Driver claiming she blacked out - not liable for crash?!
Discussion
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"
. Alpinestars said:
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).
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”.
Everything you say is correct. The onus is not pushed onto a defendant. The fact that there may possibly be another innocent explanation for the evidence, doesn't mean automatically that there is insufficient evidence to make out the offence in the first place. Especially given the nature of adverse inferences, which might well feature here. 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”.
It's down to the court whether the circumstances dictate it was being used as a matter of fact. There is no reason why holding can't form some or, if they chose, all of that evidence. Depending on how it was being held etc.
Self declared loss of consciousness at the wheel resulting in an RTC will need to be declared to DVLA and is likely to result in 6 to 12 months revocation pretty quickly.
If the police were involved they would be very likely to submit a report ASAP to DVLA rather than prosecute for DWDCA if there was a poss of a medical issue, it's often quicker
If the police were involved they would be very likely to submit a report ASAP to DVLA rather than prosecute for DWDCA if there was a poss of a medical issue, it's often quicker
I watched a good friend of mine suffer the ‘not liable’ thing very recently.
He was driving his 530D on the motorway on the way back from a meeting, and a lorry trailer in front of him blew a tyre. The tyre tread and trailer mudguard ended up flying across the carriageway and landing in his lane and he hit them at about 80mph.
Long story short is that it wrote his car off.
After ages on the side of the motorway and eventually getting his car trailered home he phoned me about it, and asked advice on how to go about claiming from the haulage company (the lorry had stopped as well and he got all the details).
I informed him that it was unlikely that he would be getting anything from the lorry insurers.
He didn’t believe me at all.
But the next day he phoned me absolutely raging about the fact that the haulage firm and their insurers had straight away gone down the ‘not negligent, not liable - aren’t paying’ route. Something he had never heard of in his life.
He ended up having to lose all his no claims as his own insurance had to pay out for his written off car.
He was so pissed off.
He was driving his 530D on the motorway on the way back from a meeting, and a lorry trailer in front of him blew a tyre. The tyre tread and trailer mudguard ended up flying across the carriageway and landing in his lane and he hit them at about 80mph.
Long story short is that it wrote his car off.
After ages on the side of the motorway and eventually getting his car trailered home he phoned me about it, and asked advice on how to go about claiming from the haulage company (the lorry had stopped as well and he got all the details).
I informed him that it was unlikely that he would be getting anything from the lorry insurers.
He didn’t believe me at all.
But the next day he phoned me absolutely raging about the fact that the haulage firm and their insurers had straight away gone down the ‘not negligent, not liable - aren’t paying’ route. Something he had never heard of in his life.
He ended up having to lose all his no claims as his own insurance had to pay out for his written off car.
He was so pissed off.
Lord Marylebone said:
I watched a good friend of mine suffer the ‘not liable’ thing very recently.
He was driving his 530D on the motorway on the way back from a meeting, and a lorry trailer in front of him blew a tyre. The tyre tread and trailer mudguard ended up flying across the carriageway and landing in his lane and he hit them at about 80mph.
Long story short is that it wrote his car off.
After ages on the side of the motorway and eventually getting his car trailered home he phoned me about it, and asked advice on how to go about claiming from the haulage company (the lorry had stopped as well and he got all the details).
I informed him that it was unlikely that he would be getting anything from the lorry insurers.
He didn’t believe me at all.
But the next day he phoned me absolutely raging about the fact that the haulage firm and their insurers had straight away gone down the ‘not negligent, not liable - aren’t paying’ route. Something he had never heard of in his life.
He ended up having to lose all his no claims as his own insurance had to pay out for his written off car.
He was so pissed off.
The route they took is the correct one though. This is why we have Fully Comp cover, it would be a lot worse losing the whole value of your car. If your car gets stolen, then you lose some No Claims, but at least you don’t have to pay to replace the whole car and that’s not your fault either. He was driving his 530D on the motorway on the way back from a meeting, and a lorry trailer in front of him blew a tyre. The tyre tread and trailer mudguard ended up flying across the carriageway and landing in his lane and he hit them at about 80mph.
Long story short is that it wrote his car off.
After ages on the side of the motorway and eventually getting his car trailered home he phoned me about it, and asked advice on how to go about claiming from the haulage company (the lorry had stopped as well and he got all the details).
I informed him that it was unlikely that he would be getting anything from the lorry insurers.
He didn’t believe me at all.
But the next day he phoned me absolutely raging about the fact that the haulage firm and their insurers had straight away gone down the ‘not negligent, not liable - aren’t paying’ route. Something he had never heard of in his life.
He ended up having to lose all his no claims as his own insurance had to pay out for his written off car.
He was so pissed off.
You don’t lose all your No Claims for one claim.
Mr Tidy said:
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!
Here's an extract of an explanation of part of Article 4. :
The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war.
selmahoose said:
Okay.....the Hague-Visby rules which outline maritime carriers' liabilities. Read article 4. "Act of God" features prominently.
Here's an extract of an explanation of part of Article 4. :
The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war.
Fascinating reading - but can you explain how on earth this Belgian convention on the Here's an extract of an explanation of part of Article 4. :
The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war.
responsibilities of marine cargo carriers (which is NOT an insurance document) has the slightest connection with British motor insurance?
CanAm said:
selmahoose said:
Okay.....the Hague-Visby rules which outline maritime carriers' liabilities. Read article 4. "Act of God" features prominently.
Here's an extract of an explanation of part of Article 4. :
The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war.
Fascinating reading - but can you explain how on earth this Belgian convention on the Here's an extract of an explanation of part of Article 4. :
The carrier's duties are not "strict", but require only a reasonable standard of professionalism and care; and Article IV allows the carrier a wide range of situations exempting them from liability on a cargo claim. These exemptions include destruction or damage to the cargo caused by: fire, perils of the sea, Act of God, and act of war.
responsibilities of marine cargo carriers (which is NOT an insurance document) has the slightest connection with British motor insurance?
s off might be one of the first things you heard.Will that do as a 'slight connection'?
selmahoose said:
If your car (insured by Direct Line or Admiral) was damaged by an Act of God whilst in transit as cargo on a ship on its way back to Blighty from some far flung location, when you tried claiming the ship's insurers in respect of the damage I imagine a quote from the Hague-Visby Rules inviting you to ps off might be one of the first things you heard.
Will that do as a 'slight connection'?
Err, no.s off might be one of the first things you heard.Will that do as a 'slight connection'?
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...
In the linked page it says "A phone or device will be in use where it is making or receiving a call, or performing any other interactive communication function whether with another person or not." and I take that to mean if a person looks at the phone or phone display and presses a button or selects the visual representation of a button than, at that point, interactive communication has taken place. Specifically, the person has interacted with (communicated with) the phone.
It goes on to say "The particular use to which the mobile phone must be put is not defined as an element of the offence. The prosecution must merely prove that the phone or the other device was hand-held by the person at some point during its use at a time when the person was driving a vehicle on a road." which suggests to me that the commonly understood definition is how the law is interpreted.
Edited to add a note of explanation about why I think how I interpret this make more sense ...
The example of reading and sending a text message should be suitably illustrative. Sending and receiving text messages do not involve communication between the mobile phone and the cellular network; at the time a text message is being read, it has been delivered to the mobile phone and is sitting inside the mobile phone, waiting for the user to read it. Similarly, composing a text message does not involve communication between the mobile phone and the cellular network; the message is composed in its entirety before it is sent. The acts of reading and composing text messages, during which the user interacts with the small computer that is in their hand, is the essence of what's distracting about the use of mobile phones while driving.
Edited by AnotherGareth on Monday 21st January 14:59
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff