Driver claiming she blacked out - not liable for crash?!
Discussion
rallycross said:
Sad Ken said:
Phone records will prove it one way or the other surely?
yes sure (someone ring the FBI quick).But really “phone records” don’t prove you weren’t illegally using your phone.
Edited by NotBenny on Thursday 17th January 20:09
Du1point8 said:
not understanding the 'she blacked out we aint paying' stance?
they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
I'm sure that the insurance experts will be along to explain better, but as I understand it, your insurance covers you for any negligence on your part. they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
If she genuinely blacked out, the insurer would argue that the accident was caused by a medical condition and not negligence, hence not paying out.
Mandat said:
If she genuinely blacked out, the insurer would argue that the accident was caused by a medical condition and not negligence, hence not paying out.
But isn't that then suggesting she failed to inform them of a pre-existing medical condition, in which case her insurance was not valid and she's guilty of causing an accident while driving an uninsured vehicle?Because any other way you slice it, it just seems like an all-too-convenient excuse for anyone who causes a crash.
shatners bassoon said:
I don't know a great deal about insurance liability, but I've never heard of anything like this. Some people have tried using such a defence (blacking out) to avoid dangerous driving convictions, but surely her insurance company should still cover her?
Unfortunately, that's not the case. The insurer is there to indemnify the driver if - and only if - through her negligent driving, she incurs a liability to pay damages to the victim.However, if the driver wasn't driving negligently then she isn't liable to pay damages and the question of an indemnity doesn't arise.
As automatism has been raised as a defence the burden of proof is on the insurers. But they would not only have to prove that she didn't know what she was doing - they would also need to show that she had no reason to think she might black out. For example, they would have to establish that she wasn't on any medication that carried a risk; that she had never suffered any previous symptoms etc.
In practice, this would be quite difficult and potentially expensive, probably involving medical reports and expert evidence.
There's also the point that two witnesses saw her using her phone. Whether or not they are known to the victim is completely irrelevant. They are presumed to be telling the truth unless and until proved otherwise.
The driver's phone records would be potentially useful, and the insurers should be asked to ensure that all such records are preserved. Simply making the request will make them uncomfortable.
Unfortunately, the victim will probably find it hard to get a no win no fee solicitor as she wasn't injured, and they probably wouldn't be able to claim their legal fees.
However if she has legal expenses insurance on her policy she should use this. As such policies are basically just a marketing device for solicitors they'll probably try to avoid taking it on as there's no money in it, but she has a right to insist that they do so in such a case, as there is very clearly a prima facie case against the driver.
As it's a relatively low value claim the insurers won't want to spend a lot of money defending it. Having dealt with hundreds of RTA cases over the years I would have no doubt at all that the insurers will pay if they're pushed, so it's definitely worth pursuing.
Mandat said:
Du1point8 said:
not understanding the 'she blacked out we aint paying' stance?
they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
I'm sure that the insurance experts will be along to explain better, but as I understand it, your insurance covers you for any negligence on your part. they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
If she genuinely blacked out, the insurer would argue that the accident was caused by a medical condition and not negligence, hence not paying out.
shatners bassoon said:
But isn't that then suggesting she failed to inform them of a pre-existing medical condition, in which case her insurance was not valid and she's guilty of causing an accident while driving an uninsured vehicle?
Because any other way you slice it, it just seems like an all-too-convenient excuse for anyone who causes a crash.
The alleged black out may be the first indication of a medical condition, therefore there may not have been any pre-existing conditions to inform DVLA or the insurer about.Because any other way you slice it, it just seems like an all-too-convenient excuse for anyone who causes a crash.
I too thought that insurance would cover you for any & all eventualities, but the legal principle is that insurance covers liabilities arising through negligence.
Mandat said:
The alleged black out may be the first indication of a medical condition, therefore there may not have been any pre-existing conditions to inform DVLA or the insurer about.
Well in that rather unlikely case, her insurer would still be on the hook. It can't be the case that someone can write off another person's car, claim they blacked out for the first time, and the only person who suffers is the one who loses their car - who has to eat the cost of it all in the form of higher insurance premiums and a lost no-claims bonus.
NotBenny said:
Mandat said:
Du1point8 said:
not understanding the 'she blacked out we aint paying' stance?
they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
I'm sure that the insurance experts will be along to explain better, but as I understand it, your insurance covers you for any negligence on your part. they insure her, she has a crash... irrespective of the cause, they pay out and then deal with her and they black outs.
If she genuinely blacked out, the insurer would argue that the accident was caused by a medical condition and not negligence, hence not paying out.
Just because your vehicle damages someone else' vehicle, doesn't mean you are liable. If you weren't negligent, you aren't liable. If 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. It's not her insurers trying it on, that's the cover we all have...legal liability to third parties.
However, DVLA need to be informed and she will have her licence revoked, normally for a year to start with. So it's a pretty daft lie to tell.
shatners bassoon said:
Well in that rather unlikely case, her insurer would still be on the hook.
It can't be the case that someone can write off another person's car, claim they blacked out for the first time, and the only person who suffers is the one who loses their car - who has to eat the cost of it all in the form of higher insurance premiums and a lost no-claims bonus.
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.It can't be the case that someone can write off another person's car, claim they blacked out for the first time, and the only person who suffers is the one who loses their car - who has to eat the cost of it all in the form of higher insurance premiums and a lost no-claims bonus.
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.
But as I said in my last post, the insurers have to prove their case, and if they fail to do so they must cough up. I'd also reiterate that for a low value claim like this there's no way they would run a defence to trial and they will definitely settle the claim if it's pursued properly.
TwigtheWonderkid said:
If 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.
So if someone writes off your car because they black out from an undiagnosed condition, it's YOUR responsibility to eat the cost of that?that doesn't seem in any way fair or rational
shatners bassoon said:
It can't be the case that someone can write off another person's car, claim they blacked out for the first time, and the only person who suffers is the one who loses their car - who has to eat the cost of it all in the form of higher insurance premiums and a lost no-claims bonus.
Completely understand your frustration. If she runs with that defence, it will be to her detriment. She will need to inform the DVLA and as mentioned, likely 12 month ban.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.
shatners bassoon said:
TwigtheWonderkid said:
If 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.
So if someone writes off your car because they black out from an undiagnosed condition, it's YOUR responsibility to eat the cost of that?that doesn't seem in any way fair or rational
No legal requirement for that, just as there isn't for you to insure your phone for damage/loss.
shatners bassoon said:
So if someone writes off your car because they black out from an undiagnosed condition, it's YOUR responsibility to eat the cost of that?
that doesn't seem in any way fair or rational
Try not to get sidetracked by what's fair or appears so or not. that doesn't seem in any way fair or rational
Deal with the facts. The witnesses are independent. The woman and her insurers are trying it on. Unless she said to plod at the time that she blacked out, their evidence should work against that claim.
vonhosen said:
That's what fully comp is about. Covering for losses that somebody else isn't liable for.
That's if we're making the assumption that somebody else isn't in fact liable in this case.It still seems absurd - the idea that you have to cover yourself against not just uninsured drivers, but also those who might try to use an asymptomatic and singular medical episode to avoid culpability for destroying your vehicle.
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