Each member of the group noted that it was only through luck that the three other riders had managed to avoid coming off.

While Barry’s experience helped him avoid a serious accident, he was unfortunately left with injuries. Barry sustained a severe sprain to his left ankle, soft tissue damage to his right leg, bruising and lacerations to his left shin. The middle finger on his left hand was swollen due to it being dragged along the wall. He was unable to work for a week. As a self-employed business owner, this meant an immediate loss of earnings. Further to this, Barry’s motorcycle was deemed uneconomical to repair by our independent engineer due to the level of damages sustained.

Identifying negligence

Following the accident, Barry waited at the side of the road, firstly for the return of his friends, and then later, for the recovery truck to collect his motorcycle. During this time, the group observed a tractor and trailer enter and exit the adjacent field. The tractor carried out this routine of travelling the same route on numerous occasions, while the group looked on. It soon became clear that this had been the source of the mud on the road. Large clumps of mud were being left in its wake as the driver continued to carry out this routine. Barry and other members from the group confirmed that there was no signage to alert eastbound traffic of the hazard, despite there being signage to alert traffic travelling westbound.

Further to this, no effort had been made to ensure the road was clear and safe for all users, which could have been done by something as simple as periodically sweeping (or shoveling) the road. While it may not be immediately obvious to most road users, a civil claim can in fact be made against owners of farm vehicles and their insurers in such circumstances where a road traffic accident occurs due to such a hazard. This is because it can be argued that the owner of the farm vehicle has been negligent. This type of scenario is not uncommon. Most of us have encountered similar hazards when travelling along country roads, motorcyclist or not, resulting in either an impediment to your progress on the road at best, or a serious accident at worst. Therefore, it is important to remember, and to spread awareness, that fault can be attributed to the farm vehicle when there is a failure to make traffic aware of the upcoming hazard and/or ensure the road is safe for all users when knowingly creating, or knowingly contributing to the creation of, a hazard on the road.

Changing Solicitors

Getting the right result for the motorcyclist

In civil cases in Scotland, the burden of proof rests with the pursuer. The standard of proof is not as high as that of a criminal case, in which the case must be proven beyond reasonable doubt. In civil actions, the case must be proven ‘on the balance of probabilities.’ In Barry’s case, this means he had to prove that it was more likely than not, that his accident had been caused by the negligence of the owner of the tractor. This is where Barry instructed our services.

We intimated a claim against the owner and insurer of the tractor who unsurprisingly denied any responsibility for the accident. They initially argued that the rest of Barry’s group had managed to travel through the area of mud without incident and therefore Barry was to blame. Our team carried out extensive investigations including the ingathering of statements from Barry and each member of his group. We collected images from the scene of the accident and carried out investigations with the Police.

Images from the scene provided clear evidence that the tractor & trailer had been depositing mud on the road when exiting the field on the westbound side of the road, travelling a short distance in the eastbound lane and returning to repeat the process. As noted, there was a sign on the opposing carriageway to alert westbound traffic of the hazard, therefore it was clear the owner of the tractor was aware of their duty to ensure all road users were made aware of the hazard. Further to this, all members of the group, including Barry, provided a consistent and credible version of events and were prepared to give evidence in court should the claim proceed to that stage. Therefore, we were satisfied that should the claim proceed to court, there was enough evidence to persuade a Sheriff that, more likely than not, the accident had been caused as a result of the mud on the road, and not as a result of Barry’s riding. If anything, Barry’s riding prevented him from sustaining more serious injuries.

We began liability discussions with the insurer, however liability remained in dispute and we were provided with details of their nominated solicitors to raise court proceedings. We raised court proceedings and began negotiations with the nominated solicitors. They initially held the same position, in that Barry had been responsible for the accident given the rest of his group made it through the mud without incident. They later argued that Barry’s accident had occurred before he reached the area of mud on the road. While the evidence appeared to be strongly in favour of Barry’s version of events, should a claim proceed to court, the Sheriff will always consider if there is any ‘independent’ evidence, for example, a passing motorist who has no connection to either party.

While the images were persuasive independent evidence that there had been significant deposits of mud on the road resulting from the movements of the tractor & trailer, there was no independent evidence to support Barry’s claim that the accident had occurred while he was travelling through the mud. It was therefore necessary, as in every case, to assess the risk of proceeding to court and determine the appropriate strategy.

In short, the team decided to put forward what is known as a ‘pursuer’s offer’, reflecting full liability on behalf of the owner of the tractor and with a sum that the court would foreseeably award. This was met with no confirmed acceptance or rejection, only significant delays. After a period of continued delays to court procedures and protracted negotiations over liability and quantum, parties were at an impasse.

Motorcycling Injuries

Barry was delighted with the outcome

Around a week before the case was due to be heard in court, negotiations intensified, as would ordinarily be the case given the associated cost risks to both sides for proceeding with an evidential hearing. We were satisfied that Barry’s case was a strong one, and as such we maintained our position on liability and quantum. While we were not prepared to compromise on these points as this would have an impact on the level of compensation that Barry would receive, we were prepared to negotiate where our expenses were concerned. At this stage, the claim had been ongoing for nearly two years from the date of our original ‘pursuer’s offer’. While this is not an uncommon lifecycle for a claim, there are rules in place which require that if an offer is going to be accepted, it ought to be done so within a reasonable period of time, which is in the region of 2 to 4 weeks. If an offer is accepted outwith this period, then the pursuer is entitled to additional expenses.

In an effort to compromise with the other side’s solicitors, we were prepared to renew the offer to the current date, approximately 1 week before the court hearing, meaning that we would forego those additional expenses. This strategy worked, and although it was nearly two years down the line, the original offer was accepted by the other side.

Barry was delighted with the outcome and the service he had received from Motorcycle Law Scotland. That said, it highlights the inefficiencies that exist when dealing with large panel solicitor firms and even larger insurance companies. While Barry eventually ended up with a great result, it would be naïve to suggest that the same result could not have been achieved much earlier, arguably as much as two years earlier, if the claim had been dealt with more effectively by the other side.

Our Award Winning Team

Brenda Mitchell - Senior Partner

Brenda Mitchell

Senior Partner

Brenda has been a Personal Injury Lawyer for over 35 years and for the last 20 years has specialised representing injured motorcyclists, cyclists and pedestrians.



Jodi Gordon - Partner

Jodi Gordon

Partner

Jodi has predominantly represented cyclists involved in road traffic collisions and specialises in assisting those who have suffered very serious and complex injury.

Thomas Mitchell - Associate

Thomas Mitchell

Partner

Thomas represents clients who have been involved in road traffic incidents and he specialises in representing vulnerable road users such as pedestrians, cyclists and motorcyclists.

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