Driver claiming she blacked out - not liable for crash?!
Discussion
macushla said:
Even if it wasn’t, surely the deliberate crasher would end up paying out of their own pocket for their deliberate act, hardly a clever move. They’ve certainly admitted they were at fault for the crash.
Just out of interest, insurance isn't predicated on negligence. It's not a term that appears in the terms and conditions (of the one I looked at). What it does say is that your insurance will pay out where you have a legal obligation to pay. Perhaps a nuance, but that's what it says.Bert
BertBert said:
Just out of interest, insurance isn't predicated on negligence. It's not a term that appears in the terms and conditions (of the one I looked at). What it does say is that your insurance will pay out where you have a legal obligation to pay. Perhaps a nuance, but that's what it says.
Bert
But isn't a legal obligation to pay predicated on being negligent?Bert
No negligence = no legal obligation to pay.
Cudd Wudd said:
There is an automatism defence, Some details here:
https://www.harpermacleod.co.uk/hm-insights/2017/m...
May give you a bit of helpful info. Medical history/warning signs can be looked at (E.g. did the driver feel poorly prior to deciding to drive) but it can be complicated and therefore costly.
Just to be clear, that's where the defence of automatism did not succeed.https://www.harpermacleod.co.uk/hm-insights/2017/m...
May give you a bit of helpful info. Medical history/warning signs can be looked at (E.g. did the driver feel poorly prior to deciding to drive) but it can be complicated and therefore costly.
Bert
Mandat said:
BertBert said:
Just out of interest, insurance isn't predicated on negligence. It's not a term that appears in the terms and conditions (of the one I looked at). What it does say is that your insurance will pay out where you have a legal obligation to pay. Perhaps a nuance, but that's what it says.
Bert
But isn't a legal obligation to pay predicated on being negligent?Bert
No negligence = no legal obligation to pay.
BertBert said:
Cudd Wudd said:
There is an automatism defence, Some details here:
https://www.harpermacleod.co.uk/hm-insights/2017/m...
May give you a bit of helpful info. Medical history/warning signs can be looked at (E.g. did the driver feel poorly prior to deciding to drive) but it can be complicated and therefore costly.
Just to be clear, that's where the defence of automatism did not succeed.https://www.harpermacleod.co.uk/hm-insights/2017/m...
May give you a bit of helpful info. Medical history/warning signs can be looked at (E.g. did the driver feel poorly prior to deciding to drive) but it can be complicated and therefore costly.
Bert
TwigtheWonderkid said:
macushla said:
TwigtheWonderkid said:
Lots of people get punctures, but most of them manage to control the car. If someone fails to, then maybe they were negligent, because they failed to do what most people do many times a day.
A friend of mine had his car badly damaged by a tyre blowing out on a lorry, and the tyre hitting his car at speed. The lorry pulled over and so did my friend, and took his details. The lorry insurers wouldn't pay....clearly no negligence. The driver has no control over where the bits of tyre end up! If my friend had been a motorcyclist and ended up paralysed as a result...he still would have no claim on the lorry or its insurers!
Negligence is key to any claim against someone else.
Is that true about the lorry scenario? I’d have thought the lack of negligence is because a well maintained lorry will have documented evidence of the safety checks completed on the vehicle including the tyre checks, whereas a car driver won’t be able to provide that evidence, as few if any of us do those checks and are therefore negligent in our safety routine. A friend of mine had his car badly damaged by a tyre blowing out on a lorry, and the tyre hitting his car at speed. The lorry pulled over and so did my friend, and took his details. The lorry insurers wouldn't pay....clearly no negligence. The driver has no control over where the bits of tyre end up! If my friend had been a motorcyclist and ended up paralysed as a result...he still would have no claim on the lorry or its insurers!
Negligence is key to any claim against someone else.
geeks said:
I had a blowout on a new tyre leaving the M1 at Leeds. On the exist slip which is tight right, night time and raining, rear left tyre blew, back of the car went on me without warning, I was lucky no one was alongside or coming the other way, it was a little luck and a little skill that kept me out of a wall. In that scenario, I am not negligent, it was a new tyre that had covered 200 miles and had a bit of metal sticking out of it half in the tread and half in the side wall about the size of a credit card, I had no way of seeing it to avoid it and it was just bad luck. If I had hit someone, would they have had to claim from their own insurance?
Depends...The other side could conceivably argue that competent driver should have been expected to bring the car under control, you didn't, therefore you're negligent.
If inappropriate or illegal speed was a factor, you could be negligent.
But if you did everything that you could reasonably be expected to do, weren't driving like a wally at the point the tyre blew then no, you're not negligent.
Google "negligent", it's not hard to define. If you failed to do something you should have, you're negligent and can be pursued for the other parties losses.
If you weren't negligent, you're not liable. It's a fundamental principle of English law. Since your insurer has a contract with you to indemnify you for your liability, when you're not liable, they are not liable.
So if a driver knew about having blackouts and drove anyway, they are negligent and liable for any accident. But if they had no clue that they might black out, then perhaps one of the incredulous posters would like to explain how that driver has been negligent.
They won't be able to. The driver had no forewarning of the blackout, so is not negligent. No negligence, no liability.
mikeveal said:
geeks said:
I had a blowout on a new tyre leaving the M1 at Leeds. On the exist slip which is tight right, night time and raining, rear left tyre blew, back of the car went on me without warning, I was lucky no one was alongside or coming the other way, it was a little luck and a little skill that kept me out of a wall. In that scenario, I am not negligent, it was a new tyre that had covered 200 miles and had a bit of metal sticking out of it half in the tread and half in the side wall about the size of a credit card, I had no way of seeing it to avoid it and it was just bad luck. If I had hit someone, would they have had to claim from their own insurance?
Depends...The other side could conceivably argue that competent driver should have been expected to bring the car under control, you didn't, therefore you're negligent.
If inappropriate or illegal speed was a factor, you could be negligent.
But if you did everything that you could reasonably be expected to do, weren't driving like a wally at the point the tyre blew then no, you're not negligent.
Google "negligent", it's not hard to define. If you failed to do something you should have, you're negligent and can be pursued for the other parties losses.
If you weren't negligent, you're not liable. It's a fundamental principle of English law. Since your insurer has a contract with you to indemnify you for your liability, when you're not liable, they are not liable.
So if a driver knew about having blackouts and drove anyway, they are negligent and liable for any accident. But if they had no clue that they might black out, then perhaps one of the incredulous posters would like to explain how that driver has been negligent.
They won't be able to. The driver had no forewarning of the blackout, so is not negligent. No negligence, no liability.
I'll be honest, even if I had tapped someone, it wouldn't have even occurred to me that they wouldn't be claiming off my insurance!
Everyday is a school day!
AnotherGareth said:
Alpinestars said:
Huskyman said:
Holding a phone while driving is an offence. See here https://www.gov.uk/using-mobile-phones-when-drivin...
That misrepresents the law. You need to be USING the phone. Not just HOLDING the phone. http://www.legislation.gov.uk/uksi/2003/2695/pdfs/...
Fundamentally, there is no reason for someone to be holding a phone if they are not also using it in some way, either looking at the screen, pressing buttons, or selecting button representations.
This might also help convince you if the words of regulation 110 and S41D RTA1988 don’t.
https://www.cps.gov.uk/legal-guidance/road-traffic...
You could break the law if just holding a phone and not using it, if driving without care and attention - that’s a different point.
Alpinestars said:
AnotherGareth said:
Alpinestars said:
Huskyman said:
Holding a phone while driving is an offence. See here https://www.gov.uk/using-mobile-phones-when-drivin...
That misrepresents the law. You need to be USING the phone. Not just HOLDING the phone. http://www.legislation.gov.uk/uksi/2003/2695/pdfs/...
Fundamentally, there is no reason for someone to be holding a phone if they are not also using it in some way, either looking at the screen, pressing buttons, or selecting button representations.
This might also help convince you if the words of regulation 110 and S41D RTA1988 don’t.
https://www.cps.gov.uk/legal-guidance/road-traffic...
You could break the law if just holding a phone and not using it, if driving without care and attention - that’s a different point.
DWDCA will require more evidence than merely holding it, as would failing to be in proper control of the vehicle.
Additionally you could be using it but not holding it, without it being an offence.
For the mobile phone legislation you need to be using & holding.
mikeveal said:
If you weren't negligent, you're not liable. It's a fundamental principle of English law. Since your insurer has a contract with you to indemnify you for your liability, when you're not liable, they are not liable.
I've been banging this drum for years on PH, on various threads, BMWs crashes on track, flying gazebos hitting Porsches, roof tiles and branches falling on to cars in storms. But the next month, another thread comes up, and people still can't believe the owner of the thing that damaged their car may not automatically be liable. This isn't advanced law for supreme court judges, it's basic law of tort, Donoghue V Stephenson, snails in ginger beer stuff. It's page 1 of your "UK Law For Dummies" book.
TwigtheWonderkid said:
Pro Bono said:
Leicester Loyal said:
TwigtheWonderkid said:
TIf she is telling the truth, she has had no previous health problems, or has but was taking all her medication, then she hasn't done anything wrong. So she isn;t responsible for the damage.
Possibly the most ridiculous comment I've ever read on here. I'm genuinely baffled as to why you consider Twig's comment (which is basically correct) to be `ridiculous'.
geeks said:
mikeveal said:
geeks said:
I had a blowout on a new tyre leaving the M1 at Leeds. On the exist slip which is tight right, night time and raining, rear left tyre blew, back of the car went on me without warning, I was lucky no one was alongside or coming the other way, it was a little luck and a little skill that kept me out of a wall. In that scenario, I am not negligent, it was a new tyre that had covered 200 miles and had a bit of metal sticking out of it half in the tread and half in the side wall about the size of a credit card, I had no way of seeing it to avoid it and it was just bad luck. If I had hit someone, would they have had to claim from their own insurance?
Depends...The other side could conceivably argue that competent driver should have been expected to bring the car under control, you didn't, therefore you're negligent.
If inappropriate or illegal speed was a factor, you could be negligent.
But if you did everything that you could reasonably be expected to do, weren't driving like a wally at the point the tyre blew then no, you're not negligent.
Google "negligent", it's not hard to define. If you failed to do something you should have, you're negligent and can be pursued for the other parties losses.
If you weren't negligent, you're not liable. It's a fundamental principle of English law. Since your insurer has a contract with you to indemnify you for your liability, when you're not liable, they are not liable.
So if a driver knew about having blackouts and drove anyway, they are negligent and liable for any accident. But if they had no clue that they might black out, then perhaps one of the incredulous posters would like to explain how that driver has been negligent.
They won't be able to. The driver had no forewarning of the blackout, so is not negligent. No negligence, no liability.
I'll be honest, even if I had tapped someone, it wouldn't have even occurred to me that they wouldn't be claiming off my insurance!
Everyday is a school day!
Not least, because defending what could be a small claim, could be very costly and makes no economic sense.
geeks said:
I had a blowout on a new tyre leaving the M1 at Leeds. On the exist slip which is tight right, night time and raining, rear left tyre blew, back of the car went on me without warning, I was lucky no one was alongside or coming the other way, it was a little luck and a little skill that kept me out of a wall. In that scenario, I am not negligent, it was a new tyre that had covered 200 miles and had a bit of metal sticking out of it half in the tread and half in the side wall about the size of a credit card, I had no way of seeing it to avoid it and it was just bad luck. If I had hit someone, would they have had to claim from their own insurance?
It's been on here a few times that people have had cars damaged by lorry tyres blowing out, and it's regarded as hard luck - as long as the truck company can show they followed valid checking regimes.selmahoose said:
Mind you, speaking of beliefs, it's surprising how quickly avowed atheists in underwriting offices suddenly develop great faith in The Almighty when faced with a big fat claim.
If you're referring to getting out of claims by citing "act of god", it's an complete urban myth and doesn't happen. There are no act exclusions on any UK policy, and hasn't been for 60 years.Insurance policies have various exclusions, but act of god isn't one of them. In this case, if the insurer of the woman who supposedly blacked out refuses to meet a tp claim, it won't be because of act of god. It'll be because they think she isn't legally liable, and they only cover her legal liability.
When the LIverpool carpark and 1400 something cars burnt down there was some discussion about whether each cars' owners would have to claim on their own policy or if they could claim under the policy of the owner of the Range Rover that caused the fire. I think the conclusion was that only if it could be proven from the burnt out hull of the RR that someone had bodged a job on it that had caused the electrical fire could the 1400 other owners claim off the RR policy, otherwise it would be just their hard luck. Proving that the RR had bodged electrics would be quite a challenge however!
And yes it does seem unfair that if someone with a known health condition drives into a pedestrian as a result of a blackout or similar, leaving them them with a life-changing injury, the victim can claim compensation from the driver's insurance, but if the driver crashes having never previously been known to have a heart condition (or at least never 'fessed up to getting the occasional chest pain that should have been investigated and prevented the accident) and leaves a pedestrian in a wheelchair and out of work, that's just their tough luck. But it seems that's how it goes.
As for the original poster, it sounds from your description like a dumb woman seen by two witnesses to be on her mobile phone crashes into a car. Probably smart enough to realise that she could be in serious trouble if she lets slip she was on her phone at the time, probably not smart enough to realise she will be banned on health grounds if she concocts a story that she had her first ever blackout immediately before.
Out of curiosity the law is quite clear that you must not be holding and using a mobile phone or satnav simultaneously, and that if you must use a phone it should be firmly mounted e.g. to the windscreen. Fair enough. But as long as it's firmly mounted, does that mean you can read text messages, post on Facebook, dial up a GPS destination etc whilst you're driving (not that I'd condone any of those)? Can you search for music on your (mounted) phone whilst driving? If no to all those, how are most of those any different to using a fitted touchscreen that doubles up as a controller for the car's stereo, aircon and satnav for instance? Can you use a BMW's i system thingy whilst on the move? If so, why not for the same functions in a mounted mobile phone? As noted earlier you sometimes do have to take a hand off the steering wheel to change gear. Why not also to change radio station?
And yes it does seem unfair that if someone with a known health condition drives into a pedestrian as a result of a blackout or similar, leaving them them with a life-changing injury, the victim can claim compensation from the driver's insurance, but if the driver crashes having never previously been known to have a heart condition (or at least never 'fessed up to getting the occasional chest pain that should have been investigated and prevented the accident) and leaves a pedestrian in a wheelchair and out of work, that's just their tough luck. But it seems that's how it goes.
As for the original poster, it sounds from your description like a dumb woman seen by two witnesses to be on her mobile phone crashes into a car. Probably smart enough to realise that she could be in serious trouble if she lets slip she was on her phone at the time, probably not smart enough to realise she will be banned on health grounds if she concocts a story that she had her first ever blackout immediately before.
Out of curiosity the law is quite clear that you must not be holding and using a mobile phone or satnav simultaneously, and that if you must use a phone it should be firmly mounted e.g. to the windscreen. Fair enough. But as long as it's firmly mounted, does that mean you can read text messages, post on Facebook, dial up a GPS destination etc whilst you're driving (not that I'd condone any of those)? Can you search for music on your (mounted) phone whilst driving? If no to all those, how are most of those any different to using a fitted touchscreen that doubles up as a controller for the car's stereo, aircon and satnav for instance? Can you use a BMW's i system thingy whilst on the move? If so, why not for the same functions in a mounted mobile phone? As noted earlier you sometimes do have to take a hand off the steering wheel to change gear. Why not also to change radio station?
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