Driver claiming she blacked out - not liable for crash?!
Discussion
TwigtheWonderkid said:
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.
You'd better tell this bloke then....https://www.confused.com/home-insurance/guides/con...
selmahoose said:
Indeed. That is absolute 100% rubbish, and I wrote and told them so 2 years ago. If you check on the writer of this piece you will find that his job title was "Search Engine Optimisation".It is scandalous that such dribble is published by a company involved in insurance.
CanAm said:
selmahoose said:
Indeed. That is absolute 100% rubbish, and I wrote and told them so 2 years ago. If you check on the writer of this piece you will find that his job title was "Search Engine Optimisation".It is scandalous that such drivel is published by a company involved in insurance.
https://en.wikipedia.org/wiki/Act_of_God
selmahoose said:
Unfortunately any idiot can write in Wikipedia too.Dig out your Home and Car insurance policies and show us where "Act of God" is excluded.
CanAm said:
selmahoose said:
Unfortunately any idiot can write in Wikipedia too.Dig out your Home and Car insurance policies and show us where "Act of God" is excluded.
2) In reality what are commonly understood as Acts of God are often the very perils that ARE insured.
But if you're interested in the matter you should read the case mentioned in the wiki article . Transco v Stockport Council.
The Hague-Visby Rules' terminology is interesting too.....
Edited by selmahoose on Saturday 19th January 00:55
selmahoose said:
TwigtheWonderkid said:
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.
You'd better tell this bloke then....https://www.confused.com/home-insurance/guides/con...
A more accrate exposition - https://www.thisismoney.co.uk/money/bills/article-...
"Falsehood flies, and the truth comes limping after it.”
Johnathan Swift
A list of the top insurance myths, as revealed by the ABI (Association of British Insurers), the insurance governing body. I think this might be slightly more trustworthy than a "search engine optimisation clerk" at Confused.com.
https://blog.policyexpert.co.uk/insurance-revealed...
https://blog.policyexpert.co.uk/insurance-revealed...
Alpinestars said:
vonhosen said:
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.
nonsequitur said:
Alpinestars said:
vonhosen said:
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.
You can be done for peeling a banana if it causes distraction.
Chromegrill said:
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?
You’d be done for driving without due care and attention. People forget there’s more than one law which can catch phone usage.
Alpinestars said:
Chromegrill said:
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?
You’d be done for driving without due care and attention. People forget there’s more than one law which can catch phone usage.
Each case will rest on it's own facts, but it is the prosecution's burden to show that there was a DWDCA or failure to be in proper control (depending on which offence they go for). The reason for the mobile phone offence being introduced was so that there was no such burden, they merely having to show use & holding not having to show any ill effect or compromised ability from the action.
This is much the same rationale as for the introduction of the offence of speeding, ie introduced so as to remove any burden to show any ill effect or inappropriateness for the speed chosen.
vonhosen said:
I think it would be more accurate to say you 'might' be done for DWDCA with any of those including changing a radio station, rather than 'you'd be done'.
Each case will rest on it's own facts, but it is the prosecution's burden to show that there was a DWDCA or failure to be in proper control (depending on which offence they go for). The reason for the mobile phone offence being introduced was so that there was no such burden, they merely having to show use & holding not having to show any ill effect or compromised ability from the action.
This is much the same rationale as for the introduction of the offence of speeding, ie introduced so as to remove any burden to show any ill effect or inappropriateness for the speed chosen.
Of course. I was trying to illustrate the different laws, not the qualitative nature of DWDCA. The reason people think it’s illegal to hold a phone is usually because of poor use of language by people who try to explain the law, eg, the government website, or because they conflate phone laws with DWDCA. Each case will rest on it's own facts, but it is the prosecution's burden to show that there was a DWDCA or failure to be in proper control (depending on which offence they go for). The reason for the mobile phone offence being introduced was so that there was no such burden, they merely having to show use & holding not having to show any ill effect or compromised ability from the action.
This is much the same rationale as for the introduction of the offence of speeding, ie introduced so as to remove any burden to show any ill effect or inappropriateness for the speed chosen.
CanAm said:
Unfortunately any idiot can write in Wikipedia too.
I couldn't. It was a real nugget as well about a Fifties racing driver who finished up living in a cave in Spain. I put it in and Wikipedia emailed to say the anecdote didn't add to the story and they'd taken it out again.
DickyC said:
I couldn't.
It was a real nugget as well about a Fifties racing driver who finished up living in a cave in Spain. I put it in and Wikipedia emailed to say the anecdote didn't add to the story and they'd taken it out again.
And yet there is an article on a certain historic racing car, 'proving' its provenance, which is, if I'm being generous, rather economical with the truth.It was a real nugget as well about a Fifties racing driver who finished up living in a cave in Spain. I put it in and Wikipedia emailed to say the anecdote didn't add to the story and they'd taken it out again.
vonhosen said:
I think it would be more accurate to say you 'might' be done for DWDCA with any of those including changing a radio station, rather than 'you'd be done'.
Each case will rest on it's own facts, but it is the prosecution's burden to show that there was a DWDCA or failure to be in proper control (depending on which offence they go for). The reason for the mobile phone offence being introduced was so that there was no such burden, they merely having to show use & holding not having to show any ill effect or compromised ability from the action.
This is much the same rationale as for the introduction of the offence of speeding, ie introduced so as to remove any burden to show any ill effect or inappropriateness for the speed chosen.
One could argue mobile phone use has moved on since it now starts at 6 points now whereas DWDC&A still starts at 3Each case will rest on it's own facts, but it is the prosecution's burden to show that there was a DWDCA or failure to be in proper control (depending on which offence they go for). The reason for the mobile phone offence being introduced was so that there was no such burden, they merely having to show use & holding not having to show any ill effect or compromised ability from the action.
This is much the same rationale as for the introduction of the offence of speeding, ie introduced so as to remove any burden to show any ill effect or inappropriateness for the speed chosen.
The legislation as written is really confusing and needs tidying up. "Using" under that with a modern phone means pretty much having it on and in signal.
Let's look at the Or statements.
a mobile telephone or other device is to be treated as hand-held if it is... held at some point during the course of... performing any other interactive communication function;
(c)“interactive communication function” includes the following:
(i)sending or receiving oral or written messages;
(ii)sending or receiving facsimile documents;
(iii)sending or receiving still or moving images; and
(iv)providing access to the internet;
So if the phone even receives a message OR provides access to the Internet whist you hold it.. It fits the definition.
Mine does that all the time.
Edited by Graveworm on Saturday 19th January 17:52
TwigtheWonderkid said:
A list of the top insurance myths, as revealed by the ABI (Association of British Insurers), the insurance governing body. I think this might be slightly more trustworthy than a "search engine optimisation clerk" at Confused.com.
https://blog.policyexpert.co.uk/insurance-revealed...
Hmmm....more true believers? https://blog.policyexpert.co.uk/insurance-revealed...
https://www.theaa.com/home-insurance/advice/act-of...
What about Force Majeure? Does that "count"?
selmahoose said:
Hmmm....more true believers?
https://www.theaa.com/home-insurance/advice/act-of...
What about Force Majeure? Does that "count"?
Mobile mechanics giving advice on insurance matters makes about as much sense as In-sewer-ants Companies giving advice on motoring matters!https://www.theaa.com/home-insurance/advice/act-of...
What about Force Majeure? Does that "count"?
Oh b
ks --- mine does! 
My insurer won prizes for its Plain English policies so we'll have none of that foreign 'Force Majeure' stuff, thank you.
vonhosen said:
Huskyman said:
Holding a phone while driving is an offence. See here https://www.gov.uk/using-mobile-phones-when-drivin...
This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of st she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones.
Using, not just holding is an offence.This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of s
t she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones. shatners bassoon said:
Pro Bono said:
You're wrong. The driver is only legally liable if they were negligent. If they blacked out and had no reason to suspect they might do so it's the equivalent of an Act of God. They are not to blame, they were not negligent, they are not liable to pay compensation and their insurers consequently have no liability to fulfil.
Insurers are there to indemnify you, the insured against having to pay damages. They aren't there to provide a fund for the world at large to dip into. If you aren't liable then neither are they.
Then everyone who causes an accident would use that defence, and the whole concept of blame or 3rd party liability would be destroyed.Insurers are there to indemnify you, the insured against having to pay damages. They aren't there to provide a fund for the world at large to dip into. If you aren't liable then neither are they.
gavgavgav said:
Is sneezing treated in the same way?
Sneezing is classified as an involuntary act beyond a persons control.eldar said:
gavgavgav said:
Is sneezing treated in the same way?
I understand that car’s steering systems are designed to cope with the driver sneezing. The steering has some damping effect. Most vehicles have an element of dampening designed into the steering to make them less prone to moving all over the road when the tyres encounter imperfections in the road, but it has nothing to do with counteracting a driver sneezing.
SydneyBridge said:
If she sticks to saying she had a blackout, someone would need to need to obtain her medical records to see if there is any history at all.
And if the medical records show no history of any blackouts before, or any conditions that could cause a blackout, then what?, she must be faking it? 
If medical records show that a patient could be prone to blackouts, the doctor would/should advise the patient to notify the DVLA, which could result in a driving licence being revoked.
If the doctor believes that the patient hasn't notified the DVLA, or is still driving when they shouldn't, the doctor has a duty of care towards other road users/pedestrians, and a responsibility to notify the DVLA themselves, in the interest of public safety.
See here: https://assets.publishing.service.gov.uk/governmen...
Most of everything else being mentioned in this thread can be found here: https://www.roadlawbarristers.co.uk/two-defences-t...
4rephill said:
vonhosen said:
Huskyman said:
Holding a phone while driving is an offence. See here https://www.gov.uk/using-mobile-phones-when-drivin...
This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of st she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones.
Using, not just holding is an offence.This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of s
t she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones. Holding could be covered by "Not being in full control of the vehicle"
4rephill said:
vonhosen said:
Huskyman said:
Holding a phone while driving is an offence. See here https://www.gov.uk/using-mobile-phones-when-drivin...
This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of st she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones.
Using, not just holding is an offence.This whole sorry state of affairs is just the usual wriggling of the third party’s insurance company, and once the driver realises how much of a world of s
t she’s in then things could get very interesting. I hope she gets the book thrown at her for this, I see too many fools driving and holding their phones. In respect of holding the prosecution would have to satisfy the court that it resulted in a failure to be in proper control if they want to summons for that offence (which is a completely separate offence to the mobile phone legislation & can be used for anything that objectively results in a failure to be in proper control).
nonsequitur said:
I think that the law makers included 'Holding' to cover every excuse that might be put forward by a driver such as 'My phone fell on the floor I was just picking it up' etc. If it's in your hand, you're nicked!
Not enough for the mobile phone offence, the offence also requires using in addition.Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff