I was riding along a four-lane stretch of motorway, two-up in the second lane, when I was smacked in the fairing by a chunk of tyre. To my right I could see a Ford Focus grinding along the central reservation. The Focus then span and slewed across lanes four, three and two, coming to rest in the hard shoulder.
As the Focus was sliding across my path I braked hard, the front end went out from underneath me, and my now-ex-girlfriend (nothing to do with the crash, we just split up) has got solicitors who have written to me demanding compensation.
Now the Focus driver’s Insurers have told my insurers that I have no claim. “Negligence cannot be proven against our Insured,” they said.
My Insurance is fully comprehensive but my premium has risen massively. There can be no doubt the accident was not my fault, but I have lost my no-claims bonus and I am now being sued by my ex. I am particularly annoyed that the kit I bought for her as a gift has now formed part of her claim against me. Is this really right In law?
You are right that you have done nothing wrong. The Focus driver has to prove that his tyre blew out without negligence on his part. The rule is an ancient evidential maxim called Res ipsa loquitur.
This can be summarised as, “The thing speaks for itself.” More precisely, it means that where an accident has been caused by something in the defendant’s control, and which if ordinarily managed properly should not have happened, then you can say, “You caused the crash, you prove it was not negligence on your part.”
That means the insurer for the Focus driver has to show there was some non-negligent cause as to why this Ford Focus blew its tyre out. Tyres can blow out non-negligently but it is very rare. Unfortunately insurance clerks or paralegals masquerading as lawyers are unlikely to know this. You do not have to prove negligence.
I have seen enough blown tyres to know from your photos that the tyre has literally shredded, from which I draw the inference that it has been run at low pressure for a long time, overheated and shredded. This type of tyre damage Is called delamination and I see it a lot.
Your ex-girlfriend probably told her claims company that she was riding pillion, you fell off without striking another vehicle, and she was injured. Your insurers should be directing her claim to the Focus driver’s insurer.
Disturbingly your insurers seem to want to take the path of least resistance and pay for your ex-girlfriend’s modest claim. The kit you gave her is properly part of her claim. It is damaged and needs replacing. The fact she received it as a gift from you is not relevant. However, I am deeply cynical about why your insurers want to pay out.
You need to warn your insurers If they pay out to your ex without good legal reason, or do not seek to recover their outlay from the driver of the Ford Focus, that you will be taking them to the Financial Conduct Authority. They are only supposed to pay out when you are at fault, and recover their outlay in a non-fault accident. Bearing in mind that the damage to your bike was very modest, and your ex-girlfriend’s claim is unlikely to be more than a few hundred pounds, it is bizarrely in your insurance company’s interests to treat this accident as one where you are to blame – because they can take a £400 excess from you and load your insurance policy for the next five years.
It seems to me that your Insurance company will be quite happy to lay out perhaps £1000 in claims costs, damage to your bike and your girlfriend’s claim. Your insurance renewal has gone up by nearly £800, and with a £400 policy excess they’ve made their money back in the first year. Where someone who is allegedly acting in your interests does something utterly irrational, a good idea Is to follow the money – and in this case the money is made by stitching you up. It is either incompetent or cynical, but either way it is wrong.
RiDE Magazine January 2017