Driver claiming she blacked out - not liable for crash?!
Discussion
vonhosen said:
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 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.
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.If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
nonsequitur said:
I would argue that if a police traffic car observed a driver holding a phone, they would be within their rights to stop that motorist for a mobile phone offence.
If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
It doesn’t matter how much money you’d put on it. The law requires both, and I’d expect the CPS to be able to produce evidence of both. If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
Alpinestars said:
nonsequitur said:
I would argue that if a police traffic car observed a driver holding a phone, they would be within their rights to stop that motorist for a mobile phone offence.
If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
It doesn’t matter how much money you’d put on it. The law requires both, and I’d expect the CPS to be able to produce evidence of both. If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
nonsequitur said:
Alpinestars said:
nonsequitur said:
I would argue that if a police traffic car observed a driver holding a phone, they would be within their rights to stop that motorist for a mobile phone offence.
If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
It doesn’t matter how much money you’d put on it. The law requires both, and I’d expect the CPS to be able to produce evidence of both. If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
nonsequitur said:
Alpinestars said:
nonsequitur said:
I would argue that if a police traffic car observed a driver holding a phone, they would be within their rights to stop that motorist for a mobile phone offence.
If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
It doesn’t matter how much money you’d put on it. The law requires both, and I’d expect the CPS to be able to produce evidence of both. If they are holding it, they could very well be using it. I would put money on that a holder is almost certainly a user.
KevinCamaroSS said:
There is a small matter of proof. To be using there needs to be proof of use. Holding alone does not provide that proof.
There needs to be evidence so that the court are sure. A phone held as if making a call could be evidence that is capable of getting over that bar. If when stopped, the driver never mentioned it was switched off or out of credit and just playing music or some other obscure reason why they might not be "Using" then a court is entitled to draw an adverse inference if that becomes their defence. There is no legal barrier to a court inferring using from holding - why hold a phone whilst driving if you are not using it. If they do come up with that then the officer will no doubt seize the phone as evidence which is something neither of them want. Each case on it's merits but, at that point, to make the doubt reasonable then a court would probably want some kind of supporting evidence.
As I posted earlier, using is not just making a call. It includes receiving (Not just reading) any electronic message (So email, whatsapp etc etc) or "Providing access to the internet" again not looking at or accessing just providing. So most smart phones switched on, with a signal are being used, for the purposes of the act, nearly all the time. So the corollary is if you are holding one of these phones for any length of time then there is evidence it is probably being used which, a court "Might" decide is enough absent anything to the contrary which casts doubt on it.
Edited by Graveworm on Saturday 19th January 21:10
the tribester said:
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
You were right about everything until the last line. They did not say it was an act of god. If they had, the tp should have said "show me in the policy where you exclude tp payments caused by act of god?" When they couldn't show such an exclusion, they would have had to pay. The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
They never mentioned act of god. What they said was "we aren't paying you because although our client crashed into you, we don't believe he wast legally liable, and you cannot prove he was. And we only cover his legal liability, as per the policy that we can gladly show you".
TwigtheWonderkid said:
the tribester said:
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
You were right about everything until the last line. They did not say it was an act of god. If they had, the tp should have said "show me in the policy where you exclude tp payments caused by act of god?" When they couldn't show such an exclusion, they would have had to pay. The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
They never mentioned act of god. What they said was "we aren't paying you because although our client crashed into you, we don't believe he wast legally liable, and you cannot prove he was. And we only cover his legal liability, as per the policy that we can gladly show you".
Happy to be proven wrong though, by an actual policy wording, with an exclusion using the words 'Act of God'.
KevinCamaroSS said:
There is a small matter of proof. To be using there needs to be proof of use. Holding alone does not provide that proof.
Worth noting from the previous link - https://www.cps.gov.uk/legal-guidance/road-traffic..."In cases where there is uncertainty regarding the nature of the device, or dispute about whether it is being used, the alternative offence under Section 41(D)(a) of the Road Traffic Act 1988 (driving in such a position that he cannot have proper control of the vehicle) may be preferred"
TwigtheWonderkid said:
the tribester said:
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
You were right about everything until the last line. They did not say it was an act of god. If they had, the tp should have said "show me in the policy where you exclude tp payments caused by act of god?" When they couldn't show such an exclusion, they would have had to pay. The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
They never mentioned act of god. What they said was "we aren't paying you because although our client crashed into you, we don't believe he wast legally liable, and you cannot prove he was. And we only cover his legal liability, as per the policy that we can gladly show you".
However, the driver of the car that was crashed into, told me that this is the expression the dead mans insurance company had used in a conversation with him, when they told him they were not going to pay his claim.
I'm not sure why he made up this expression.
the tribester said:
TwigtheWonderkid said:
the tribester said:
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
You were right about everything until the last line. They did not say it was an act of god. If they had, the tp should have said "show me in the policy where you exclude tp payments caused by act of god?" When they couldn't show such an exclusion, they would have had to pay. The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
They never mentioned act of god. What they said was "we aren't paying you because although our client crashed into you, we don't believe he wast legally liable, and you cannot prove he was. And we only cover his legal liability, as per the policy that we can gladly show you".
However, the driver of the car that was crashed into, told me that this is the expression the dead mans insurance company had used in a conversation with him, when they told him they were not going to pay his claim.
I'm not sure why he made up this expression.
Third party insurance is there to protect the insured against third party claims- not to protect third parties directly.
NickGRhodes said:
KevinCamaroSS said:
There is a small matter of proof. To be using there needs to be proof of use. Holding alone does not provide that proof.
Worth noting from the previous link - https://www.cps.gov.uk/legal-guidance/road-traffic..."In cases where there is uncertainty regarding the nature of the device, or dispute about whether it is being used, the alternative offence under Section 41(D)(a) of the Road Traffic Act 1988 (driving in such a position that he cannot have proper control of the vehicle) may be preferred"
the tribester said:
TwigtheWonderkid said:
the tribester said:
There was an accident close to me, where an old boy driving a brand new car, had a heart attack, and T boned another chap sat at some red traffic lights.
The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
You were right about everything until the last line. They did not say it was an act of god. If they had, the tp should have said "show me in the policy where you exclude tp payments caused by act of god?" When they couldn't show such an exclusion, they would have had to pay. The old boy died, of the heart attack, but his insurers refused to pay out for mateys written off car he hit, unless he could prove negligence, in that the old boy knew he was going to suffer a heart attack and still drove .
They said it was an Act of God, so didn't have to pay out, and the chap had to claim off his own fully comp insurance.
They never mentioned act of god. What they said was "we aren't paying you because although our client crashed into you, we don't believe he wast legally liable, and you cannot prove he was. And we only cover his legal liability, as per the policy that we can gladly show you".
However, the driver of the car that was crashed into, told me that this is the expression the dead mans insurance company had used in a conversation with him, when they told him they were not going to pay his claim.
I'm not sure why he made up this expression.
CanAm said:
Mobile mechanics giving advice on insurance matters makes about as much sense as In-sewer-ants Companies giving advice on motoring matters!
Oh bks --- mine does! 
My insurer won prizes for its Plain English policies so we'll have none of that foreign 'Force Majeure' stuff, thank you.
Do Shermans count as "foreign stuff" too?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.
https://www.investopedia.com/terms/a/act-god.asp
selmahoose said:
All that "Act of God" stuff is bollo*ks - please feel free to send me a copy of any insurance policy that uses those words!Any third party insurance claim arises due to negligence, which is somewhat different.
selmahoose said:
"I only ride ’em, I don’t know what makes ’em work."That is an American website, and only gives fuel to idiots like the person who compiled the confused.com "guide".
It has no relevance to UK Law or motor insurance.
Edited by CanAm on Sunday 20th January 08:05
TwigtheWonderkid said:
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.
Nettleship v Weston is probably a better place to start in this situation. To quote Denning "a person injured by a motor car should not be left to bear the loss on his own, but should be compensated out of the insurance fund … But the injured person is only able to recover if the driver is liable in law. So the judges see to it that he is liable" and went on to conclude that "The only alternative is to hold that the accident is the fault of neither, so that the injured party gets no compensation from anyone. To my mind, that is not an acceptable solution, at any rate not in these days of compulsory insurance." Bear in mind that his remarks were aimed at personal injury, not damage to property.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.
I read recently that insurance companies pay 94% of all tort claims in English law.
Graveworm said:
There is no legal barrier to a court inferring using from holding - why hold a phone whilst driving if you are not using it. If they do come up with that then the officer will no doubt seize the phone as evidence which is something neither of them want.
Each case on it's merits but, at that point, to make the doubt reasonable then a court would probably want some kind of supporting evidence.
Using mean using. The inference in reg 110 and the CPS link is that use means using it for the purposes of those set out in defining a mobile device. Playing stored music, checking the time etc is not interactive (or making a call). Each case on it's merits but, at that point, to make the doubt reasonable then a court would probably want some kind of supporting evidence.
Edited by Graveworm on Saturday 19th January 21:10
The evidence is for the CPS/Police to obtain and prove. Not for the defendant to prove his innocence. If the onus is to be pushed to the defendant, it would have been far easier to draft the law to say “holding a mobile device whilst driving is illegal”.
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