Accident Due to Negligent Overtake - Liability Question

[FastShow]

HI folks, just after a bit of a second opinion after my wife's vehicle was hit by a car yesterday.

A very brief description of events is as follows:

• Wife attempting to pull out of single-track lane onto B-road
• Incredibly limited visibility to left and right due to foliage and only 70m visibility to the right (measured) due to steep brow of a hump-backed railway bridge
• Wife checks right, sees lorry cresting bridge
• Wife checks left, sees road clear
• Wife checks right, lorry is indicating left into her junction and has slowed to a near stop
• Wife pulls out into B-road, around the front of the slowing lorry
• Muppet pulls out from behind lorry into opposing lane and hits my wife's car

The below image shows the events with the end of the arrows showing where the vehicles ended up:



Now because my wife was leaving a minor road and entering a (slightly more) major road the insurance companies consider her entirely at fault, despite the fact that:

• There is a blind crest 70m to the right of the junction on a 60mph road which means a very prompt and speedy exit from this junction is required at all times
• There is dense foliage to the left and right restricting visibility in any case
• At no point was the Third Party visible until after they struck my wife's car (it takes 2.6s for a vehicle to crest the hill and reach the junction at 60mph, but the Third Party was invisible behind the oncoming lorry at all times in any case)
• The Third Party admitted liability at the scene and was incredibly apologetic throughout, accepting that he couldn't see me when the overtake manoeuvre began

The above representations have been made to the insurance company but they have dug their heels in saying that it's my wife's fault and that's that. Just wondered if anyone else had a view?

Edited by FastShow on Tuesday 27th February 09:39

[kiethton]

Where was the damage to your wife's car, side or front?

If the latter you can argue that she was firmly established in her own lane, ignoring where she had come from

[FastShow]

It was a front collision (both airbags went off).

[Chongwong]

It is perhaps not the wisest place to overtake although broken white lines dictate that it is legal to do so if the road ahead is clear. It is your wife's fault, if she can't clearly see the whole road she should not leave the junction. You should not enter/exit any road without making sure that your path is clear, she took a gamble in assuming that nothing was overtaking the lorry, your wife is lucky that she is still alive, and fortunate not to be done with Driving without due care and attention.


I am not a lawyer, and this is purely my opinion.

[TooMany2cvs]

Whether the other driver is at fault or not is really a separate question, and between their insurer and them.

Your wife certainly was at fault. She pulled out of a minor side road onto a more major road, when she could not see if it was clear to do so... and it wasn't. Wave goodbye to NCB and excess.

[Collectingbrass]

FastShow said:

Wife checks right, lorry is indicating left into her junction and has slowed to a near stop

Sorry, but for the guy behind this doesn't necessarily mean the lorry is turning left, he could well have read it as the lorry pulling over to let him past. Also, although the lorry has almost stopped he hasn't committed to the turn - I'd have waited till I saw the front wheels turn left too at least.

Overall your wife has pulled from a minor road and the insurers will most likely rule in the 3rd party's favour. I would have thought that even if they accepted the overtake was iffy the best you would get would be 50/50 so I doubt it's worth pursuing financially.

It would though be worth looking at the approach signage and road markings on the 3rd party's approach - did he cross a solid white centre line or a continous lined approach to a turn right bay in the centre of the road?

[Pinkie15]

Not sure on this, but one question; could the lorry turn left into that road with you wife's car sat there waiting to pull out ?

I guess if the lorry was not able to turn in unless your wife pulled out it might make a difference, but clearly you'd need the lorry driver statement to confirm this.

[TooMany2cvs]

Pinkie15 said:

Not sure on this, but one question; could the lorry turn left into that road with you wife's car sat there waiting to pull out ?

That's for the truck driver to decide, not the missus.

There's also the question of whether the truck would need to use both side of the road he's turning off, in order to swing across. If he does, then the missus is best off where she is - stationary obstacle for the truck to negotiate. The fact he apparently stopped short of the junction suggests he probably did, but was balked from doing so by the car behind starting to overtake.

[FastShow]

Chongwong said:

It is perhaps not the wisest place to overtake although broken white lines dictate that it is legal to do so if the road ahead is clear. It is your wife's fault, if she can't clearly see the whole road she should not leave the junction. You should not enter/exit any road without making sure that your path is clear, she took a gamble in assuming that nothing was overtaking the lorry, your wife is lucky that she is still alive, and fortunate not to be done with Driving without due care and attention.


I am not a lawyer, and this is purely my opinion.

As I say, there is 70m visibility to the right: from a completely clear road to a car being at the junction my wife was leaving you have no more than 2.6s (measured and with video to prove it). The lorry obscured visibility of anything behind it and to allow the lorry in my wife needed to leave the junction to allow it to pull in. I'm not sure what else she could have done at this point? The options appear to be wait forever as there is now no visibility to the right, or to pull around the lorry and enter her lane?

Knowing the junction very well I'm sympathetic as I know I wouldn't have behaved any differently but as I stated in the OP, on paper I accept the insurance company are going to class my wife as liable, it just feels particularly unfair in this case.

[Gavia]

Most likely case law / precedent set in Harding vs Hinchcliffe. Emerging driver 100% at fault.

Low level court can not go against this precedent. Insurance company would lose if they challenged it and would need something significant to be able to appeal to a higher court. I don’t think an insurer would gain anything by pursuing this, other than incurring significant cost and probably losing anyway.

[Chongwong]

FastShow said:

As I say, there is 70m visibility to the right: from a completely clear road to a car being at the junction my wife was leaving you have no more than 2.6s (measured and with video to prove it). The lorry obscured visibility of anything behind it and to allow the lorry in my wife needed to leave the junction to allow it to pull in. I'm not sure what else she could have done at this point? The options appear to be wait forever as there is now no visibility to the right, or to pull around the lorry and enter her lane?

Knowing the junction very well I'm sympathetic as I know I wouldn't have behaved any differently but as I stated in the OP, on paper I accept the insurance company are going to class my wife as liable, it just feels particularly unfair in this case.

I fully understand what you are saying, however that meager 2.6 seconds sight line could well have been the difference between crash and no crash, with the lorry in the way that view could well be cut in half or more.

If you can't see past another vehicle you treat it as you would with coming out of a blind junction, or past a parked vehicle, you slowly edge out until you can see where you are going, treating the lorry as you would any wall or hedgerow that is otherwise blocking your view. That is the ONLY safe option.

[vonhosen]

Gavia said:

Most likely case law / precedent set in Harding vs Hinchcliffe. Emerging driver 100% at fault.

Low level court can not go against this precedent. Insurance company would lose if they challenged it and would need something significant to be able to appeal to a higher court. I don’t think an insurer would gain anything by pursuing this, other than incurring significant cost and probably losing anyway.

In that case the bus could physically enter the side road with the other vehicle in it, the OP is saying there wasn't room for the LGV to enter with his wife there, which would make it different. Each case rests on it's own facts.
However she didn't wait for the lorry to stop & didn't then take great care emerging.
The insurance company will likely go for the path of least resistance.

[FastShow]

Here is a picture of the view from the junction; I have a video which makes an even better case for there being no other option as well but it identifies the location so I'm not keen to put it on t'internet.



At the point my wife began the manoeuvre the Third Party hadn't even crested the hill so not sure what else she could have done.

[vonhosen]

FastShow said:

Here is a picture of the view from the junction; I have a video which makes an even better case for there being no other option as well but it identifies the location so I'm not keen to put it on t'internet.



At the point my wife began the manoeuvre the Third Party hadn't even crested the hill so not sure what else she could have done.

She could have waited for the lorry to physically stop & then peeped & creeped so as to reduce the chance of what happened actually happening.
Can you honestly not see ANY options at all that she could have done something differently & there have been no collision as a result of that different choice?

[Voldemort]

FastShow said:

Just wondered if anyone else had a view?

Your wife was lucky the police didn't attend as they would have prosecuted her for dangerous driving.

[cptsideways]

I do believe its 100% your wife's fault. She effectively pulled into a carriageway whilst not being able to see it was clear to do so.

Assumptions are the mother of all fxxx ups, as they say

If insurance decide 50-50 then that is a bonus

[vonhosen]

Voldemort said:

FastShow said:

Just wondered if anyone else had a view?

Your wife was lucky the police didn't attend as they would have prosecuted her for dangerous driving.

Unlikely.
They would more likely have seen a without due care by both drivers & either reported both or just left it to the insurance companies to sort out. With just the testimony of the two parties most likely the latter.

[FastShow]

vonhosen said:

She could have waited for the lorry to physically stop & then peeped & creeped so as to reduce the chance of what happened actually happening.

1) A lorry being stopped in the middle of a 60mph main road within a few metres of a blind crest seems MORE dangerous to me than what my wife actually did
2) If she peeped and creeped, by the time she could have seen the Third Party he'd have hit her offside front instead of middle front (arguably this is better than what happened, but still an accident nonetheless)
3) There is still a not insubstantial amount of traffic coming from the left during all of this

Edited by FastShow on Tuesday 27th February 10:11

[FastShow]

Voldemort said:

Your wife was lucky the police didn't attend as they would have prosecuted her for dangerous driving.

She reported it to the police herself. They weren't interested.

[vonhosen]

FastShow said:

vonhosen said:

She could have waited for the lorry to physically stop & then peeped & creeped so as to reduce the chance of what happened actually happening.

1) A lorry being stopped in the main road within a few metres of a blind crest seems MORE dangerous to me than what my wife actually did
2) If she peeped and creeped, by the time she could have seen the Third Party he'd have hit her offside front instead of middle front (arguably this is better than what happened, but still an accident nonetheless)
3) There is still a not insubstantial amount of traffic coming from the left during all of this

1) You said it was travelling at speed already it was almost stopped.
2) Her slower approach (creep,stop,creep,stop,creep,stop) would have given the other driver more time/space etc.
3) The above approach would have helped with that also. If she was emerging quickly because there was also traffic coming from the left that makes matters even worse for her. Less speed, more space, more time for everyone is the answer in these situations if you want collisions to be avoided.