Mon Oct 27, 2008 1:32 pm
Right, I have done a brief bit of caselaw reserach, and contrary to my expectations, I could not find a case on all fours with yours, but the overriding suggestion would be that you will be found to be upto 50% at fault. This would mean you could recover 50% of the value of your losses from her insurers and she would recover 50% of the value of her claim from your insurers. This will leave your no-claims discount affected a your insurers will have tp pay out money they cannot recover.
I would not be able to act under your legal expenses policy as it is common practice for the legal expenses insurers to only agree to indemnify a solicitor who is on their pre-approved panel. So they restrict your choice to a degree.
Having done some research, the nearest cases I can find involved a motorcyclist being in the position the thrid party was on your claim.
The case is called Dolby v Milner 1996 and it is a Court of Appeal decision, so it has some clout.
The circumstances are that the Claimant driving a car was turning right into a major road (same as you were). He had therefore been under a continuing obligation to give way. The Defendant riding a motorcycle was coming from his right. The Claimant pulled out and was struck by the approching motoryclist.
It was held that although the defendant had been travelling well in excess of the speed limit and had failed to take evasive action, the motorcycle had been visible from 95 yards away and the Claimant ought to have seen him. Liability was apportioned 75% against the Claimant car driver and 25% to the Defendant motorcyclist.
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Another case with some similarities is Hardy v Walker 1984 CA (also Court of Appeal decision).
The Claimant riding a motorcycle overtook another car on a blind corner whilst riding between 55-60mph. The Defendant driving a car was pulling out from a junction on the Claimant's left hand side. The Defendant did not stop and there was a collision. The judge held the Claimant on the bike 2/3 to blame with the Defendant in the car who had been pulling out 1/3 to blame.
The motorcyclist appealed, arguing that no matter what speed he was doing, the collision still would have occurred due to the Defendant pulling out on him. The court of appeal HELD that the appeal was dismissed. The court stated that had he been going slower, the accident could have been avoided, so the original apportionment of blame stood.
I personally think your case falls somewhere into the middle ground here, providing you have some photos showing that teh crest of the hill she has come over is very close to the driveway you have pulled from. If you have a relatively unrestricted view to your right and she would be visible for some time then you are knackered.
Make sure you take pics of the skidmarks left by your car as this shows how far out you where when hit by her,but the crux of your case is proving that when you started pulling from your driveway, having made diligent checks due to the restricted view, she was not in sight when you started pulling out.
If I do discover any other useful caselaw I shall of course let you know. If you can prove she was not in sight then you could do better than 50/50.
