Driver claiming she blacked out - not liable for crash?!

Driver claiming she blacked out - not liable for crash?!

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Discussion

StevenB

777 posts

197 months

Thursday 17th January 2019
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Even if she did black out, she caused the crash whichever way you look at it, so her insurance should cover it. to my un-legal brain

NotBenny

3,917 posts

180 months

Thursday 17th January 2019
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rallycross said:
Sad Ken said:
Phone records will prove it one way or the other surely?
yes sure (someone ring the FBI quick).
What phone records are you on about? Yeah, maybe if she was calling someone or a text message was being sent, but otherwise the phone company could say “data was being used” which could be background app updates, or google maps being used without the phone being touched (completely legal). She could have been writing/reading a text which would show on phone usage but is illegal, she could even have been playing solitaire with the phone in aeroplane mode.

But really “phone records” don’t prove you weren’t illegally using your phone.

Edited by NotBenny on Thursday 17th January 20:09

Du1point8

21,607 posts

192 months

Thursday 17th January 2019
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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.

Mandat

3,886 posts

238 months

Thursday 17th January 2019
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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.

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

Original Poster:

150 posts

198 months

Thursday 17th January 2019
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Du1point8 said:
not understanding the 'she blacked out we aint paying' stance.
Yep, that's what perplexed me the most too.

Because otherwise anyone could use that defence to weasel out of culpability for any crash they cause

roadsmash

2,622 posts

70 months

Thursday 17th January 2019
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I hope the lying cow gets banned by the DVLA from driving for at least a year due to her “blackout.”

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
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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.

Pro Bono

594 posts

77 months

Thursday 17th January 2019
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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.

NotBenny

3,917 posts

180 months

Thursday 17th January 2019
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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.

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.
No - insurance doesn’t solely cover negligence

Mandat

3,886 posts

238 months

Thursday 17th January 2019
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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.

I too thought that insurance would cover you for any & all eventualities, but the legal principle is that insurance covers liabilities arising through negligence.

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
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I've suggested for now that he get his insurers and her insurers to deliver their take on things in writing.


I think she's using the blackout story as a crude attempt to avoid a DWDCA conviction.

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
quotequote all
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.

TwigtheWonderkid

43,351 posts

150 months

Thursday 17th January 2019
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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.

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.
No - insurance doesn’t solely cover negligence
That's all it covers as far as your third party liability is concerned. Insurance covers your legal liability to third parties. If you aren't negligent, your aren't legally liable for tp damage or injury, so your insurance won't pay.

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.

Pro Bono

594 posts

77 months

Thursday 17th January 2019
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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.

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.

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
quotequote all
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

g3org3y

20,627 posts

191 months

Thursday 17th January 2019
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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.

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
quotequote all
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.


vonhosen

40,233 posts

217 months

Thursday 17th January 2019
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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
That's what fully comp is about. Covering for losses that somebody else isn't liable for.
No legal requirement for that, just as there isn't for you to insure your phone for damage/loss.


Pothole

34,367 posts

282 months

Thursday 17th January 2019
quotequote all
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.

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.

shatners bassoon

Original Poster:

150 posts

198 months

Thursday 17th January 2019
quotequote all
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.